for carrying the doctrine of exception farther than it has already gone, we feel at liberty, upon the authority of R. v. Hedges, supra, as well as on principle, to decide that as "personal goods" they are within the purview of our statute relative to crime and punishment, and are the subjects of theft. No error. Hoskins v. Tar

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rence, 5 Blackf. 417, 35 Am. Dec. 129, C. 240, Ke. 239, Mi. 642.

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(Cal. Sup. Ct., 1861.) Gold Quartz. Defendant was convicted of larceny of 52 pounds of gold-bearing quartz from the mining claim of the Bush Creek G. & S. M. Co., and judgment was arrested on motion, on the ground that the indictment charged no felony, because it did not indicate whether the rock had been severed from the ledge before it was taken. The state appealed. CROCKETT, J. We find in the books much subtle reasoning in respect to the difference between trespass and larceny in this class of cases. From an early period in English jurisprudence it has been held that in consequence of the stable and permanent nature of real estate, an injury to it is not indictable at common law; and it is therefore not larceny to steal anything adhering to the soil. At first it was held that at least one day must intervene, on the theory that the law would not take notice of the fractions of a day. But this rule has been relaxed, and it is now held that no particular space of time is necessary, only the severance and taking must be so separated by time as not to constitute one transaction. The authorities maintaining these nice distinctions are fully collated. in 2 Bishop on Criminal Law, §§ 667, 668, 669. We confess we do not comprehend the force of these distinctions nor appreciate the reasoning by which they are supported. We do not perceive why a person who takes apples from a tree with a felonious intent should only be a trespasser, whereas if he had taken them from the ground after they had fallen he would have been a thief; nor why the breaking from a ledge of a quantity of rich gold-bearing rock with felonious intent should only be a trespass if the rock be immediately carried off; but if left on the ground and taken off by the thief a few hours later it becomes larceny. The more sensible rule, it appears to us, would have been that by the act of severance the thief had converted the property into a chattel; and if he then removed it with a felonious intent he would be guilty of a larceny, whatever dispatch may have been employed in the removal. But we do not feel at liberty to depart from a rule so long and so firmly established by numerous decisions, and we have adverted to the question mainly for the purpose of directing the attention of the legislature to a subject which appears to demand a remedial statute. Judgment affirmed. P. v. Williams, 35 Cal. 671, C. 253.

(Eng. C. C. R., 1871.) Poachers Killed 126 Rabbits in the queen's forest, and concealed them in sacks and bundles in a ditch, where they were soon discovered by keepers for Mr. Hollis, who had

license from the queen's commissioners to take game there. The keepers lay in wait, and three hours later defendant, and another, who escaped, came and began removing the rabbits, knowing that they had been so killed. On these facts being found by the jury a verdict of guilty was directed by the judge. BOVILL, C. J. The first question that arises is as to the nature of the property. Live rabbits are animals feræ naturæ, and are not the subject of absolute property; though at the same time they are a particular species of property ratione soli-or rather the owner of the soil has the right of taking and killing them, and as soon as he has exercised that right they become the absolute property of the owner of the soil. That point was decided in Blades v. Higgs, supra, as to rabbits, and in Lonsdale v. Rigg, 26 L. J. 196, Ex., as to grouse. In this case the rabbits having been killed on land the property of the crown, and left dead on the same ground, would therefore in the ordinary course of things have become the property of the crown. But before a person can be convicted of larceny of a thing not the subject of larceny in its original state, as, e. g., of a thing attached to the soil, there must not only be a severance of the thing from the soil, but a felonious taking of it also after such severance. Such is the doctrine as applied to stealing trees and fruit therefrom, lead from buildings, fixtures, and minerals. But if the act of taking is continuous with the act of severance, it is not larceny. The case of larceny of animals feræ naturæ stands on the same principle. Where game is killed and falls on another's land, it becomes the property of the owner of the land; but the mere fact that it has fallen on the land of another does not render a person taking it up guilty of larceny, for there must be a severance between the act of killing and the act of taking the game away. In the present case we must take it that the prisoner was one of the poachers or connected with them. Under these circumstances we might come to the conclusion that it was a continuous act, and that the poachers netted, killed, packed up, and attempted to carry away the rabbits in one continuous act, and therefore that the prisoner ought not to have been convicted of larceny. [Martin, B., Bramwell, B., Byles, J., and Blackburn, J., gave concurring opinions.] Conviction quashed. R. v. Townley, 12 Cox C. C. 59, L. R. 1 C. C. R. 315, 40 L. J. m. c. 144, 24 L. T. 517, 19 W. R. 725, B. 577, C. 256, Ke. 255, 5 L. 458, Mi. 654.

