that she sold goods levied on by Sloan as constable on an execution against her and left in her possession by him awaiting the execution sale. * KNAPP, J. The defendant asked the court to charge the jury that there was a variance in the allegation of property in Sloan, and the proof upon the trial; that, therefore, the defendant should not be convicted. This the court refused to charge, and the evidence is brought here for examination as to the correctness of the court's action in so refusing; but upon the evidence it appears that Sloan, as already stated, had a special property in the goods, and they were therefore properly laid as his goods in the indictment. There was no error in refusing so to charge. The next exception is as to what the court did charge on the subject of ownership. By the bill of exceptions it appears that the court said that by virtue of the execution and levy "the constable became the owner of the goods levied upon until sold by him, and that if she took the goods, or assisted any one else in the taking, she is guilty."

*

*

It is not every sort of taking of these goods that would make her criminally liable. It might have amounted to no more than a trespass or a conversion of the property as against the officer. The goods were left in her custody by the officer. As between them she may have been considered as a mere receiptor for the goods, with the right in the officer to deprive her of her possession and assume it himself. But she not only had their actual custody, but was as well the general owner, and could at any time before sale, by paying the Judgment, remove the officer's hands entirely from her property. Now, unless her taking the goods was under such circumstances as in some way to fraudulently charge him with their value, it is difficult to find any recognized rule of criminal law that would hold her answerable for larceny. This case fails in resemblance to that of Palmer v. P., 10 Wend. 166 [above], in this important feature. * * It would not be every taking by a mere stranger of these goods from the possession of the constable that would amount to larceny. A felonious intent would be a requisite ingredient in such crime. A conversion of the goods by a stranger who had been appointed their keeper by a constable, would not have been a crime but a civil wrong merely. To hold the general owner in possession to a severer rule seems to me to savor of illegal severity. I am unable, in the researches I have made, to find any case which warrants the ascription of criminality to such facts. The case of R. v. Wilkinson, Russ. & Ry. 470 [above], which goes as far as any other that I have found, presented the features of flagrant fraud on the part of the defendants, who were the real owners of the property, upon either the prosecutors or upon the crown. Reversed. Adams v. S., 45 N. J. L. 448, B. 679.

Acc. C. v. Greene, 111 Mass. 392. 5 L. 418; Whiteside v. Lowney, 171 Mass. 431, 50 N. E. 931: Clarke v S., 41 Neb. 370, 59 N. W. 785.

(Ill. Sup. Ct., 1888.) Stealing from Finder. On indictment for larceny of a horse, it was shown that he was stolen from one who

had taken him up as an estray. Held, that the latter had a property in the horse to his full value, as against defendant, and not merely to the extent of his charges for posting. Quinn v. P., 123 Ill. 333, 15 N. E. 46.

(Ga. Sup. Ct., 1900.) Pledged Goods. On charge of stealing a bicycle and suit of clothes of the property and from the house of T. Mack, it appeared that defendant went to prosecutrix to get board, and she demanded pay in advance, saying she had lost considerable by giving credit; on this defendant deposited with her the things he was charged with stealing, which he said she might keep as security for the board. She put them in a room in the house where her son and defendant slept. He stayed about three weeks, and during that time rode on the wheel and wore the suit several times without objection. When the board bill amounted to $7, he was asked to pay, but left without doing so, leaving the suit and bicycle in the house. Later he came secretly and got them, sold the bicycle, and was wearing the clothes when arrested. He claimed that he took the clothes to wear on the job where he was at work to get money to pay the bill. Being convicted on this proof, motion for new trial, for want of evidence to support the verdict, was denied, and on error the judgment was affirmed. "Property in the hands of a bailee may be stolen by the general owner.' Henry v. S., 110 Ga. 750, 36 S. E. 55, 78 Am. St. Rep. 137, Mi. 665.

§ 137. "Valuable."

