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[common law, held not to be such goods whereof larceny might be committed; being of no intrinsic value, and not importing any property in possession of the person from whom they are taken (q). By the common law, also, larceny could not be committed of treasure trove, or wreck, till seized by the Crown or him who had the franchise; for till such seizure, no one hath a determinate property therein: nor could it be committed, at the common law, of such animals in which there is no property either absolute or qualified; as of beasts that are fere naturæ, and unreclaimed, such as deer, hares and conies in a forest, chase or warren; fish in an open river or pond; or wild fowls at their natural liberty (r). But if such animals are reclaimed or confined, and may serve for food, it is otherwise; for of deer so inclosed in a park that they may be taken at pleasure, of fish in a trunk, and of pheasants or partridges in a mew, larceny, at common law, may be committed (s). It is also said that if swans be lawfully marked, it is felony at common law to steal them, though at large in a public river; and that it is likewise felony to steal them, though unmarked, if in any private river or pond; otherwise it is only a trespass (t). But of all valuable domestic animals, as horses and other beasts of draught; and of all animals domitæ naturæ, which serve for food, as cattle, swine, poultry and the like; and of their fruit or produce taken from them while living, as milk or wool (u),-larceny may be committed at common law; as it may also of the flesh of such as are either domitæ or feræ naturæ, when killed (x). While, on the other hand, as to those animals which do not serve for food, and which therefore the law holds to
(g) 8 Rep. 33 b. See Reg. v. Watts, 1 Dearsley's C. C. R. 326.
(r) 1 Hale, P. C. 511; Fost. 366. (8) Hawk, P. C. b. 1, c. 33, s. 25; Hale, ubi sup. As to pigeons, see Queen v. Cheafor, 21 L. J. (M. C.) 43.
(t) Dalt. Just. c. 158.
(u) Dalt. 21; Crompt. 36; Hawk. P. C. b. 1, c. 33, s. 28; Hale, ubi sup.; The King v. Martin, (by all the judges,) P. 17 Geo. 3.
(a) Hale, ubi sup.
[have no intrinsic value,-as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a bare property therein, and maintain a civil action for the loss of them (y); yet they are not of such estimation as that the crime of stealing them amounts to the common law offence of larceny (z).
Lastly, the carrying away must be with intent to deprive the right owner of that which is taken; or, as it is frequently expressed, the carrying away must be animo furandi (a). This requisite, besides excusing those who labour under incapacities of mind or will, of whom we spoke sufficiently at the entrance of this Book, indemnifies also mere trespassers and other petty offenders (b). As if a servant takes his master's horse without his knowledge, and brings him home again,-if a neighbour takes another's plough that is left in the field, and uses it upon his own land, and then returns it,-if, under colour of being owner of rent where none is due, I distrain another's cattle or seize them, all these are trespasses, but no felonies (c). The ordinary discovery of a felonious intent, is where the party doth it clandestinely; or being charged with the fact, denies it. But this is by no means the only criterion of criminality; for in cases that may amount to larceny, the variety of circumstances is so great, and the complication thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent or animus furandi; wherefore they must be left to the due and attentive con
(y) 1 Hale, P. C. 512.
(z) Hale, ubi sup. It must be borne in mind, that the above observations relate only to the doctrines as to larceny, which prevailed at common law. But by modern statutes, the stealing of many things which were at common law not the subject of larceny, is now made highly penal, as is further explained post, p. 122.
(a) We may here notice a statute (31 & 32 Vict. c. 116), by which one of two or more beneficial owners of property or members of a partnership who shall steal or embezzle any joint property, may be tried and punished, as if he was not one of such beneficial owners or member of the copartnership.
(b) Vide sup. p. 21.
[sideration of the court and jury (d).] It may be here observed, that it was formerly held to be larceny for a servant, contrary to orders, to take his master's corn or other food even for the purpose of feeding the horses or other animals of such master, though in such cases it might have been difficult to establish any animus furandi. But by 26 & 27 Vict. c. 103, this species of misconduct has been expressly removed from the rank of a felony, and has been made punishable by way of pecuniary penalty after summary conviction.
[The crime of larceny may be committed as to a thing whereof the owner is unknown, provided it appear that there is an owner other than the taker (e). In like manner, as, among the Romans, the lex Hostilia de furtis provided that an action for theft might, in certain cases, be carried on without the intervention of the owner (ƒ). An example of this may occur in the case of stealing a shroud out of a grave; which is the property of those, whoever they were, that buried the deceased: but stealing the corpse itself, though a matter of great indecency, and, if the corpse be disinterred for the purpose, an indictable misdemeanor (g), is said to be no felony, unless some of the grave-clothes be stolen with it (h).
