§ 165. "Might Apparently be of Some Legal Efficacy," 526. UTTERING FORGED INSTRUMENTS.

§ 121. Classification. Of the crimes against property we will consider the following: 1, common law larceny; 2, robbery; 3, larceny from the person; 4, larceny from the house; 5, receiving stolen goods; 6, embezzlement; 7, cheating at common law; 8, forgery and uttering forged instruments; 9, obtaining property by false tokens; 10, obtaining property by false pretenses; 11, malicious mischief.

LARCENY.

§ 122. Larceny Defined. Common law larceny is the taking by trespass or fraud, without consent, and carrying away another's valuable personal property, without excuse or claim of right, intending to deprive the owner of it permanently, and convert it to the taker's own use.

§ 123. "Common Law Larceny."

Bracton and Fleta describe larceny as "Contractatio rei alienæ fraudulenta, cum animo furandi, invito illo domino, cujus res illa fuerat." Bracton, lib. iii. c. 32, fol. 150; Fleta, lib. i. c. 36; Glanville (lib. vii. c. 17; lib. x. c. 15) follows Bracton.

Lord Coke defines larceny to be "the felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another, neither from the person nor by night in the house of the owner." 3 Inst. 107.

East's Definition is, "The wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another

from any place, with a felonious intent to convert them to his (the taker's) own use and make them his own property, without the consent of the owner." 2 East P. C. 553.

§ 124. "Taking."

(Eng., 1598.) A Had Keys Tied to the Strings of His Purse; B, a cut-purse, took the purse out of A's pocket, but the keys tied to the purse stuck in the pocket, and A took B with the purse in his hand, and the strings tied to the keys still in A's pocket. It was ruled that this was no felony, for A still had possession of his purse in law; so that licet cepit non asportavit. Wilkinson's Case, 1 Hale P. C. 508, 2 East P. C. 556.

(Eng. C. C. R., 1825.) Taking From Pocket. Indictment for stealing from the person. Prosecutor testified: "I was at a fair; I felt a pressure of two persons, one on each side of me; I had secured by book in the inside front pocket of my coat; I felt a hand between my coat and waistcoat; I could feel the motion of the knuckles; I was satisfied the prisoner was trying to get my book out; the other person had hold of my right arm, and I forced it from him, and thrust it down to my book, in doing which I just brushed the prisoner's hand and arm; the book was just lifted out of my pocket; it returned into my pocket; it was out, how far I cannot tell; I saw a slight glance of a man's hand down from my breast; I secured the prisoner after a severe struggle, and a desperate attempt at escape, in which he was assisted by twenty or thirty persons; the coat was open; the pocket not over a quarter of an inch deeper than the book; I am satisfied the book was drawn from my pocket; it was an inch above the top of the pocket." The jury found the prisoner guilty, but the judge respited execution to take the opinion of the judges. After argument, Abbott, L. C. J., Park, Bailey, Holroyd, Burrough, and Littledale, JJ., thought that the prisoner was not rightly convicted of stealing from the person, because from first to last the book remained about the person of the prosecutor. Gaselee, J., and Graham, Garrow, and Hullock, BB., were of the contrary opinion. But the judges were unanimous that the simple larceny was complete; and sentence of transportation for life having been passed, a pardon was recommended on condition of transportation for seven years. R. v. Thompson, 1 Moody 78, 5 L. 580, Ke. 221, Mi. 674.

Such facts were held to show larceny from the person in Flynn v. S., 42 Tex. 301.

(Ala. Sup. Ct., 1881.) Enticing Hog Away. Defendant was indicted and convicted of larceny of a hog. The only evidence of caption was that defendant and his accomplice tolled the hog about 20 yards by dropping corn on the ground, then struck the hog with an ax, on which it squealed, and then ran away. SUMERVILLE,

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J. ** The court charged the jury that if they believed the evidence, it was sufficient to show such a taking and carrying away of the property, if done feloniously, as was necessary to make out the offense of larceny. We think the court erred in giving this charge, though the question presented is not free from some degree of doubt and difficulty. * * There must not only be such a caption as to constitute possession of, or dominion over the property, for an appreciable moment of time, but also an asportation, or carrying away, which may be accomplished by any removal of the property or goods from their original status, such as would constitute a complete severance from the possession of the owner. 3 Greenl. Ev., § 154; Roscoe's Cr. Ev., p. 625. It has been frequently held that to chase and shoot an animal, with felonious intent, without removing it after being shot, would not be such a caption and asportation as to consummate the offense of larceny. Wolf v. S., 41 Ala. 412; S. v. Seagler, 1 Rich. (S. C.) 30; 2 Bish. Cr. Law, § 797. It is clear, for example, if one should thus entice an animal from the possession, actual or constructive, of the owner, and toll it into his own inclosure, closing a gate behind him, the custody or dominion acquired over the animal might be regarded as so complete as to constitute larceny. 2 Bish. Cr. Law, § 806. It is equally manifest that if one should, in like manner, entice an animal, even for a considerable distance, and it should, from indocility, or other reason, follow him so far off as not to come virtually into his custody, the crime would be incomplete. The controlling principle in such cases would seem to be that the possession of the owner must be so far changed as that the dominion of the trespasser shall be complete. His proximity to the intended booty must be such as to enable him to assert this dominion, by taking actual control or custody by manucaption, if he so wills. If he abandon the enterprise, however, before being placed in this attitude, he is not guilty of the offense of larceny, though he may be convicted of an attempt to commit it. Wolf's Case, 41 Ala. 412. It would seem there can be no asportation, within the legal acceptation of the word, without a previously acquired dominion. The facts of this case, taken alone, do not constitute larceny. It is not a reasonable inference from them that there was such a complete caption and asportation as to consummate the offense. Reversed. Edmonds v. S., 70 Ala. 8, 45 Am. Rep. 67, B. 511.