(Eng. C. C. R., 1795.) Coercing to Sign Note. The prisoner was charged with robbing the prosecutor of a promissory note. It appeared that the prosecutor had been decoyed by the prisoner into a room for the purpose of extorting money from him. Upon a table covered with black silk were two candlesticks covered also with black; a pair of large horse pistols ready cocked; a tumbler glass filled with gunpowder; a saucer with leaden balls; two knives, one of them a prodigiously large carving knife, their handles wrapped in black crape; pens and inkstand; several sheets of paper and two ropes. The prisoner, Mrs. Phipoe, seized the carving knife, and threatening to take away the prosecutor's life, the latter was compelled to sign a promissory note for £2,000 upon a piece of stamped paper which had been provided by the prisoner. It was objected that there was no property in the prosecutor, and the point being reserved for the opinion of the judges, they held accordingly. They said that it was essential to larceny that the property stolen should be of some value; that the note in this case did not on the face of it import either a general or special property in the prosecutor, and that it was so far from being of any the least value to him, that he

had not even the property of the paper on which it was written; for it appeared that both the paper and ink were the property of Mrs. Phipoe, and the delivery of it by her to him could not, under the circumstances of the case, be considered as vesting it in him; but if it had, as it was a property of which he was never, even for an instant, in the peaceable possession, it could not be considered as property taken from his person, and it was well settled that, to constitute the crime of robbery, the property must not only be valuable, but it must also be taken from the person and peaceable possession of the owner. R. v. Phipoe, 2 Leach No. 268, 2 East P. C. 599, Roscoe Crim. Ev. 884, C. 267.

(Eng. King's Bench, 1845.) A Void Check. TINDAL, C. J. There are two charges here-the one a charge of stealing a valuable security, the other a charge of stealing a piece of paper. You may get rid of the first by its being a bad check, but how can you get rid of the other? Rowe [for the prisoner]. It appeared to me that the effect of converting the paper into a check was to make it valuable, if at all, as a security for money, and that, the moment the paper had a check written upon it, it became a chose in action, which is not the subject of larceny. ALDERSON, B. The nature of the paper is not so wholly absorbed in the chose in action as you put it. Rowe. If the paper is not wholly absorbed in the chose of action, I should submit that it was of so infinitesimal value as to fall within the rule de minimus non curat lex. LORD DENMAN, C. J. Your client got £13 9s. 7d. for it. Rowe. This check never could fulfill any good purpose, for want of a stamp. I submit, therefore, that it was valueless, and not the subject of larceny. [The judges considered the conviction right, at least for stealing a piece of paper.] R. v. Perry, 1 Car. & K. 725, 1 Den. C. C. 69, 1 Cox C. C. 222, F. 272, Ke. 245.

§ 138. "Personal.”

(Eng. Assizes, 1338.) Trees. A forester was indicted "that he feloniously cut down and carried away trees." The justices would not arraign him; for the felling of trees which are so annexed to the soil cannot be called a felony, even if a stranger had done it. Besides, here perhaps he himself had the keeping of them. But because it was possible that the trees were first of all felled by the lord and then carried away by the forester, they questioned the inquest, who said that he was the forester when he felled and carried them away. SCHARSHULLE [J.], to the inquest: Did the forester conceal the trees from the lord? The Inquest: We do not know. ALDEBURGH [J.]. Certainly we do not think it important whether he concealed them or not; but we adjudge that it is no

felony, because he was the keeper; and a tree is part of the freehold. Anon., Horwood's Year Book, 11 & 12 Ed. III., 640, B. 488.

(Eng. C. C. R., 1470.) Boxes of Deeds. On indictment for felonious taking and carrying away of six boxes of charters and muniments of title concerning the inheritance of C, the defense was that it was no felony, as it concerned the realty; and all of the justices of the several benches being assembled in the exchequer chamber, it was held that though damages might be had in detinue for the loss of the charters, and they were of greater value than many things, taking of which is felony, and so great an offense ought not to go unpunished; yet they pass to the heir with the inheritance, and are things real, and a franchise to have the chattels of a felon would not include the charters, and the felony cannot be on any goods but personal chattels. So it was advised by them all that this was no felony; wherefore, in the king's bench the defendant was discharged. R. v. Wody, Y. B. 10 Ed. 4, 14, pl. 9 & 10, B. 489.

