screwed to pipes which were fastened to the building they were not capable of being stolen.20

§ 540. Choses in action.-A chose in action, strictly speaking, is an incorporeal right, which can not, of course, be the subject of larceny. At common law the written instrument, which is evidence of the chose in action, is also incapable of being the subject of larceny. This is owing to the fact that its character as paper is regarded as merged in its character as a chose in action.21 It is otherwise, however, where the instrument is void. Where the accused was charged with stealing a check, which was described in one of the counts of the indictment as a piece of paper, and the proof showed that the check was void, a conviction of larceny of the paper was affirmed.22 It is to be observed that where the instrument has a potentiality of being rendered available, it is not the subject of larceny, even as a mere piece of paper. Thus, where the accused was charged with the larceny of a piece of paper, which consisted of an unstamped agreement for the building of two cottages, which agreement was not available as such, because it was not stamped as provided by statute, the conviction was reversed because the writing had a potentiality of being rendered available as a valid contract and was admissible in evidence to prove a right. "There is a very clear distinction between instruments, which without a stamp are wholly void, and those which may be rendered available at any moment, by having a stamp impressed upon them. There are many cases in which an unstamped agreement is considered evidence of a right.. *** I agree that we must look at the state of the instrument at the time of

20 Langston v. State, 96 Ala. 44, 11 So. 334.

21 Bl. Comm. 234; Culp v. State, 1 Port. (Ala.) 33, 26 Am. Dec. 357; United States v. Davis, Fed. Cas. No. 14930, 5 Mason (U. S.) 356; People v. Griffin, 38 How. Pr. (N.

Y.) 475, Derby's Cases 371, holding that under the New York statute stock certificates are subject of larceny.

22 Reg. v. Perry, 1 Car. & K. 725, 1 Cox Cr. C. 222.

the larceny committed; but it then had a potentiality of being rendered available, and it was evidence of an agreement; it was therefore evidence of a chose in action, and not the subject of larceny."23 Railroad tickets, though not stamped or delivered to a passenger, have been held the subject of larceny.24

§ 541. Manure.-Manure which is piled in a heap for subsequent disposal is personal property and therefore capable of being stolen; but manure which has been spread upon the land is real estate and therefore incapable of being stolen.25

§ 542. Gas, water, etc.—Illuminating gas28 and water27 supplied in pipes to consumers are personal property and capable of being stolen. Electricity, however, is not, at common law, but in some states it is made the subject of larceny by statute.

§ 543. Gambling devices-Liquor illegally kept for sale. -The fact that intoxicating liquor is illegally kept for sale does not render it incapable of being stolen.28 But whether devices used for gambling are the subject of larceny or not is a question upon which the decisions are in conflict.20

§ 544. Abandoned property.-Property which has been wholly abandoned by the owner is not the subject of larceny.30 But pigs, which had been bitten by a mad dog and shot and buried on the owner's land, were held not aban

23 Lord Campbell in Reg. v. Watts, 6 Cox Cr. C. 304.

24 State v. Wilson, 63 Ore. 344, 127 Pac. 980, Ann. Cas. 1914 D, 646. 25 Carver v. Pierce, K. B. 1648. Style 66.

26 Reg. v. White, 6 Cox Cr. C. 213; Woods v. People, 222 I11. 293, 78 N. E. 607, 113 Am. St. 415, 7 L. R. A. (N. S.) 520n; Commonwealth v. Shaw, 4 Allen (Mass.) 308, 81 Am. Dec. 706, Derby's Cases 373.

27 Ferens v. O'Brien, 15 Cox Cr. C. 332, L. R. 11 Q. B. Div. 21.

28 State v. May, 20 Iowa 305; Commonwealth v. Coffee, 9 Gray (Mass.) 139.

29 Bales v. State, 3 W. Va. 685 (yes); State v. Wilmore, 9 Ohio Dec. (Reprint) 61 (no).

30 People v. Hoban, 240 I11. 303, 88 N. E. 806, 22 L. R. A. (N. S.) 1132, 16 Ann. Cas. 226.

doned property, and the defendants who had dug them up and sold them, animo furandi, were held guilty of larceny.31

§ 545. Body of dead person, grave clothes, etc.—The body of a dead person is not the subject of larceny at common law but the coffin containing the body, and the grave clothes, are.32 The clothes on the body of a dead person who has been drowned and driven ashore from a wreck are likewise the subject of larceny.33

§ 546. Value of the property.-To be the subject of larceny, the thing taken must be of some value.34 The slightest value, however, is sufficient. Even a piece of paper can be the subject of larceny.35 But, as heretofore stated, a paper which constitutes evidence of a chose in action can not be the subject of larceny because the paper becomes evidence of a right, and ceases to have any existence as anything else.36 The same principle is applicable to title deeds, for they are evidence of title to lands.37

Dead infected animals which have been buried still retain sufficient value to be the subject of larceny.38

§ 547. Mode.of taking-Trespass.-One of the essentials of larceny at common law is that the taking must be by trespass. It must be done under such circumstances that the taker would be liable in an action for damages for trespass to goods.39 To constitute trespass the taking must be unlawful and without the owner's consent. Ownership, however, may

31 Reg. v. Edwards, 13 Cox Cr. C. 384.

32 State v. Doepke, 68 Mo. 208, 30 Am. Rep. 785.

33 Wonson v. Sayward, 13 Pick. (Mass.) 402, 23 Am. Dec. 691.

34 Hope V. Commonwealth, 9 Metc. (Mass.) 134; People v. Wiley, 3 Hill (N. Y.) 194; Gates v. State, 20 Ga. App. 171, 92 S. E. 974.

