Held not larceny, as the taking was not wrongful, nor was possession obtained by any false pretext, or with intent to deprive the owner of his property. Stokeley v. S., 24 Tex. App. 509, 6. S. W. 538.

§ 126. Classification.

The difficulty as to whether there had been a trespass sufficient to convict of larceny has arisen in cases in which, for his own purposes, the owner has given the accused custody as servant, in making an exchange, or in some other capacity; or where the accused received the property from another, and the doubt was whether the prosecutor yet had sufficient possession to make the wrongful conversion a trespass; or where the property had been delivered to the accused by mistake, or had been lost and was found by him. Let us examine these in the order named.

§ 127. As Servant.

(Eng. King's Bench, 1470.) BILLING, C. J., said, that if I give my goods to my servant to sell or keep he cannot take them feloniously, for they are in his possession. Anon, 10 Ed. 4, 14 pl. 10, at the end.

(Eng. C. C. R, 1487.) Possession and Custody of Servant Distinguished. HUSSEY [C. J.] put the question: If a shepherd steals the sheep which are in his charge, or a butler the pieces which are in his charge, or servants other things which are in their charge, whether this shall be called felony? And it seemed to him that it would; and he cited a case which was, that a butler had stolen certain stuff which was in his charge, and was hanged for it. HAUGH [J.] cited the case Adam Goldsmith of London, who had stolen certain stuff which was in his charge and was hanged for it. BRIAN [C. J.]: It cannot be felony, because he could not take vi & armis what he had charge of. And the justices were of the same opinion, and so no discussion, etc. R. see M. 13 Ed. 4, f. 3; P. 13 Ed. 4, f. 9; T. 22 Ed. 3 [Fitzh. Abr.] Corone 256, what shall be called felony of goods. Note by reporter, Y. B. 3 Hen. 7, 12 pl. 9, B. 523.

(Eng. Common Pleas, 1533.) Same-Yorke Puts this Question Upon the Statute 21 H. VIII. [c. 7], which is "that if any master or mistress deliver any goods to his servant to keep, who withdraws himself, and goes away with the goods to the intent to steal them, or if he embezzle the goods of his master, or convert them to his own use, if the goods be worth forty shillings, it shall be felony." And a man delivers a bond to his servant to receive £20 of the obligor,

and the servant receives them, and after that goes away, or converts them to his own use, whether this be within the meaning of the statute or not? And by the better opinion it is not, for he did not deliver to him any goods; for a bond is not a thing in value, but a chose in action. And Englefielde [J.] said that if a man deliver to his apprentice wares or merchandises to sell at a market or fair, and he sell them, and receive money for them, and go away, that is not within the statute; for he had not it by the delivery of his master, nor goes off with the things delivered to him. Quaere. For the money was not delivered to the servant by the hands of his master, but of the obligor. But if one of my servants deliver to another of my servants my goods, and he go off with them, that is felony; for it shall be said my delivery. And Fitzherbert [J.] said that in the case of a bond, by gift of omnia bona et catalla, bonds pass. Anon., Dyer 5a, B. 524.

(Eng. Old Bailey, 1664.) Silk Given to Work On. A silk throster had men come to work in his own house, and delivered silk to one of them to work, and the workmen stole away part of it. It was agreed by HYDE, chief justice, KELYNG and WYLDE, JJ., being there, that this was felony, notwithstanding the delivery of it to the party, for it was delivered to him only to work, and so the entire property remained then only in the owner, like the case of a butler who hath plate delivered to him; or a shepherd, who hath sheep delivered, and they steal any of them, that is felony at the common law. Vid. 13 Eliz. 4, 10; 3 H. VII. 12; 21 H. VII. 14; Accord Poulton de Pace, 126. Anon., Kelyng 35, B. 515.

