but this distinction has been abolished by the 7 & 8 G. 4. c. 29. s. 2. To constitute the offence of larceny, the following circumstances must combine: 1. There must be a taking of the goods either actual or constructive; actual, when the goods have been in fact taken out of the owner's possession, against his will, or without his consent; constructive, when the owner delivers the goods, but either does not thereby divest himself of the legal possession, or the possession of the goods has been obtained from him by fraud, and in pursuance of a previous intent to steal them. But whenever the property in the goods is parted with, as well as the possession, no fraud in the procuring of that possession and property will make the taking a larceny. 2. There must not only be a taking, but a carrying away. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation or carrying away. 3. The taking and carrying away must also be felonious, that is done animo furandi; or, as the civil law SENTENCES. vant take his master's horse, without his knowledge, and bring him home again; if a man take his neighbour's plough that is left in a field, and use it upon his own land, and then return it; these, according to Hale, may be trespasses, but are not felonies, because the returning the thing taken sufficiently evinces that the party, when he took it, had no intention to deprive the owner of it, or to convert it to his own use. Returning the goods, however, can be consistent merely as evidence of the defendant's intention when he took them; for if it appear that he took them originally with the intent of depriving the owner of them, and of appropriating them to his own use, his afterwards returning them will not purge the offence. 1 Hawk. c. 34. s. 2. 4. This felonious taking and carrying away must be of the personal goods of another; for if they are things real, or savour of the realty, larceny at the common law cannot be committed of them also bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larceny might be committed, being of no intrinsic SENTENCES. value, and not importing any property in possession of the person from whom they were taken: but the strictness of these rules has been relaxed, as we shall see below, in a number of instances, by act of parliament. Larceny cannot be committed of animals in which there is no property, either absolute or qualified; as of beasts that are feræ naturæ, and unreclaimed, such as deer, hares, and conies, in a forest, chase, or warren: fish in an open river, or pond; or wild fowl, at their natural liberty. But if they are reclaimed or confined, and may serve for food, it is otherwise; for of deer so enclosed in a park that they may be taken at pleasure, fish in a tank or net, and pheasants or partridges in a mew, larceny may be committed: so all valuable domestic animals, as horses, and all animals domitæ naturæ, which serve for food, as swine, sheep, poultry, and the like, and the product of any of them, as eggs, milk from the cow while at pasture, wool pulled from the sheep's back feloniously; and the flesh of such as are feræ naturæ may be the subject of larceny. But as to all other animals, which do not serve for food, such as dogs, ferrets, though tame and saleable, SENTENCES. and other creatures kept for whim and pleasure, stealing these does not amount to larceny at common law; 1 Hale 511, et seq. In all this, however, the statute law has made considerable alterations, as we shall presently see. SIMPLE LARCENY.-By the recent statutes the punishment for simple larceny is as in the adjoining column. SENTENCES. for Transportation seven years, or imprisonment for any term not exceeding two years, with or without hard labour, for the whole or any part of the imprisonment; and with or without solitary confinement, such confinement not exceeding one month at any one time, nor three months in any one year; and, if a male, to be once, twice, or thrice publicly or privately whipped, in addition to the imprisonment, if the Court shall think fit. 7 & 8 G. 4. c. 29. ss. 3, 4.; 7 W. 4. & 1 V. c. 90. s. 5. The following offences made felonies by statute have the same punishment attached to them as to simple larceny. Stealing, or severing with intent to steal, ore, &c. from a mine; 7 & 8 G. 4. preceding. c. 29. s. 37.: stealing or cutting, &c., Same sentence as the with intent to steal the whole, or any part of any tree, &c. growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house, the value above 17.: and stealing or cutting, &c., with intent to steal the whole, or part of any tree, &c., growing elsewhere, value above 5l.; 7 & 8 G. 4. c. 29. s. 38. Stealing, or cutting, &c., with intent to steal the whole, or any part of any tree, &c., wheresoever growing, value 18. at least, after two previous convictions; 7 & 8 G. 4. c. 29. s. 39. Stealing or destroying, or damaging with intent to steal, any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery-ground, hot-house, green-house, or conservatory, after a previous conviction; 7 & 8 G. 4. c. 29. s. 42. Stealing, or cutting, with intent to steal, any glass, or wood-work, belonging to any building; or any bariron, or other metal; or any utensil or fixture, whether made of metal or other material, fixed to any building; or any thing made of metal fixed in any land, being private property, or for any fence to any dwelling-house, garden, area, or in any square, street, or other place dedicated to public use, or or SENTENCES. |