(Eng. King's Bench, 1634.) Two Acts. "If a man comes to steal trees, or the lead off a church or house, and sever it, and after about an hour's time or so come and fetch it away, it is felony, because the act is not continuated, but interpolated, and in that interval the property lodgeth in the right owner as a chattel, and so it was agreed by the court of king's bench, 9 Car. 1, upon an indictment for stealing the lead off Westminster Abbey." 1 Hale's P. C. 510.

(Eng. King's Bench, 1739.) Court Records. Westbeer was indicted for larceny of a parchment purporting to be a commission, etc. The court expressed a doubt on the evidence whether it was felony, and the jury found specially that the prisoner privately took a parchment writing, value one penny, from the records of the court of chancery, etc. The case was removed to the king's bench by certiorari. It was admitted by the counsel for the prisoner that the parchment writings were neither chattels real nor choses in action; but it was contended that as they related to the boundaries of manors and the right of water, they were charters which concerned the realty; for what can affect the inheritance more than the right of water and the boundaries of a manor? It is true, perhaps, that the heir could not maintain an action to recover them, because they are of that nature which are called nullius in bonis, and every man has an equal right to resort to them. They are in the possession of the crown, as being public records, but it does not follow from thence that they are the property of the king. The court gave no opinion whether these were properly laid to be the goods of the king, nor whether the law as to this case was altered by 8 Hen. VI. c. 12; but they were unanimously of opinion that these parchment writings concerned the realty, and that therefore the prisoner was not guilty of the felony charged in the indictment. R. v. Westbeer,

1 Leach C. C. No. 6, 2 Strange (Ed. 2) 1133, 2 B. & II. 454, C. 242, Mi. 640.

Compare larceny of court rolls in R. v. Walker, § 139. A shroud, coffin, etc., have been held subjects of larceny after burial: 1 Hale P. C. 515, post § 139; and R. v. Edwards, § 139, carcass of a pig.

(Eng. C. C. R., 1802.) Lead Images of Temple. Indictment for stealing 500 pounds of lead, fixed to an outlet to a dwelling-house of the Earl of Clarenden, contrary to 4 Geo. 2, c. 32, making it felony to remove, with intent to steal, any metal from any dwelling-house, etc. The lead taken was in the form of images fixed at the front of a building occasionally used as a tea drinking place by the earl, and separated from his dwelling by a public road and a distance of half a mile. The prisoners were convicted; but at a meeting of all the judges at Lord Ellenborough's chambers, May, 1802, the conviction was held wrong, this being no outlet or garden to any house within the meaning of the statute. R. v. Richards, Russell & R. 28, C. 237.

DEWEY, J. This was an

(Ind. Sup. Ct., 1840.) House Keys. action of slander. The words laid in the declaration to have been spoken by the defendant of the plaintiff, among others, are, "He broke into my room and stole the key." Plea, not guilty. Verdict and judgment for plaintiff. There was evidence that the defendant said of the plaintiff, "He broke into a room of my house and stole the key out of the door." The defendant moved the court to instruct the jury, "That the key in the lock of the door of a house, and belonging thereto, is part of the realty, and not the subject of larceny, unless the same is first severed from the realty by one act and then stolen by another and distinct act." The court refused the charge. This refusal gives rise to a question not free from technical difficulties. It was anciently decided in England that charters and other assurances of real estate, and the chest in which they were kept, savored so much of the realty that they could not be the subjects of theft. But it was held in a later case that a window-sash not hung or beaded into the frame but fastened there by laths nailed across so as to prevent it from falling out, was the subject of larceny. R. v. Hedges, 1 Leach C. C. No. 100. It is not easy, on principle, to reconcile these decisions. The latter case turned on the point that the temporary fastening of the window-sash did not make it a fixture. Certainly title papers and the trunk which contains them are not fixtures. * * It is true that the keys of a house follow the inheritance; and the writers who lay down this doctrine make no distinction between keys in the lock and those in the pockets of their owners. They are nevertheless not fixtures, but personal property, which from a rule of law founded on public convenience like title papers go with the land. And as no decision, so far as we know, has as yet ranked them among the articles upon which larceny cannot be committed, and as we see no good reason