(Eng. C. C. R., 1782.) A Messenger to Deliver Goods Received of Master, turned aside on the way to a public drinking house, at the invitation of two men he met, where they persuaded him to open the package and sell the goods, for which he received eight guineas. It was referred to the consideration of the twelve judges, whether he was guilty of a felonious taking on these facts; and Hotham, B., delivered the unanimous opinion of the judges that the conviction. was proper; for the prisoner standing in the relation of a servant, the possession of the goods must be considered as remaining in the master until and at the time of the unlawful conversion of them by the prisoner; the master was to receive the money for them from the customer, and he could at any time have countermanded the delivery of them. R. v. Bass, Leach C. C. No. 121, 2 East P. C. 566, 698, B. 531.

(Eng. C. C. R., 1788.) Messenger with Money to Buy Goods for Master. William Watson was tried on an indictment containing three counts; the first stating that the prisoner, as a servant, received £3 18s., the money of E. Cowper, his late master, which was delivered to him safely to keep to the use of his said master; and

that afterwards the said prisoner withdrew himself from his master with the money, with an intent to steal the same, and to defraud his said master thereof. The second count stated that the prisoner, having received the said money in the manner above stated, and being with his master, had converted the same to his own use; and both concluded against the form of the statute. The third count was for larceny generally. It appeared that Cowper, who was a surrogate, had sent the prisoner, who was his servant, to buy some blank licenses, and had delivered him the £3 18s. for that purpose; but the prisoner ran away with the money, and being convicted, a question was reserved for the opinion of the judges, whether the evidence supported any of the counts. And in Easter term, 1788, all the judges but the chief baron held that this case was not within the statute, for to keep means to keep for the use of the master, and to return to him. As to the count for larceny, all the judges held this could not be felony at common law; for to make it felony there must be some act done by the prisoner, a fraudulent obtaining of the possession, with intent to steal. R. v. Watson, 2 East P. C. 562, B. 532.

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(Eng. C. C. R., 1793.) Same. Lavender was indicted for larceny at common law of money belonging to John Edmonds. The prisoner was a servant to Edmonds, who had delivered him the money in question to carry to the house of one Flawn, and there to leave the same with him, for bills to be returned later. He did not carry the money to Flawn as directed, but went away with it, purchased a watch and other things with part, and part remained in his possession when he was apprehended. Being found guilty, sentence was respited for the opinion of the judges, whether this were a felony or a breach of trust; and in Easter term, 1793, all the judges held this was a felony, and that the last point in Watson's case above referred to was not law. In Trinity term following this case was again under the consideration of the judges, when they adhered to their former opinion, and some said that the distinction between this case and Watson's, if there were any, was that in Watson's case the money was not delivered to the prisoner to be paid specifically to any other person; but if the prisoner had laid out his own money to the same amount in buying licenses, it would have been a compliance with the order. He was commissioned to merchandise with the money. But they admitted that the distinction, if any, was extremely nice, and Buller, J., thought there was none, and recognized the case of R. v. Paradice, 2 East P. C. 565, Mi. 762, before Gould, J., as good law. R. v. Lavender, 2 East P. C. 566, B. 532.

(Ala. Sup. Ct., 1889.) A Farm Hand Took a Mule. His employer had furnished and sent him with it to the field to plow crops. He plowed till sunset, and then drove the mule away and sold it. For

this he was convicted of larceny. He excepts to the refusal of the court to charge that "if they believe the defendant had charge of the mule, and took it out of the plow whilst in his custody, then he is not guilty of larceny." SOMERVILLE, J. The conviction of the defendant for larceny was proper under the circumstances. The prosecutor had parted only with the custody of the mule, as distinguished from the possession, which was still in him as owner, although the defendant had the custody of the animal as mere employee or servant. It has often been decided, and is now settled law, that goods in the bare charge or custody of a servant, are legally in the possession of the master, and the servant may be guilty of trespass and larceny by the fraudulent conversion of such goods to his own use. * Crocheron v. S., 86 Ala. 64, 5 So. 649,

