of them, upon a pretended bet that he could not produce so much money; the person with whom it was lodged, counted it, and upon his reporting that there was 1007. in it, it was admitted that the bet was lost; he then handed the 1007. over to one of the others, and upon some pretence induced the prosecutor to go outside the public house with him, and whilst they were absent the other two absconded with the money: the judges held this to be larceny, and that all were equally guilty. R. v. Standley, Jones, and Webster, R. § Ry. 305. On the other hand, where upon a pretended wager of this kind, the prosecutor paid his money, on the wager being determined against him, imagining it to be fairly won: the judges held it not to be larceny, because the prosecutor had parted not only with the possession of his money, but with the property in it also. R. v. Nicholson, Jones, and Chappel, 2 East, P. C. 669, 2 Leach, 698.

Upon the trial of an indictment for stealing a bill of exchange, it appeared that the prisoner obtained the bill from the prosecutor under pretence of discounting it, and desired the prosecutor to come with him to Pulteney-street, and he would give him the money; the prosecutor sent his clerk with him, desiring the clerk privately not to leave the prisoner without receiving the money, nor to lose sight of him; they went accordingly to Pulteney-street, and the prisoner showed the clerk into a room, and bid him wait there for a quarter of an hour and he would bring the money; the clerk however followed him down Pulteney-street, and in turning the corner of an adjoining street he missed him; the prosecutor and his clerk remained for three days and nights at the room in Pulteney-street, but without seeing the prisoner, and it was not until some time afterwards that he was apprehended elsewhere, when he expressed his sorrow for what he had done, and promised to return the bill at the trial, the judge left it to the jury to say, first, whether they thought the prisoner had a concerted design to get the bill into his possession with intent to steal it, and the jury said he had; and secondly, whether the prosecutor intended to part with the bill to the prisoner, without having the money paid first, and the jury answered in the negative; and they were directed then to find him guilty the case being afterwards referred to the judges, they held the conviction to be right. R. v. Aickles, 2 East, P. 675; 1 Leach, 330.

Upon an indictment for stealing three chests of tea, the property of S. Tanner and others, it appeared that Tanner & Co. were carriers between London and Tewkesbury; the prisoner, Longstreeth, calling himself Langstan, came to Tanner's office at Tewkesbury, and inquired if there were any teas for him; the porter informed him that there were three chests directed to J. Creighton, whom he did not know; the prisoner said they were for him, and that the party who had

sent them, had spelt his name wrong by mistake; he paid the carriage and porterage, the three chests were delivered to him, and he afterwards removed and concealed them; the teas in fact were not his, but belonged to a person named Creighton to whom they were directed: the prisoner being convicted, it was referred to the judges to say whether this was a larceny; and they held that it was; for as the carrier's servant had no authority to deliver the teas to the prisoner, the property was not parted with by such delivery. R. v. Longstreeth, R. & M. 137. So, where the prisoner went to an inn at Sodbury on the fair day, and desired the ostler to bring out his horse, and upon the ostler saying he did not know which was his, he went into the stable with him, and pointing to a mare said it was his, and the ostler brought it out; he then attempted to mount her, but the mare being frightened he could not effect it; he then desired the ostler to lead the mare out of the yard, which was accordingly done, but before he could mount her some person who knew the mare came up, and he was detected and secured: Garrow, B., held this to be larceny. R. v. Pitman, 2 Car. & P. 423.

The cases I have here given, under the head of a constructive taking in larceny, show clearly the distinction between parting merely with the possession, and parting with both possession and property in the goods; in the former case it is larceny, in the latter the offence is not larceny, but an obtaining of the goods by false pretences. But however well established this general rule may be, there may be cases coming so exactly upon, or so near to, the line of distinction between the one offence and the other, that there may be some difficulty in deciding whether they amount to larceny, or to the obtaining of money, &c., by false pretences. In such cases, it is always advisable to indict the offender for the latter offence; for by stat. 7 & 8 G. 4, c. 29, s. 53, if upon such indictment, "it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor."

