TITLE VI. OFFENCES AGAINST RIGHTS OF PROPERTY AND RIGHTS Upon the subject of this Title the Royal Commissioners, in their report upon the English Draft Code, have the following special remarks: "Offences against rights of property must be committed, either, by wrongfully taking property, by fraudulently deceiving the owners of property, or, by the mischievous destruction of property; in other words, by THEFT, by CHEATING, or, by MISCHIEF. "Theft may be either simple or aggravated. Simple theft is so closely connected with certain kinds of fraud that the two subjects run into each other. Theft aggravated by violence is either robbery or extortion; and theft accompanied by wilful trespass on a dwellinghouse is either burglary or house-breaking. "The receiving of goods dishonestly obtained is usually associated with theft. "Mischief is a distinct subject, and follows fraud. "The present title includes and re-enacts, in substance, the provisions of the Larceny Act, the Forgery Act, the Coinage Offences Act, and the Malicious Mischief Act, (24-25 Vict., cc. 96, 97, 98, 99). (1) It also includes some provisions, less comprehensive, which occur in other Acts,-in particular the provisions of two sections of the Post Office Act, (7 Will. 4 & 1 Vict., c. 36, ss. 28, 47), (2) part of the Trade Marks Act, (25-26 Vict., c. 88), (3) the Personation Act. (37-38 Vict.,, c. 36), (4) and the provisions of the Fraudulent Debtors' Acts for England and Ireland, (32-33 Vict., c. 62, and 35-36 Vict., c. 57). (5) "The changes made by the present title relate, principally, to the common law, as to theft, The present statute law is substantially contained in the 24-25 Vict., c. 96: which recognizes and continues the old, (and, as it seems to us unreasonable), distinctions between stealing animals ferae naturae, or things attached to or savoring of the realty, (which were not at common law the subject of larceny,) and stealing other property. (1) The corresponding Canadian Acts are R.S.C., c. 164; c. 165; c. 167; and c. 168. (2) R.S.C., c. 35, ss. 79, 80, 81, 83, 88, 90. (3) 51 Vict., c. 41, ss. 2, 5, 19, 20, 21, 22. (Dom.) (4) R.S.C., 165, ss. 9, 41. (5) R.S.C. 173, ss. 27, 28. OFFENCES AGAINST RIGHTS OF PROPERTY, ETC. 267 "There is good reason for holding that capturing wild animals in the enjoyment of their natural liberty, though on another's land, should not be considered stealing; but, why should stealing one of the deer or valuable foreign birds in the Zoological Gardens be treated differently from stealing a sheep or a hen? And, why should it be a different offence to steal a log of timber from that which it is to cut down the tree and carry it away? "Again, the old law as to stealing required that the property should be taken out of the possession of the owner. This rule gave rise to many complicated and highly artificial decisions; and some statutes have included, amongst thieves, bailees, servants and others who, having lawfully obtained possession of property, were not within the old definition, though they fraudulently appropriated to their own use the property entrusted to them; but many persons equally culpable are still beyond the reach of the criminal law; so that a person, who finds a purse and appropriates it, under circumstances involving all the moral guilt of theft, may, on technical grounds, escape all criminal liability. "It is proposed to simplify the law by putting an end to all these distinctions, which are very subtle, and, many of them, arbitrary. С. The things which, according to the common use of the word steal, are capable of being stolen, but which, at common law, are not the subjects of larceny, may be described as, first, certain animals; secondly, documents evidencing certain rights; and thirdly, land and things fixed to or growing out of it. "As to animals, one rule of the existing law is founded on the principle that to steal animals used for food or labor is a crime worthy of death, but that to steal animals kept for pleasure or curiosity is only a civil wrong. The principle has long since been abandoned; sheep stealing being no longer a capital offence; and dog stealing is a statutory offence. But the distinction [above referred to] still gives its form to the law, and occasionally produces results of a very undesirable kind. It was held, lately, for instance, that as a dog is not the subject of larceny, at common law, it was not a crime to obtain, by false pretences, two valuable pointers. (1) "It seems, to us, that this rule is quite unreasonable, and that all animals, which are the subject of property should also be the subject of larceny. "This, however, suggests the question, what wild animals are the subject of property, and how long do they continue to be so? "This question must be considered in reference to living animals, fere naturæ, in the enjoyment of their natural liberty; living animals, feræ naturæ, escaped from captivity; and pigeons, which, singularly enough, form a class by themselves. "The existing law, upon this subject, is that a living wild animal, in the enjoyment of its natural liberty, is not the subject of property; (1) R. v. Robinson, Bell 34. but that, when dead, it becomes the property of the person on whose land it dies. in such a sense that he is entitled to take it from a trespasser, but not in such a sense that the person who took it away, on killing it, is guilty of theft. This is specially important in reference to game. This state of the law we do not propose to alter. "As to living animals, feræ naturæ, in captivity, we think they ought to be capable of being stolen. When such an animal escapes from captivity, it appears to us that there arises a distinction which deserves recognition. If the animal is one which is commonly found in a wild state in this country, it seems reasonable that on its escape it should cease to be property. A person seeing such an animal in a field may have no reasonable grounds for apposing that it had just escaped from captivity. If, however, a man were to fall in with an animal imported at great expense, as a curiosity, from the interior of Africa he could hardly fail to know that it had escaped from some person to whom it would probably have a con siderable money value. We think that not only a wild animal in actual captivity, but also a wild animal,-which has once been captured, should, on escaping from confinement, be the subject of larceny, unless it be an animal commonly found, in a wild state, in this country. "Pigeons, while in a dovecot, or farmyard, ought obviously to be as much capable of being stolen as poultry. But, suppose they are away from their home, and are not distinguishable from wild pigeons? The law upon this point is not quite clear. It appears, from section 23 of 24 & 25 Vict. c. 96, that a bird so situated is not the subject of larceny, as that