11 Am. St. Rep. 18, F. 275.

(Ind. Sup. Ct., 1883.) Same. On trial for larceny the court instructed the jury: "If the jury find from the evidence that the defendant was in the employ of the prosecuting witness, Pugh, and was working for Pugh upon his farm, and that Pugh sent the defendant to Terre Haute with a load of corn in a wagon, with the mules charged to have been stolen, and that the defendant, while he still had possession of the mules, sold them, then he is not guilty of larceny, and you should find him not guilty." Verdict, not guilty. On appeal by the state, the supreme court found no error in the charge, saying: "Pugh sent him to that city with the two mules and a wagon, loaded with corn, directing him to sell the corn and collect the money for it, and return the same day. The appellee did not have permission to sell the mules. The principle

is well settled that to constitute a larceny there must be a felonious taking of the property. When property which is lawfully in the custody of an employee or bailee is criminally appropriated to the use of such employee or bailee, the offense may be embezzlement, but it cannot be larceny." S. v. Wingo, 89 Ind. 204, 5 L. 499.

(Ala. Sup. Ct., 1895.) Same. On trial for larceny it appeared that defendant took prosecutor to the train for hire; and on arriving there the prosecutor left with him a quilt and requested him to return it to prosecutor's house, which he consented to do, but instead took it to a store and sold it. He requested the court to charge the jury that if the quilt was received with intent to deliver it as requested and the intent to dispose of it was formed later they must acquit. The request was refused and defendant convicted, and the conviction affirmed on appeal, on the ground that defendant had mere custody and not possession. Holbrook v. S., 107 Ala. 154, 18 So. 109, 54 Am. St. Rep. 65.

§ 128. "In Making an Exchange."

(Eng. Exchequer, 1678.) Shopkeeper Gives Goods for Inspection. Adjudged, that where a person came to a seamstress's shop, and asked her to show him some linen, which she did, and delivered it into his hands, and then he ran away with it, that this is felony; for though the goods were delivered by the owner, yet they were never out of her possession, because though the contract might be begun by asking and telling the price, yet it was not perfected; and the subsequent act of his running away plainly shows his intention to take the goods feloniously before the property was altered, for which he was indicted, convicted, and executed. R. v. Chissers, T. Raym. 275, 3 Salk. 194 (sub nom. R. v. Summers), B. 515, Ke. 217.

Acc. C. v. Wilde. 71 Mass. (5 Gray) 83, 66 Am. Dec. 350; Devore v. Territory, 2 Okl. 562, 37 Pac. 1092, taking team by permission while papers were being drawn.

(Eng. C. C. R., 1853.) Gas in Taker's Pipe. Defendant was convicted of stealing 5,000 ft. of carburetted hydrogen gas, on proof that the owners of the gas connected defendant's pipe with their mains, with a meter in his pipe; and that he made a private connection around the meter, thereby getting the gas without its passing through the meter. For the prisoner it was contended that he received the gas with full consent of the company, and without fraud, and the evidence only showed fraud in tampering with the voucher of account, not in obtaining the possession; and that it was in defendant's pipe and possession with the consent of the company when taken. MAULE, J. The taking was by turning the gas into a new channel without the leave of the company and that was done with intent to defraud. LORD CAMPBELL, C. J. I think that the conviction ought to be affirmed and that the direction of the learned recorder was most accurate. Gas is not less a subject of larceny than wine or oil; but is there here a felonious asportation? No one who looks at the facts can doubt it. The gas no doubt is supplied to a vessel which is the property of the prisoner, but the gas was still in the possession of the company. Then, being in the possession of the company and their property, it is taken away animo furandi by the prisoner. If the property remains in the company until it has passed the meter, which is found, to take it before it has passed the meter constitutes an asportation. If the asportation was with a fraudulent intent-and this the jury also have found it was larceny. Parke, B., Maule, J., Talfourd, J., and Martin, B., concurred. Conviction affirmed. R. v. White, 6 Cox C. C. 213, Dears. 203, 3 Car. & K. 363, 22 L. J. m. c. 123, 17 Jur. 536, 1 W. R. 418, B. 506, C. 381, Mi. 679.

Acc. C. v. Shaw, § 139.

(Eng. C. C. R., 1873.) Delivery at House on Cash Sale. The prisoners met the prosecutor with a cart-load of onions and agreed to buy them for £3 16s., cash on delivery at a place they indicated. He