Having thus considered the general nature of larceny, we now arrive at its punishment. Theft, by the Jewish law, was only punished with a pecuniary fine and satisfaction to the party injured (i). The laws of Draco, at
(d) As to the application of the doctrines referred to in the text, to a fraudulent sale to the owner of his own property, see R. v. Hall, 1 Den. C. C. 381; Manning's case, 1 Dears. C. C. R. 21; and as to property larcinously appropriated by the finder thereof, see R. v. Christopher, 28 L. J. (M. C.) 35.
(e) See 1 Hale, P. C. 512; 2 Hale, P. C. 290.
(ƒ) Gravin. 1. 8, c. 106.
(g) Vide post, c. XII.
(h) 4 Bl. Com. 235. Blackstone adds, that by the law of the Franks, a person who dug a corpse up, in order to strip it, was to be banished from society; and no one suffered to relieve his wants till the relatives of the deceased consented to his readmission; and he cites Montesq. Sp. L. b. 30, c. 29.
(i) Exod. xxii.
[Athens, punished it with death: but his laws were said to be written in blood; and Solon afterwards changed the penalty to a pecuniary mulct. The civil law only obliged the fur or common thief to restore the thing stolen and pay in addition a fine to the owner, though in some very late constitutions we find the punishment capital. In this country, our antient Saxon laws nominally punished theft with death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom; as, amongst their ancestors the Germans, by a stated number of cattle (k).] But in the ninth year of Henry the first, this power of redemption was taken away; and all persons guilty of larceny, above the value of twelve pence, were directed to be hung (1). So that stealing to above this value, (which was called grand larceny,) became then a capital felony and continued such down to our own times, wherever (as was very frequently the case) the benefit of clergy was taken away by some express statute from the particular species of theft of which an offender was convicted; though if not so taken away, then, by the law relating to benefit of clergy, as latterly modified, the pains of death were in fact excused, provided it were the first of fence (m). On the other hand, petty larceny, that is, theft under the value of twelve pence, was never capital, but a
(k) Tac. de Mor. Germ. c. 12. (1) This sum (says Blackstone, vol. iv. p. 237) was the standard in the time of King Athelstan; and he observes that afterwards, in the reign of King Henry the first, one shilling was the stated value, at the Exchequer, of a pasture fed ox (Dial. de Scacc. 1. 1, s. 7); and that if we should suppose this shilling to mean that solidus legalis mentioned by Lyndewoode (Prov. 1. 3, c. 13), or the 72nd part of a pound of gold, it
would be equal to 13s. 4d. of the present standard. It may be observed that the progressive reduction in the value of money, while death continued to be the sentence for theft to the same amount as before, justified the complaint of Sir H. Spelman (Gloss. 350), that while everything else living became dearer, the life of man had continually grown cheaper.
(m) Vide post, c. XXIII.
felony punished with imprisonment or whipping only (p). There is now, however, no distinction recognized by the law, between grand and petty larceny, though that between simple and aggravated larceny still remains. And by the provisions now in force the punishment for simple larceny, or of any felony made punishable like simple larceny, is (as the general rule) penal servitude for five years (7), or imprisonment not exceeding two years, with or without hard labour, solitary confinement, and (in the case of a male under sixteen years) whipping (r); but in case of a conviction after having been twice "summarily convicted" of any of the offences so punishable under certain Acts (s),—or after a conviction for an indictable misdemeanor, punishable under 24 & 25 Vict. c. 96 (t),— the term of penal servitude may extend to seven years (u); and in case of a conviction after a previous conviction for felony (either on indictment or by way of summary conviction), may be as long as ten years (x). In certain cases, moreover, where the larceny relates to a subject for which the policy of the law provides with more anxiety, the punishment may be even more severe. For if any person shall steal, (to the value of ten shillings,) any woollen, linen, hempen or cotton yarn, or any goods or article of silk, woollen, linen, cotton, alpaca or mohair; or any one or more of those materials mixed with each other, or mixed with any other material;—whilst laid, placed, or exposed, during any stage, process or progress of manufacture, in any building, field or other place,—
(p) 3 Inst. 218; Hawk. b. 1, c. 33, s. 36; 4 Bl. Com. 237.
(1) See 27 & 28 Vict. c. 47. (r) 24 & 25 Vict. c. 96, s. 4. But in certain cases, the offence of simple larceny may be summarily disposed of before justices at petty sessions, (or before a metropolitan or stipendiary magistrate.) Vide
post, chapter on Summary Convictions.
(s) These are 7 & 8 Geo. 4, cc. 29, 30; 10 & 11 Vict. c. 82; 24 & 25 Vict. c. 97.
(t) 24 & 25 Vict. c. 96, s. 8.
(*) Sect. 9.
(a) Sect. 7.