Act imposes a penalty of forty shillings on persons killing pigeons under such circumstances as shall not amount to larceny at common law;' and no other circumstances can be imagined to which these words would apply. These distinctions will be found to be embodied in section 245. (1) " "The rules that documents evidencing certain rights, and that land and things savoring of the realty are not capable of being stolen appear to us wholly indefensible. "It is no doubt physically impossible to steal a legal right or to carry away a field, but this affords no ground at all for the rule that it shall be legally impossible to commit theft upon documents which afford evidence of legal rights, or upon things which, though fastened to, growing out of, or forming part of the soil, are capable of being detached from it and carried away. "These rules have been qualified by statutory exceptions so wide and intricate that they are practically abolished, but they still give form to a considerable part of the law of theft, and occasionally produce failure of justice in cases in which the statutory exception is not quite co-extensive with the common law rule. These rules we propose to abolish absolutely." (1) See article 304, post, which contains the same distinctions and provisions. PART XXIV. THEFT. 303. Things capable of being stolen.-Every inanimate thing whatever which is the property of any person, and which either is or may be made movable, shall henceforth be capable of being stolen. as soon as it becomes movable, although it is made movable in order to steal it Provided, that nothing growing out of the earth of a value not exceeding twenty-five cents shall (except in the cases hereinafter (1) provided) be deemed capable of being stolen. This article is identical with section 244 of the English Draft Code. Opposite to the above proviso the Royal Commissioners have a marginal note, as follows: "The existing law is shortly this; At common law nothing which grows out of or is fixed to the earth is the subject of larceny. But by 24-25 Vict., c. 96, s. 33, punishments are provided for stealing trees, saplings and shrubs, of the value of more than one shilling; by section 36, all plants whatever growing in gardens, etc., are protected and, by section 37, (2) all plants cultivated for any of the purposes specified in the text of the section, wherever they may grow, are protected. These provisions appear substantially to make all vegetable productions the subject of larceny, except things worth less than one shilling growing elsewhere than in gardens, and not cultivated for the purposes mentioned. 304. Animals capable of being stolen.-All tame living creatures, whether tame by nature or wild by nature and tamed, shall be capable of being stolen; but tame pigeons shall be capable of being stolen so long only as they are in a dovecote or on their owner's land. 2. All living creatures wild by nature, such as are not commonly found in a condition of natural liberty in Canada, shall, if kept in a state of confinement, be capable of being stolen, not only while they are so confined but after they have escaped from confinement. 3. All other living creatures wild by nature shall, if kept in a state of confinement, be capable of being stolen so long as they remain in confinement or are being actually pursued after escaping therefrom but no longer. 4. A wild living creature shall be deemed to be in a state of confinement so long as it is in a den, cage or small enclosure, stye or tank, or is otherwise so situated that it cannot escape and that its owner can take possession of it at pleasure. 5. Oysters and oyster brood shall be capable of being stolen when in oyster beds, layings, and fisheries which are the property of any person, and sufficiently marked out or known as such property. (1) See articles 341 and 342, post. (2) These sections 33, 36 and 37 of the Imperial Statute, 24-25 Vict, c. 96, correspond with sections 19, 23, and 24 of R.S.C., c.164, (now repealed). 6. Wild creatures in the enjoyment of their natural liberty shall not be capable of being stolen, nor shall the taking of their dead bodies by, or by the orders of, the person who killed them before they are reduced into actual possession by the owner of the land on which they died, be deemed to be theft. 7. Every thing produced by or forming part of any living creature capable of being stolen, shall be capable of being stolen. This article is to the same effect as section 245 of the English Draft Code. Opposite to the clause corresponding with sub-section 4, the Royal Commissioners, have the following note: "This is intentionally worded so as not to include deer in a large park." Larceny at common law.-The word "Larceny " is derived from "larcyn" (Norm. Fr.) and "latrocinium" (Lat.); and simple larceny, that is, larceny at common law, or, as Blackstone (1) calls it, "plain theft, unaccompanied with any other atrocious circumstance, "is generally defined as the wrongful taking and carrying away of the personal property of another, with a felonious intent to convert it to the taker's own use, without the consent of the owner. (2) "It is essential to larceny at common law that there should be a felonious taking; which has been understood to mean a taking out of the possession of the owner. This rule has given rise to vast technicality. "First, there is the question, what is the precise meaning of the word taking or carrying away, considered as a physical operation; and there are many cases, on this point, which run into very minute distinctions. On the whole it is thought desirable to require that, in order to constitute theft by taking, there should be at least an actual moving of the thing stolen. The existing law on that point is accordingly unaltered by the Draft Code. This is a matter of small importance as such questions arise very rarely. "Technicalities of more importance connected with taking are those which have led to the distinction between theft and embezzlement. "The immediate consequence of the doctrine that a wrongful taking is of the essence of theft, is, that, if a person obtains possession of a thing innocently, and afterwards fraudulently misappropriates it, he is guilty of no offence. "This doctrine has been qualified by a number of statutory exceptions, each of which has been attended with difficulties of its own. "The first of these exceptions is contained in the statute which provides that a clerk or servant, or person employed in the capacity of a clerk or servant, who embezzles property received on behalf of his master shall be deemed to have stolen it. This enactment was (1) 4 Bl. Com. 229. (2) See Hamman's case, 2 Leach C. C. 1089; Reg. v. Thurborn, 1 Den. C. C. 388; Reg. v. Middleton, L. R. 2 C. C. 48, 60, 66; Reg. v. McGrath, L. R. 1 C. C. 205, 210; Reg. v. Jones, 2 C. & K. 236. |