and infamy of the said J. R. and W. H. as such commissioners as aforesaid, in disparagement of the said proceedings of the said commissioners, in disturbance of the administration of justice, and in contempt of the government of our lord the king, and his laws, Second count, and against the peace, &c. And the said attorney general, &c. that whilst the said J. R. and W. H. being such commissioners for hearing and determining appeals relating to the duties upon income arising in the respective wards of Cumberland, Eskdale, and Leath, as aforesaid, were acting in the execution of their said office in hearing and determining certain appeals of divers persons relating to the duties upon income brought before them at a certain meeting duly holden by them the said commissioners for that purpose on the said, &c. at, &c. aforesaid, for the said M. J. being a wicked and ill disposed person, and a disturber of the peace of our lord the king, and wickedly intending to bring into disgrace and contempt the said J. R. and W. H. as such commissioners as aforesaid, and the proceedings of the said commissioners in hearing and determining appeals, came, and then and there, to wit, at, &c. aforesaid, scandalized, insulted, and vilified the said commissioners so being in the execution of their said office, by saying to the said commissioners, in the presence and hearing of the said commissioners, these false, malicious, scurrilous, and contemptuous words following, that is to say, &c. [set out the words and conclude as before, and as ante 6.] 917. 1 CHAPTER XV. OF OFFENCES AGAINST PERSONAL PROPERTY. LARCENY. (a) PRELIMINARY NOTES. The offence in general. Larceny is the wrongful taking and car- The offence. rying away of the personal goods of any one from his possession, with a felonious intent to convert them to the use of the offender, without the consent of the owner, 2 East, P. C. 553. 2 Leach, 838. To constitute this offence, therefore, in any form, there must be a taking from the possession, a carrying away against the will of the owner, and a felonious intent to convert it to the offender's use. We will first consider these requisites and then examine the degrees of larceny, and investigate the aggravations by which it may be attended. And, therefore, I. There must be a taking from the possession. if a party lawfully acquire possession of goods misapply them, this is no felony, 2 Leach, 835. includes the idea of trespass, and, therefore, if the party be guilty of no trespass in taking the goods, he can commit no felony in carrying them away, Hawk. b. 1. c. 33. s. 1. goods and convert them to his own use, this and the same rule applies where the party is entrusted with the (a) As to this subject, in general, see Hawk. b. 1. c. 33. 4 Bla. Com. 229 to 250. Com. Dig. Justices O. 4, 5, 6, 7, 8. 2 East, Crim. Law. Thus if a man find will be no larceny; P. C. 524 to 791. Burn J. Lar- VOL. III. goods for a specific purpose, so that he is invested with a temporary property in them, Hawk. b. 1. c. 33. s. 2. But if he severs part of them for the purpose of taking he destroys the privity of the bailment, and commits a new trespass which makes his offence complete, id. s. 4. In order to determine whether a particular appropriation is larceny, it will be often necessary to enquire whether the owner parted with the property in his effects, or only with the actual possession, retaining still the dominion over them. Thus a shepherd who has the charge of a flock, a butler who takes care of plate, a servant who keeps the key of a chamber, and a guest who has valuable property to use at an inn, have manifestly no interest in the things they are to use or preserve, and may be said with propriety to take them, Hawk. b. 1. c. 33. s. 6. So if a master delivers property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or deposit with a banker, the latter will be guilty of felony in applying it to his own use, for it still remains in the constructive possession of its owner, 2 Leach, 870. And if a surrogate gives his clerk a sum of money for the express purpose of buying blank licences, and he embezzles it, he will be criminal, 2 East, P. C. 563. If a banker's clerk is sent to the money-room to bring cash for a particular purpose, and he takes the opportunity of secreting some for his own use, 1 Leach, 344.—if a tradesman entrusts goods to his servant, to deliver to his customer, and he appropriates them to himself, 1 Leach 251.—if a person wilfully retains goods delivered to him to repair, to cleanse, to pawn, or to preserve, Hawk. b. 1. c. 33. s. 10. the parties are respectively guilty of felony. And if several persons play together at cards and deposit money for that purpose, and one sweep it all away and take it himself, he will be guilty of theft if the jury find that he acted with a felonious design, 1 Leach 270. But as the property must, at the time of the offence, be either in the actual or constructive possession of the owner, it was held that where a banker's clerk had received a note for the use of his master, and applied it to his own, he was guilty only of a breach of trust, 2 Leach, 835. In consequence of this determination the 39 Geo. III. c. 85, was passed, which enacts," that if any servant or clerk, or any person employed for the purpose or in the capacity of a servant or clerk to any person or persons whomsoever, or to any body corporate or politic, shall, by virtue of such employment, receive or take into his possession any money, goods, bond, bill, note, banker's draft, or other valuable security or effects, for, or in the name, or on aecount of