ing the property

Of of individuals, the malicious mis

are, larceny,

chief, and for

of two kinds,

simple, and

compound.

(1) By statute 7 & 8 Geo. IV. c. 29, § 2, it is enacted, "That the distinction between grand and petty larceny shall be abolished, and every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the commencement of this act; and every court, whose power as to the trial of larceny, was before the commencement of this act limited to petty larceny, shall have power to try every case of larceny, the punishment of which cannot exceed the punishment hereinafter mentioned for simple larceny, and also to try all accessaries to such larceny."

By § 3, every person convicted of simple larceny, or of any felony thereby made punishable like simple larceny, shall (except in the cases thereinafter otherwise provided for) be liable to VOL. IV.

transportation for seven years, or imprisonment not exceeding two years; and, if a male, to one, two or three public whippings; and by § 4, where the sentence is imprisonment, the courts have a discretionary power to award hard labour or solitary confinement in addition. This observation has been introduced here that the reader may observe, how far the present provisions of the law vary from the text, in his progress through this important chapter, and to remind him that the subtle distinctions between grand and petty larceny are now entirely abolished.

By § 61, in every felony punishable under this act, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree; and every accessary after the fact, (except only a receiver of stolen property,)

without consent of the owner,

randi.

plotted so to do with his servant, desired his servant to carry on the business with a view to the detection of the thieves; in consequence of which the servant, with the consent of his master, agreed with the prisoners to open the outer door to them, and let them into the house, when they broke open inner apartments, and took the goods: held, by a majority of the judges, to be larceny, one (only) doubting, because of the owner's assent and partial encouragement of the felony by means of his servant; Rex v. Egginton, 2 Leach, 913; 2 B. & P. 508; S. P. Rex v. Dannelly, 2 Marsh, 571; 2 East, P.C. 494, 666. If a bag of wheat be delivered to a warehouseman for safe custody, and he take all the wheat out of the same, and dispose of it, it is larceny; Rex v. Brazier, R. & R. C. C. 337. Where there is a plan to cheat a man of his property under colour of a bet, and he parts with the possession only, to deposit as a stake with one of the confederates, the taking by such confederate will be felonious, id. 413. To make a taking felonious it is not necessary it should be done lucri causâ ; taking with an intent to destroy, will be sufficient to constitute the offence of larceny, if done to serve the prisoner or another person, though not in a pecuniary way. By six v. five judges; Rex v. Cabbage, id. 292; 2 Russell, 94. Where a banker's clerk took notes from the till, under colour of a check from a third person, which check he obtained by having entered a fictitious balance in the books in favour of that person held a felony, the obtaining the check fraudulently being nothing more than mere machinery to effect his purpose; Rexv. Hammon, R. & R. C. C. 221; S. C. 4; Taunt. 304. Fraudulently obtaining the mail bags by delivery from one in the post-office to the prisoner, is a taking and stealing out of

the post-office; Rex v. Pearce, 2 East, P. C. 663. If a person steal his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet if the bailee had an interest in the possession, and could have withheld it from the owner, the taking is a larceny. By seven judges v. four; Rer. v Wilkinson, R. & R. C. C. 470. So if a part owner of property steal it from the person in whose custody it is, and who is responsible for its safety, he is guilty of larceny. So, where a clerk embezzles a bill of exchange, which he received from his master with directions to enclose and transmit it in a letter by post to a correspondent; this has been held larceny; 2 East, P. C. 565; 2 Ch. C. L. 2d ed. 917, b. It is larceny for a person hired for the special purpose of driving sheep to a fair, to convert them to his own use, he having the intention to do so at the time of receiving them from the owner; 1 R. & M. C. C. 87. Where property, which the prosecutor had bought, was weighed out in the presence of his clerk, and delivered to his carman's servant to cart, who let other persons take away the cart, and dispose of the property, for his benefit jointly with that of the others, the carman's servant, as well as the others, were held guilty of larceny at common law; Rex. v. Harding, R. & R. C. C. 125. If a party finding property knows the owner; or if there be any mark upon it by which the owner can be ascertained, and instead of returning it, converts it to his own use, such a conversion is a felonious taking; Rex. v. James, 2 Russell, 102. Fraudulently obtaining a chest of tea from the India House, though by means of a regular request paper and permit, has been held a larceny; Rer v. Hough, R. & R. C. C. 163. But where a person obtained possession of a hat

from the maker, which had been order ed by a third person, by sending a boy for it in the name of such third person: held that this did not amount to larceny. The distinction between these two last cases, which on a first view seem to be undistinguishable, appears to be this. In the former, the goods were obtained with a felonious design, the owner still retaining his right of property in them; in the latter, although the offender obtained the hat under false pretences, or rather fraudulent circumstances, the owner parted with his property voluntarily. And

where the defendant obtains silver on pretence of sending a half-guinea presently in exchange, it is no felony; 2 East, P. C. 672. So writing a letter in the name of a third person to borrow money, which the writer obtains by that fraud, is only a misdemeanor; Id. 673. So if the owner parts with the possession of goods for a particular purpose, and the bailee when that purpose is executed, neglects to return them, and afterwards disposes of them, if he had not a felonious intention when he originally took them, his subsequent withholding and disposing of them, does not constitute a felonious taking, or make him guilty of felony; Rex v. Banks, R. & R. C. C. 441. So if the master of a foreign vessel captured by a British ship, and carried into port, takes goods from the vessel after she has been condemned as a prize, it does not amount to larceny, unless there is evidence that he took them for the purpose of converting them to his own private use; Rex v. Van Muyen, R. & R. C. C. 118. So the clandestinely taking away articles to induce the owner (a servant girl) to fetch them, and thereby to give the offender an opportunity to solicit her to commit fornication with him, is not felonious; Rex v. Dickinson, id. 420. The prisoner went

into a shop in London and purchased jewellery, saying that he would pay in cash, and the seller agreed to deliver the articles at the coach-office annexed to the inn where the prisoner stated he lodged. The seller made out an invoice, and took the goods as directed, when the prisoner said he had experienced a disappointment in not receiving money he expected by letter. At this moment a two-penny post letter was handed to him, which he opened in the presence of the vendor, and said he had a friend to meet at Tom's Coffeehouse at seven, who would supply the money. The goods were left, and the seller went home. The prisoner had taken a place by the mail, which he countermanded, and absconded with the goods. The vendor swore that he considered the goods sold if he got his cash, but not before. It was left to the jury to say whether the prisoner had any intention of buying and paying for the goods, or whether he gave the order merely to get possession of them, to convert them to his own use. The jury found the latter, and the prisoner was convicted, which conviction was held right by the twelve judges; Rex v. Campbell, Car. C. L. 280; 1 M. & P. 373. So if a person having ordered a tradesman to bring a parcel of goods to his house, look out a certain quantity, ask the price of them, separate them from the rest, and then, by sending the tradesman back on pretence of requiring other goods, take the opportunity of running away with the goods he had looked out, with intent to steal them, it is larceny, for as the sale was not completed, the possession of the property still remained in the tradesman; Rex v. Sharpless, 1 Leach, C. C. 92. Where two planned to rob a girl of some coats, and one got her to go with him that he might get some money to buy them of her, and she left the coats