As to cases where the possession of goods, &c., has been obtained by means of false or fraudulent proceedings in courts of justice, see ante, p. 366.

Although in these cases of constructive taking, the possession of the goods is mostly obtained with the consent of the owner or bailee, yet the taking of them for the purpose of applying them to the taker's own use, or of otherwise permanently disposing of them, must be against the will, or without the consent, of the owner. See ante, p. 364.

2. The prosecutor must prove the carrying away or asportation. This is an essential part of the offence of larceny. But any the slightest removal of the thing taken, will be sufficient,

although it be not quite carried off. 1 Hawk. c. 33, 8. 25. Where a guest, having taken the sheets from his bed with intent to steal them, carried them into the hall, but was apprehended before he could get them out of the house, Id.,-where a man took a horse in a close, but was apprehended before he could get him out of it, Id. s. 26,-where a man pulls the wool off a sheep, or takes the skin off, Id. s. 27,-where a man, intending to steal plate, takes it out of the trunk which contained it and places it on the floor, but is detected before he can carry it off, Id. s. 28:-all these have been holden sufficient asportations to constitute larceny. Where it appeared that the prisoner, who was sitting on the driving box of the Exeter mail coach, took hold of the upper end of a bag that was in the front boot, and lifted it from the bottom of the boot on which it rested; he handed the upper end of it to a person near him, and they were both endeavouring to pull it out of the boot, with a common intent to steal it, when the guard of the coach coming up, they dropt the bag again into the boot: the judges held this to be a complete asportation of the bag, sufficient to constitute larceny. R. v. Walsh, Ry. & M. 14. Where a man caused a mare to be brought from the stable into the yard, with intent to steal it, but before he could mount and ride away, he was detected,-this was holden a sufficient asportation. Pitman's case, ante, p. 379. Where the prisoner snatched at an ear-ring, in a lady's ear, tore it from the ear, but it fell amongst her hair, where she found it on her return home,—this was holden a sufficient asportation, and (from the force and violence with which it was effected) robbery. R. v. Lapier, 2 East, P. C. 557. 1 Leach, 360. So, where a man removed goods from the head to the tail of a waggon, with a felonious intent, it was holden a sufficient asportation. 1 Hawk. c. 33. s. 29. R. v. Coslet, 1 Leach, 236. So, where the prisoner tapped a barrel of beer, with intent to steal the beer, and as beer was running from the barrel into a can, he was detected; this was holden to be a sufficient asportation. R. v. Wallis, 12 Shaw's J. P. 236. So, where it appeared that the prisoner drew a pocket book out of the inside breast pocket of the prosecutor's coat, about an inch above the top of the pocket; but the prosecutor suddenly putting his hand up, the prisoner let go the book, whilst it was still about the person of the prosecutor, and the book fell back again into the pocket: the judges held this to be a sufficient asportation to constitute simple larceny, although the larceny from the person was incomplete. R. v. Wm. Thompson, Ry. & M. 78.

But where a thief was not able to carry off goods he intended to steal from a shop, on account of their being attached by a string to the counter, this was holden not to be a sufficient asportation to constitute larceny, because there was no sever

ance, the goods all the time being attached to the counter, Anon. 2 East, P. C. 556. So, where a thief was prevented carrying off a purse, on account of some keys attached to the strings of it getting entangled in the owner's pocket, it was holden not sufficient, for the same reason. R. v. Wilkinson, 1 Hale, 508. 2 East, P. C. 556. So, where the prisoner merely turned a bale on end where it lay, for the purpose of cutting it open and taking the goods out, and he was detected before he effected his purpose: this was holden not to be a sufficient asportation. R. v. Cherry, 2 East, P. C. 556. So, where the prisoner, with a felonious intent, stopped a man carrying a feather bed, and told him to lay it down or he would shoot him; the man laid the bed upon the ground, but before the prisoner could take up, so as to remove it from the spot where it lay, he was apprehended: the judges held the offence to be incomplete. R. v. Farrel, 1 Leach, 266 n. But now, in these cases, where the asportation is holden to be insufficient, the jury may find the defendant not guilty of the larceny, but guilty of an attempt to commit it, by stat 14 & 15 Vict. c. 100, s. 9. Ante, p. 174.