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(Ala. Sup. Ct., 1875.) Growing Corn. By the act of Feb. 20, 1875, stealing of "any part of an outstanding crop of corn or cotton" was BRICKELL, C. J. made grand larceny. # Under this amended statute, an indictment was preferred against the appellant, charging that he "feloniously took and carried away fifteen ears of corn, a portion of an outstanding crop, the property of William Russell, "etc. It is now urged, the indictment is insufficient to support a conviction. because it does not aver the corn taken was not previously severed from the freehold-because there is no

averment that it was the personal property of William Russellbecause it is not averred the corn was part of an outstanding crop. "Portion," as here employed, is the equivalent of the statutory word "part," and, equally with it, describes the act in which the offense consists. A distinct averment that the corn was not, at the time of the felonious taking, severed from the freehold, was not necessary. The statute makes it larceny to steal a thing not the subject of larceny at common law. The general rule is that in an indictment under such a statute the statutory term must be used, and is sufficient. 2 Bish. Cr. Proc. § 731. The purpose of the statute was to convert the severance and asportation of a standing crop-a crop not severed from the freehold-into a criminal offense. Before the statute, under the common law, it was a mere trespass. The felonious taking and carrying away corn, or other produce of the soil, which the owner had severed from the freehold, was larceny at common law. Affirmed. Holly v. S., 54 Ala. 238, F. 273, Kn. 256.

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(Ir. C. C. R., 1889.) Grass Cut, Cured, and Removed. Defendant was convicted of larceny on proof that he cut 12 cwt. of hay on unoccupied land, left it three days on the land to cure and then drew it away. GIBSON, J. *The continuity of transaction contemplated by the common law as excluding larceny may be considered from the point of view of time, act, and possession. The principal element being possession, if the thief is in continuous possession, the occurrence of an interval of time between the taking and the carrying away can of itself make no difference. Townley's case, L. R. 1 C. C. R. 315 [above], only decides: (1) That where there is evidence of actual possession continuing, the fact that there is an interval of time between the taking and carrying away does not constitute larceny where the wrong-doer's intention is not abandoned and the transaction is in substance continuous; (2) that chattels may be in the thief's possession, though left on the owner's land (the chattels there being rabbits which were not subject of property until killed). The expressions "abandon" and "intention to abandon," found in the report of Townley's case, L. R. 1 C. C. R. 315 [above], though not inappropriate when read with reference to the special facts of that case, are liable to misconstruction if employed in reference to such a case as that before us. Where chattels after severance are left on the property of the true owner, no matter what the wrong-doer's intention may be, he cannot escape the common-law doctrine, if his possession is not in fact continuous. Continuity of intention is not the equivalent of continuity of possession. The transaction here was not continuous, and the conviction is right. [Andrews, Harrison. Holmes, Johnson, and O'Brien, JJ., and Morris. C. J., concurred. Palles. C. B., dissented on the ground that whether time indicated abandonment was a question for the jurv.] R. v. Foley, L. R. 26 Ir. 299, 17 Cox C. C. 142, B. 581, Ke. 241, Mi.

(Ala. Sup. Ct., 1892.) Fixtures. Defendant was convicted of larceny on proof that he took valves attached to pipes fixed in a chemical factory and other valves fixed to pipes attached to a pump and boiler standing on skids, drawn from place to place on the plantation as occasion required, and used to pump water from the river to water stock and for irrigation purposes. On appeal, the supreme court held that the valves attached to the pump were personal property, and subject to larceny; but that the valves attached to the factory were real fixtures, and therefore not subjects of larceny. New trial granted. Langston v. S., 96 Ala. 44, 11 So. 334.

(Pa. Sup. Ct., 1893.) Coal Gathered into Boat. Defendant was indicted for larceny of 12 tons of coal, gathered by him from the bed of Mahoney creek, within Bower's farm, where it had been carried and deposited by the water from the waste thrown on the banks of the stream at mines above. The trial court directed an acquittal, and the commonwealth appealed. WILLIAMS, J.

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The judgment must be affirmed because it rests on a verdict of acquittal in a trial for felony. We do not, however, wish to be understood as assenting to the statement of the law applicable to the facts of this case, made by the learned judge to the jury.

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This material, having been abandoned by the original owners, belonged to him on whose land the water left it. The distinction in the mind of the learned judge was that between real and personal estate. The coal lying upon the surface he held to be real estate. The lifting it up in the shovel was, on this theory, a severance, which forcibly changed its character, and made it personal. The loading into the flatboat, the transportation to the bins, and unloading of the boat, all of which acts were done within the lines of the prosecutor's land, and occupied hours of time for each. hoat-load, were so connected with the severance as to make but a single act. For this reason he held that the defendant was guilty of a trespass only. The real question presented is whether this case, upon its facts. is one for the application of the commonlaw rule. Have we here a severance and an asportation that constitute "one and the same continuous act?" If the picking of the coal from the surface be treated as an act of severance; we have next the act of cleaning and sifting; then the deposit of the cleaned coal upon the flatboat, little by little; then the transportation of the boat-load to the bins; then the process of shoveling the coal from the boat into the bins. The acts, occupying considerable time for each boat-load, were all done within the inclosures of the prosecutor. He [defendant] makes no bona fide claim of title; no offer to purchase; sets up no license; but rests on the proposition that, like the man who plucks an apple from a tree, and goes his way, he is liable only as a trespasser. If this be true, he could gather the coal from Bower's land as often as the stream made a sufficient deposit to justify the expenditure of time necessary to gather, clean,

transport, and put it in bins. Upon the same principle, he might gather all the crops growing on Bower's farm, as they matured, and, by hauling each load away when it was made up, defend against the charge of larceny on the ground that the gathering from the tree, the stalk, or the hill, the loading into wagons, and the carrying of the loads away, though occupying hours for each load, and many days for the crop, was "one and the same continuous act" of trespass. We cannot agree to such an extension of the common-law rule, but are of the opinion that this case should have gone to the jury, on the existence of the animo furandi. C. v. Steimling, 156 Pa. St. 400, 27 Atl. 297, B. 588, Mi. 659.

§ 139. "Property."

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(Eng. Chancellor's Question, 1528.) Peacock. The Chancellor put a question to all the judges: If a man feloniously steals peacocks which are tame and domesticated, whether it is felony? Fitzherbert and Inglefield [JJ.] said it is not felony, because they are feræ naturæ, like doves in a dove-cote, and if the young of doves are stolen it is no felony; and a peacock is a bird more for pleasure than profit, for many intentionally kill all the young but one. Fitzjames [C. J.] and the other judges said that peacocks are commonly of the same nature as hens or capons, geese or ducks, and the owner has property in them, and they have animum revertendi, unlike fowls of warren, partridge, etc., taking of which, with felonious intent, is not felony; and at last, it was agreed by all the judges that this taking of peacocks was felony, for the cause aforesaid. Anon., Y. B. 19 Hen. 8, 2 pl. 11, B. 490, Ke. 250. Acc. C. v. Beaman (1857), 8 Gray (Mass.) 497.

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(Mass. Sup. Judicial Ct., 1829.) Doves at Liberty. was convicted of stealing 14 doves, on evidence tending to show that he shot them for food, animo furandi; that the owner reared doves, used them for food, and fed them regularly; and that they lived in houses kept by him, and would come when called; but where they were when shot was not shown. The court admitted that while they were resting on the grounds or buildings of the owner, such taking might be larceny; but that a new trial must be granted in this case, because they might have been shot while in flight a mile from home, or while mingled with the doves of other persons. PARKER, C. J., said: "It is held in all the authorities, that doves are feræ naturæ, and as such are not subjects of larceny, except when in the care and custody of the owner; as when in a dove-cote or pigeonhouse, or when in the nest before they are able to fly." C. v. Chace, 9 Pick. 15, 19 Am. Dec. 348, 1 H. & B. 66.

(Eng. C. C. R., 1851.) Same. On indictment for stealing four