his master or masters, or employer or employers, and shall fraudulently embezzle, secrete, or make away with the same, or any part thereof; every such offender shall be deemed to have feloniously stolen the same from his master or masters, employer or employers, for whose use, or in whose name or names, or on whose account, the same was or were delivered to, or taken into the possession of such servant, clerk or other person, so employed, although such money, &c. was or were no otherwise received into the possession of such master or masters, employer or employers, than by the actual possession of his or their servant, clerk, or other person so employed, and every such offender, his adviser, procurer, aider or abettor, shall be liable to be transported for fourteen years, in the discretion of the court in which he isconvicted." (b) But though there must be a taking from the actual or constructive possession of the owner, there is no occasion that it should be by the hand of the party accused. For if he procured an innocent agent, as a child or a lunatic to take the property, or if he obtained it from the sheriff by a replevin without colour of title, and with a felonious design, he will himself be a principal offender, Hawk. b. 1. c. 33. s. 12. II. There must be a carrying away.—And therefore, if a thief cuts a belt on which a purse is hung, and it drops to the ground where he leaves it, or if he compels a man to lay down goods which he is carrying, and is apprehended before he raises them from the ground, the crime is incomplete, 1 Leach, 322. n. b. 1 Hale, 533. And if goods are tied to a string, which is fastened at one end to a counter, and a person intending to steal them takes hold of the other, and removes them towards the door as far as the string will permit him, this will be no felony. So where the prosecutor had his keys tied to the strings of his purse in his pocket, which the prisoner endeavoured to take from him and was detected with the purse in his hand, but the strings still hung to the pocket by the keys, this was holden to be no asportation, and, therefore, no larceny was committed, 1 Leach, 321. n. a. 1 Hale 508. But a very slight asportation will suffice. Thus to snatch a diamond from a lady's ear, which is instantly dropped among the curls of her hair, 1 Leach, 320; to remove sheets from a bed and carry them into an adjoining room, 1 Leach, 222, in notes-to take plate from a trunk, and lay it on the floor with intent to carry it away, ibid.— and to remove a package from one part of a waggon to another, with a view to steal it, 1 Leach, 236. have respectively been holden to be felonies. But if the defendant merely change the position of a package from lying endways to lengthways, for the greater convenience of taking out its contents, and cuts the outside of it (b) See post 935. by whom larceny may be committed, and the precedents, for that purpose, but is detected before he has taken any thing, there will be no larceny committed. id. ibid. in notes. III. The taking must be against the will of the owner. And, therefore, if the goods are taken with the consent or privity of the wife, no larceny will be committed, 1 Leach, 47. But if the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design, and lead them on till the offence is complete, so long as he did not induce the original intent, but only provided for its discovery, after it was formed, the criminality of thieves will not be destroyed. 2 Leach, 913. So if a man is suspected of an intent to steal, and another to try him leaves property in his way, which he takes, he is guilty of larceny. 2 Leach, 921. And if, on thieves breaking in to plunder a house, a servant, by desire of his master, show them where the plate is kept which they remove, this circumstance will not affect the crime. 2 Leach, 922. IV. The intent must be felonious. No larceny will, therefore, be committed when the goods are taken on a claim of right, however unfounded as, if the owner of land takes cattle, damage feasant, or a lord seizes them as estrays, though no real title exists, he will only be liable to an action. 1 Hale, 506, 7. And even when on the seizure of uncustomed goods, a number of persons break into the place where they are deposited, in order to retake them for the original proprietor, they will be guilty of no stealing at common law, though it would be a rescue within the statute. 2 East, P. C. 510. But if there be no pretence or color of title, though possession be obtained by act of law, as if a house is entered under a fraudulent ejectment and goods seized, or property be obtained by wilful perjury, the offence is rather aggravated than reduced, even in its legal complexion. Kel. 43. We have seen that a taking by finding, and a subsequent conversion, will not amount to a felony. But if the goods are found in the place where they are usually suffered to lie, as a horse on a common, cattle in the owner's fields, or money from a place, where it clearly appears the thief knew the owner to have concealed it, the taking will be felonious. So if a parcel be left in a hackney coach, and the driver opens it, not merely from curiosity, but with a view to appropriate part of its contents to his own use, or if the prosecutor orders him to deliver the package to the servant, and he omits so to do, he will be guilty of felony. 1 Leach, 413. 5. and, in notis. What the intent of the party in all cases is, it is the province of the jury to determine, id. ibid. Where the taking exists, but without fraud, it may amount only to a trespass. This is also a point frequently depending on cir |