3. The felonious intent. The intent to steal, or animus furandi, has been sufficiently defined, and exemplified by authorities, ante, p. 366. We have there seen that the taking and carrying away, must be either lucri causâ, for the purpose of appropriating the property to the taker's own use, or for the purpose of depriving the owner permanently of it. It is a question entirely for the jury; and, as in all other cases of intent, they must judge of it from the words or acts of the defendant. If, without any bonâ fide claim of right (see ante, p. 365) he have appropriated the property taken to his own use, or have permanently deprived the owner of it, they may fairly infer that the taking was with that intent; but if he were detected before he succeeded in doing so, the jury have then to judge of the intent from the words or acts of the defendant, the mode of taking the property, the circumstances attending it, or any other facts from which they may fairly infer the defendant's intention, see ante, p. 119, 120, and the prosecutor must provide himself with proofs accordingly. And in all cases of larceny, it must appear that the intention to steal existed at the time of the taking, or facts must be proved from which that may fairly be inferred. Where a letter containing a bill of exchange, directed to J. M., St. Martin's-lane, Birmingham, was delivered to another person of that name living near St. Martin's-lane, there being in fact no person of that name residing in the lane; the party, upon opening the letter, must have perceived that it was not for him, but he nevertheless applied the bill to his own use: the judges held this not to be larceny, as it did not appear that the party had any animus

furandi, at the time he received the letter. R. v. Mucklow, Ry. & M. 160. So, where a woman saved some goods of the prosecutor, at a fire which was at his house, and took them home to her lodgings, and the next morning denied that they were in her possession: being tried for stealing them, the jury being of opinion that at the time the woman took them, her intention was to save them from the fire and restore them to the owner, and that she had no intention to appropriate them to her own use until afterwards, the judges held it not to be larceny. R. v. Leigh, 2 East, P. C. 694. So, where a man hired a horse for a particular purpose, but the day following, after the purpose for which he borrowed the horse was over, he rode the horse in a different direction and sold it; it appeared however that he did not offer the horse for sale, but an application being made to him to sell it, he sold it; and upon his trial as for a larceny, the jury found that at the time he borrowed the horse he had no felonious intention: the judges held that this was not larceny; that if the prisoner had not a felonious intention at the time he took the horse, his subsequently withholding and disposing of it did not constitute a new felonious taking; and that the doctrine laid down in 2 East, P. C. 690. 694, and 2 Russell, 1089, 1090, to the contrary, was not correct. R. v. Banks, R. & Ry. 441.

If goods be bailed by the owner to another, the bailee, whilst the bailment subsists, cannot in general be said to commit larceny of them, by converting them to his own use; because in such a case there is no felonious taking, the bailee being already in possession of the goods. 1 Hawk. c. 33, s. 2. R. v. Smith, Ry. & M. 473. But even in that case, if it appear that the party procured the goods to be bailed to him with a felonious intent of appropriating them to his own use, or if he entertained such intention at the time the owner voluntarily bailed the goods to him, his afterwards so appropriating them, would be larceny. Where a man hired a mare to go to Sutton, in Surrey, and back the same evening, giving a false address, and it appeared that in the afternoon he took the mare to Smithfield and sold her: being indicted for larceny and convicted, the jury finding that his hiring the mare was a mere pretence to get her into his possession, and steal her a majority of the judges held it to be larceny. Pear's case, 2 East, P. C. 685, 1 Leach, 253. S. P. Charlewood's case, 2 East, P. C. 689, 1 Leach, 456. So, where the prisoner hired a carriage for three weeks or a month from a coachmaker, took it away and never returned it; he absconded and was not heard of for a year, when he was apprehended on another charge; what became of the carriage did not appear; being indicted for larceny, it was left to the jury to say whether he obtained the carriage with an honest intent to return it, or with a felonious intent to apply it to his own

: