stances must be pregnant; otherwise it may be reasonably interpreted to be a bare finding, because the purse was deposited in so unusual a place. But where a gentleman left a trunk in a hackney coach, and Stealing box the coachman took and converted it to his own use; held felony: for he must have known where he took up the gentleman and his trunk, and where he set him down; and therefore he ought to have restored it to him. So also in the case of Wm. Wynne, at the O. B. in April Sess. 1786. The prisoner, who was a hackney coachman, had taken up the prosecutor with several packages at the Adelphi, and set him down in Orchard-street, where the prisoner and a servant took all the things out of the coach except one corded box, which remained under one of the seats, and contained several articles, for the stealing of which the prisoner was indicted. The prisoner having received his fare, drove off; soon after which the box was missed, and all possible means were used that day to discover it, but without effect. In a few days, however, the prisoner was traced and taken, and the box found at a jew's, whither it had been carried by the prisoner uncorded, the hasps forced off, and part of the goods only in it; several papers were missing, and among them two bonds mentioned in the indictment. Eyre B. observed to the jury, that as the prisoner had not originally taken possession of the property himself, but had it thrown upon him by the negligence of the prosecutor in leaving the box behind him in the coach, no felonious intention could be supposed to exist in the mind of the defendant, at the moment the property was first acquired; and although the subsequent circumstance of keeping it until it was advertised, was a breach of moral duty, it could not of itself be legally considered as a criminal conversion. But if from the evidence the jury were satisfied in their consciences, that he had opened the box, not merely from curiosity, but with an intention to embezzle any part of its contents, and that he had actually taken the goods, it would become a matter of legal consideration whether it was felony. The jury found the prisoner guilty: and, in Easter term, 1786, a majority of the judges held the conviction proper, and in July session following, he received sentence of transportation for seven years. At O. B. Jan. Sess. 1789. John Sears was indicted before Ashhurst J. for stealing a parcel of calico, &c. the property of Sarah Dixon. The prosecutrix hired the prisoner, who was a hackney coachman, to drive her from her house in Manchester Buildings to a linen draper's in Oxford-street, where she purchased the articles named in the indictment, which were tied up in a parcel and put into the coach. The prisoner drove back to Manchester-buildings and the prosecutrix on getting out of the coach ordered him to give the parcel to her servant, but he neglected so to do. The things were advertised, and a reward offered to any person who would restore them, but without effect. A few days afterwards the prosecutrix met the prisoner, but he denied ever having seen her or the things, or having driven the coach at the time. The goods however were traced to the prisoner's possession, and the parcel had been opened. Upon this evidence the prisoner was convicted of felony, and sentenced to six months imprisonment. left in a hack. Lamb's case, 2 East's P. C. 664. Wynne's case Leach, 413. 2 East's P. C. 664. 2 Russ. 1042. Sear's case, 1 Leach, 415. n. (b.) The doctrine as to a felonious taking of goods, which have been Cases of bank notes, &c. found and converted to their own use. Anon. cor. Lawrence J. Stafford Sum. by the prisoners, found by the party, was further confirmed in two more recent cases. In the first, it appeared that a pocket-book containing bank notes had been found by the prisoner in the highway, and afterwards converted by him to his own use. Upon which Lawrence J. observed, that if the party finding property in such manner knows the owner of it, or if there be any mark upon it by Ass. 1804. MS. which the owner can be ascertained, and the party, instead of restoring the property, converts it to his own use, such conversion will constitute a felonious taking. And, in the other case, the two prisoners (father and son) were convicted of stealing a bill of exchange, upon evidence of their having found and converted it to their own use, by endeavouring to negociate it. Gibbs J. stated to the jury that it was the duty of every man who found the property of another to use all diligence to find the owner and not to conceal the property (which was actually stealing it) and appropriate it to his own use. R. v. J. & B. MS. Cartwright v. Green, 8 Ves. 405. 2 Leach, 952. 2 Russ, 1045. Conversion of a large sum of money, with a felonious intent, which was found in a bureau delivered to a A singular case occurred at no very distant period, of a conversion, with a felonious intent, of a large sum of money found in a bureau, which had been delivered to a carpenter, for the purpose of being repaired. The point arose in the Court of Chancery upon the following facts: Ann Cartwright died possessed of the bureau, in a secret part of which she had concealed nine hundred guineas in specie. After her death Richard Cartwright, her personal representative, lent the bureau to his brother Henry; who took it to the East Indies and brought it back, without the contents of it being discovered. It was then sold to a person named carpenter to be Dick for three guineas, who delivered it to one Green a carpenter, repaired. for the purpose of repairing it. Green employed a person named Hillingworth, who found out the money. Hillingworth received only a guinea for his trouble; but, in consequence of his discovery, the whole sum of nine hundred guineas was secreted by Green, by Green's wife, and by one Elizabeth Sharp, and converted to their own use. On these suggestions, Cartwright, the personal representative of the original owner of the bureau, filed a bill of discovery against Green and his wife, and Mrs. Sharpe; in which Bill Dick joined, but did not claim any of the money on his own account; and the defendants demurred to the bill on the ground that an answer to the discovery sought might subject them to criminal punishment. After the argument upon this demurrer, the Lord Chancellor said, that the real question was, whether the bill charged a felony, and that the distinctions upon that point were so extremely nice, that he should not trust himself to say any thing upon them, until he had seen all the cases, and consulted some of the judges. Some time afterwards his lordship delivered his opinion and said, "I have looked into the books, and having "talked with some of the judges and others, I have not found "in any one person a doubt, that this is a felony. To constitute "felony, there must of necessity be a felonious taking. Breach of "trust will not do. But from all the cases in Hawkins, there "is no doubt that this bureau being delivered to Green, for no "other purpose than to repair, if he broke open any part which "it was not necessary to touch for the purpose of repair, with an "intention to take and appropriate to his own use what he should "find, that is a felonious taking, within the principle of all "the modern cases; as not being warranted by the purpose for 28 April 1803. "which it was delivered. If a pocket-book containing bank-notes "were left in the pocket of a coat sent to be mended, and the "tailor took the pocket-book out of the pocket, and the notes "out of the pocket-book, there is not the least doubt that it is a "felony. So, if the pocket-book was left in a hackney coach, "if ten people were in the coach in the course of the day, and "the coachman did not know to which of them it belonged, he acquires it by finding it certainly; but not being intrusted with "it for the purpose of opening it, that is felony, according to the "modern cases. There is a vast number of other cases. Those See Wynne's "with whom I have conversed upon this point, who are of very "high authority, have no doubt upon it." 66 Ld. Hale says, if one man take another man's hay or corn, and mingle it with his own heap or stock; or take another man's cloth and embroider it with silk or gold; such other person may retake the whole heap of corn, or cock of hay, or garment and embroidery also; and this retaking is no felony, nor so much as a trespass. 1 Hale, 513. There must be an actual taking or severance of the thing from the possession of the owner; for all felony includes trespass; and every indictment must have the words feloniously took, as well as carried away: from whence it follows, that if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away. 1 Haw. c. 33. § 2. case ante, p. 179. Taking hay or corn and mixing it with others. Must be an actual taking from the possession of the owner. The possession of the owner may be actual or constructive; Of actual and that is, he may have the goods in his manual possession, or they constructive may be in the actual possession of another, and at the same time possession. be constructively in the owner's possession; and they may be his property by virtue of some contract, and yet not have been reduced by him into actual possession, in which case his possession is constructive: they may be placed by him under his servant's care, to be by him managed for him; in this case the owner has a constructive possession. Besides the actual and constructive possession in the owner, who at the same time has the property in him, there is a possession distinct from the actual property, but arising out of an interest in the goods acquired by contract; as in the case of one who has possession of goods in pledge, or of goods lent, or let: such a one has a property (as well as possession) concurrent with the absolute property of the real owner, and either defeasible or reducible into an absolute property, according to the terms agreed upon between him and the actual owner. The above several kinds of possession will all be sufficient to sustain an indictment of larceny from the alsolute owner. The books notice cases in which although the manual custody be out of the owner and delivered by him to another, yet the possession, absolute as well as constructive, is deemed to remain in him, and the possession of the other to be no more than a bare charge. 66 Upon this difference between a possession and a charge, Lord Coke speaks as follows: "There is a diversity between a possession and a charge; for when I deliver goods to a man, he hath the possession of the goods and may have an "action of trespass, if they be taken or stolen out of his "possession. 46 Difference between a pos session and a charge. But my butler or cook, that in my house hath Butler or cook. Shepherd. Taverner's guest. Servant. Carrier. "charge of my vessel or plate, hath no possession of them, nor "shall have an action of trespass as the bailee shall: and there"fore if they steal the plate, &c. it is larceny; and so it is of a shepherd, for these things be in onere et non in possessione "promi, coci, pastoris, &c." So he says, if a taverner set a piece of plate before a man to "drink in it, and he carry it away, &c. it is larceny; for it is no bailment, but a special use to a special purpose." Then as to those cases which lie in possessione, he draws a distinction between such as gain possession animo furandi, and such as do not; he says, "the intent to steal must be when it comes to "his hands or possession; for, if he hath the possession of it once "lawfully, though he hath the animum furandi afterwards and "carrieth it away, it is no larceny." 3 Inst. 47. 107. But the servant who keeps a key to my chamber may be guilty of felony in fraudulently taking away the goods therein, for he hath only a bare charge given him. And so if a weaver who has received silk to work, or a miller who has corn to grind, take out part thereof, with intent to steal it, it is felony. 1 Haw. c. 33. § 56. Another case is that of the carrier, and it is laid down in the See vol.i. p.457. books, that if, while his contract is in the course of completing, he open the pack and take out a part of the goods, he commits a larceny: but if he run away with the whole, it is a breach of trust and no larceny. So of a tun of wine. But if after arriving at the place where he should deliver his charge he steal a part, or the whole, it is larceny. 1 Hale, 504. Staundf. 21 H. 8. c. 7. Servants em bezzling their 25. a. The above cases seem exceptions to the rule that no felony can be committed by his stealing the goods to whom they were delivered in possession by the owner in a way which excludes the supposition of their being originally taken with a felonious intent. But, in truth, the reason of the distinction seems this: Though the carrier, &c. have originally the goods delivered to them upon a trust, yet they are delivered as one whole and inseparable thing, and the only trust committed to him is over them in that state; and therefore his possession is a limited one: but, if he separate them, it is exercising an act of ownership not given to him over each part, and is therefore the same as an originally unlawful taking of that individual part, and it is also a carrying away by the mere act of separation. And this distinction should be carefully remembered, as it includes a number of cases very likely to occur in practice, viz. where a part is separated from a thing delivered entire. By the common law therefore, he who had goods delivered to him by the owner, thereby originally gaining a legal possession of them, could not by converting them to his own use with intent to steal, be deemed a felon and guilty of larceny. And it seems from 1 Hale, 505. that servants stood in the same situation, in this respect, as strangers; in order therefore that masters might be secured from the consequences resulting from the trust they were obliged to repose in their servants, By 21 H. 8. c. 7. reciting that divers persons had, upon confidence and trusts, delivered unto their servants their caskets and other jewels, money, goods, and chattels safely to be kept to the use of their said masters or mistresses, and that they had after- 21 H. 8. c. 7. wards withdrawn themselves, and had gone away with the same, masters' proor part thereof, to the intent to steal the same, and sometimes perty, being with their said masters, &c. had converted the same, or part thereof, to their own use; which misbehaviour so done, was doubtful in the common law whether it were felony or not, it is enacted. "That all and singular such servants (being of the age "of 18 and not apprentices), to whom any such caskets, &c. "by his or their said masters and mistresses shall from hence"forth be so delivered to keep, if any such servant or servants "withdraw him or them from their said masters and mistresses, "and go away with the said caskets, &c. or any part thereof, to "the intent to steal the same and defraud his or their said mas"ters or mistresses thereof, contrary to the trust and confidence "to him or them put by his or their said masters or mistresses; " or else being in the service of the said master or mistress, "without assent or commandment of his masters or mistresses, "he embezzle the same caskets, &c. or any part thereof, or "otherwise convert the same to his own use with like purpose "to steal it; that if the said caskets, &c. that any such servant "shall so go away with, or which he shall embezzle with purpose to steal it as is aforesaid, be of the value of 40s. or above; "that then the same false, fraudulent, and untrue act or demea"nor from henceforth shall be deemed and adjudged felony," and the party so offending be punished as other felons for felonies committed, by the common law. 64 This statute extends only to such as were servants to the owner 1 Haw. c. 33. of the goods, both at the time of their delivery and when they $12. were stolen, and not at all to Apprentices bound by indenture 2 East's P. C. as such, or to servants under 18 years of age. The goods must have been delivered to the servant to keep for the master; and the words kept to the use of the master' imply, that they are to be returned to the master; as in the following case: 562. What goods within the statute. Watson's case, cor. Heath J. 2 East's P. C. 562. William Watson was tried on an indictment containing three counts; the first stating that the prisoner as a servant received Worcester Sp. 3. 18s, the money of E. C. his late master, which was delivered Ass. 1788. to him to keep safely to the use of his master; and that afterwards the said prisoner withdrew himself from his master with the money, with an intent to steal the same, and to defraud his said master thereof. The second count stated that the prisoner having received the said money in the manner above stated, and being with his master, had converted the same to his own use: and both concluded against the form of the statute. The third count was for larceny generally. It appeared that Cowper, who was a surrogate, had sent the prisoner, his servant, to buy some blank licences, and had delivered him the 3/. 18s. for that purpose; the prisoner ran away with the money. Being convicted, the question reserved was, whether the evidence supported any of the counts? And in Easter term, 1788, the Judges held that to keep means to keep for the use of the master and to return to him. The statute extends not to goods, the actual property of which 1 Haw. c. 33. were not in the master at the time: and therefore it is said that $ 15. if the property be changed, as by melting money down, or malt- 2 East's P. C. 565. |