Acc. Molton v S., 105 Ala. 18. 16 So. 795, 53 Am. St. Rep. 97 hog, shot but not approached afterwards.

(Tex. Ct. of App., 1886.) Selling a Cow Running at Large. On appeal from conviction of larceny it was contended that all the evidence taken as true did not support the conviction. It appeared that the day before the offense was committed appellant proposed to sell a cow and calf to one Hardy for $20.50-$7.00 down and the rest in the fall. Next morning Hardy and son and defendant went to see the cow. They found a red cow and calf in an open place, sort

of prairie in the woods, which defendant pointed out as the one he wished to sell. They rode around the cow, and Hardy said he would take her, paid defendant $6, and was promised a bill of sale when the rest was paid. Then defendant told Hardy and son to watch the cow, while he would look around for a better one, and swap for this if they wished. Then defendant loped off and was not seen again by Hardy till just before the trial. After waiting some time, Hardy and son drove the cow and calf home. There were several other cattle in the timber near by when the sale was made. Though the parties rode around the cow, they did not drive her; and, for aught that appears, she did not move in her tracks during the time defendant was present. It was not claimed that defendant had any interest in the cow. WHITE, P. J. It is contended most strenuously that such facts do not constitute "a taking" by defendant, under our statute defining theft; that, in so far as he was concerned, the range possession of the owner was never disturbed by him, and that he had not exercised the slightest control over said animals of any kind whatsoever, much less having them in his manual possession, even though but for a single moment. [Here reviewing the cases and texts.] The defendant did not take the animal himself; but by selling it to Hardy, upon the pretense that it was his, he did procure Hardy, who was entirely innocent, and who believed defendant was the owner, to buy and take possession of the animal. This was certainly causing another to be deprived of his property by indirect means, and under circumstances which, in contemplation of the statute, would make him a principal in the theft. * Affirmed. Doss v. S., 21 Tex. App. 505, 2 S. W.

814, 57 Am. Rep. 618.

Followed in Lane v. S., 41 Tex. Cr. R. 558, 55 S. W. 831. Contra, P. v. Gillis, 6 Utah 84, 21 Pac. 404.

(Cal. Sup. Ct., 1888.) Coat Chained to Dummy. Defendant was convicted of stealing an overcoat, and appealed. The only evidence of taking was as follows: "I was inside the store, and heard the chain of the dummy rattle, and on coming outside found defendant with said coat unbuttoned from the dummy, and under his arm, the same being entirely removed from the dummy, and about two feet therefrom and from the place where it had been originally placed on the dummy by me; and the accused was in the act of walking off with the said coat when grabbed by me, he being prevented from taking it away because said coat was chained to the dummy by a chain which ran through the coat-sleeve, and the dummy was tied to the building by a string." SHARPSTEIN, J.

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Where goods were tied by a string, the other end of which was fastened to the counter, and the thief took the goods and carried them towards the door as far as the string would permit, and was then stopped, this was held not to be a severance from the owner's possession, and consequently no felony. 3 Greenl. Ev., § 155. Tested by that rule, the evidence in this case was clearly

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insufficient to justify the verdict, and the defendant is entitled to a new trial on that ground. * * Reversed. P. v. Meyer, 75

Cal. 383, 17 Pac. 431.

(Ala. Sup. Ct., 1892.) Knocked Out of Owner's Hand. Thompson was convicted of larceny and appeals. WALKER, J. The witness for the state testified that he held out his open hand with two silver dollars therein, showing the money to the defendant; that the defendant struck witness's hand, and the money was either knocked out of his hand or was taken by the defendant, he could not tell positively which. It was after twelve o'clock at night, and the witness did not see the money, either in defendant's possession or on the ground. The court charged the jury: "If the jury find from the evidence that the defendant, with a felonious intent, grabbed for the money, but did not get it, but only knocked it from the owner's hand with a felonious intent, this would be a sufficient carrying away of the money, although defendant never got possession at any time of said money." This charge was erroneous. To constitute larceny there must be a felonious taking and carrying away of personal property. There must be such a caption that the accused acquires dominion over the property, followed by such an asportation or carrying away as to supersede the possession of the owner for an appreciable period of time. Though the owner's possession is disturbed, yet the offense is not complete if the accused fails to acquire such dominion over the property as to enable him to take actual custody or control. Frazier v. S., 85 Ala. 17; Croom v. S., 71 Ala. 14; Edmunds v. S., 70 Ala. 8; Wolf v. S., 41 Ala. 412. It is not enough that the money was knocked out of the owner's hand, if it fell to the ground and the defendant never got possession of it. Reversed. Thompson v. S., 94 Ala. 535, 10 So. 520, 33 Am. St. Rep. 145, B. 513.

Compare several cases as what is taking in robbery, § 147.

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§ 125. "By Trespass." Of this Lord Coke says: "If he hath the possession of it once lawfully, though he hath animum furandi afterward, and carrieth it away, it is no larceny; but this receiveth some distinction, as hereafter shall appear." 3 Inst., c. 47, p. 107.

(Eng. Newgate Sessions, 1662.) Stealing Bedding from Lodgings hired for three months with furniture was held no felony (per Bridgman, Kelyng, and Wilde), because she had a special property in them by her contract; and so there could be no trespass, without which there could be no felony. R. v. Raven, Kelyng 24, B. 631.

(Tex. Ct. of App., 1887.) Same. The owner of a horse gave defendant permission to ride it to a certain point, and then to turn it loose. On his way defendant exchanged the horse for an overcoat.