35 Reg. v. Perry, 1 Car. & K. 725,

1 Cox Cr. C. 222.

36 Reg. v. Watts, 6 Cox Cr. C. 304.

37 Reg. v. Watts, 6 Cox Cr. C. 304.

38 Reg. v. Edwards, 13 Cox Cr. C. 384.

39 Reg. v. Smith, 2 Den. Cr. C. 449; State v. Casey, 207 Mo. 1, 105 S. W. 645, 123 Am. St. 367, 13 Ann.

be special as well as general. Moreover, the general owner can commit larceny by feloniously taking the property from the possession of the special owner. Thus, a pledgee has a special property in the thing pledged; and if the pledgor, who has a general property in it, takes it from him without his consent, and with the fraudulent design of depriving him of his security, he commits larceny. Furthermore, even where the pledgee consents to the taking for a particular purpose the pledgor is guilty of larceny, if the taking is with the fraudulent design of depriving the pledgee of his security.40

§ 548. Possession versus custody.-Possession may be either actual or constructive. Where goods are in the bare charge or custody of a mere servant the constructive possession of them is in the master. In such case the servant has no special property in them, and for this reason if he fraudulently converts them to his own use he is guilty of trespass and larceny. So a servant who had charge of his master's mule and took it from the plow while in his custody, was nevertheless guilty of larceny.41 The custody of a servant is distinguishable from the possession of a bailee by reason of the fact that the bailee is under a special contract with respect to the goods which gives him a special property in them; whereas a mere servant has no such special property. Hence a bailee who converts them to his own use does not commit a trespass, and therefore is not guilty of larceny, unless at the time he receives them he has a felonious intent

Cas. 878; People v. Csontos, 275 Ill. 402, 114 N. E, 123; People v. Brenneauer, 166 N. Y. S. 801, 101 Misc. 156.

40 Bruley v. Rose, 57 Iowa 651, 11 N. W. 629. See also Vaught v. State, 135 Wis. 6, 114 N. W. 518, 646, 32 L. R. A. (N. S.) 234, 128 Am. St. 1008.

41 Crocheron v. State, 86 Ala. 64, 5 So. 649, 11 Am. St. 18, Derby's Cases 441; People v. Brenneauer, 166 N. Y. S. 801, 101 Misc. 156; Hatcher v. State (Fla.), 76 So. 694; King v. State (Ala. App.), 72 So. 552.

to wrongfully convert them.42 But if such intent exists at the time he receives the goods his possession is unlawful and he is guilty of trespass, and a subsequent conversion of them to his own use is larceny. So, one who hires a horse from a livery stable with an intent at the time to steal it, is guilty of larceny.* 43

And where a bailee of goods breaks the package in which they are contained and takes out some of the articles, animo furandi, he has terminated the bailment, and may be convicted of larceny.14

On the other hand, where the owner of a horse gave the defendant permission to ride it to a certain place, with instructions to turn it loose there, and while on the way the defendant exchanged the horse for an overcoat, and the proof did not show that possession of the horse was obtained by any false pretext, or with intent to deprive the owner of his property, the court held that he was guilty of larceny.45 And where a bailee of clothes to be repaired took money from the pockets, a conviction of larceny was sustained. 46

Also a conviction may be had for taking a box of matches placed on a store counter for the use of customers or the public.47

Where a third party hands money or other personal property to a servant with instructions to take it to his master,

42 Watson v. State, 70 Ala. 13, 45 Am. Rep. 70; Reg. v. Thristle, 3 Cox Cr. C. 573, Derby's Cases 399; People v. Cruger, 102 N. Y. 510, 7 N. E. 555, 55 Am. Rep. 830, Derby's Cases 402; Johnson v. People, 113 Ill. 99, Derby's Cases 410; 2 Whart. Crim. L. (11th ed.), §§ 1177, 1178. But see State v. Levine, 79 Conn. 714, 66 Atl. 529, 10 L. R. A. (N. S.) 286.

43 People v. Smith, 23 Cal. 280; Hill v. State, 57 Wis. 377, 15 N. W. 445, Derby's Cases 405.

44 State v. Fairdough, 29 Conn. 47, 76 Am. Dec. 590, Derby's Cases 451.

45 Stokely v. State, 24 Tex. App. 509, 6 S. W. 538. See also State v. Coombs, 55 Maine 577, 92 Am. Dec. 610, Derby's Cases 407; State v. Ruffin, 164 N. Car. 416, 79 S. E. 417, 47 L. R. A. (N. S.) 852; and note to 43 L. R. A. (N. S.) 1179.

46 Rose v. State, 52 Tex. Cr. 154, 106 S. W. 143, Derby's Cases 404.

47 Mitchum v. State, 45 Ala. 29, Derby's Cases 414.