"In State v. Mills, 12 Nev. 403, this court acknowledged the correctness of the principle that, where the intent is to deprive the owner of his property, it is not essential that the taking should be with a view to pecuniary profit.

"In Dignowitty v. State, 17 Tex. 530, 67 Am. Dec. 670, the court said: 'But to constitute the felonious intent, it is not necessary that the taking should be done lucri causa; taking with an intention to destroy will be sufficient to constitute the offense, if done to serve the offender or another person, though not in a pecuniary way.'

"And, said the court in Hamilton v. State, 35 Miss. 219: The rule is now well settled that it is not necessary, to constitute larceny, that the taking should be in order to convert the thing stolen to the pecuniary advantage or gain of the taker, and that it is sufficient if the taking be fraudulent, and with an intent wholly to deprive the owner of the property.' Roscoe, Crim. Ev. (2d ed.) 533; Rex v. Cabbage, Russ. & R. 292; Rex v. Morfit, Russ. & R. 307. And it is said by the commissioners of criminal law in England, that 'the ulterior motive by which the taker is influenced in depriving the owner of his property altogether, whether it be to benefit himself or another, or to injure any one by the taking, is immaterial.' The rule we consider to be in accordance with the principle on which the law of larceny rests, which is to punish the thief for wrongfully and feloniously depriving the owner of his property. The reason of the law is to secure a man's property to him, and that is to be carried out rather by punishing the thief for feloniously depriving him of it, than for wrongful gain he has made by the theft. The mortal wrong is founded in the wrongful and felonious deprivation."

"Sustaining the same doctrine in Warden v. State, 60 Miss. 640, the court said: 'It seems to meet the approval, also, of most of the modern writers on criminal law, and to be sanctioned by many cases both English and American.'

"In State v. South, 28 N. J. L. 28, 75 Am. Dec. 250, the question was whether the fraudulently depriving the owner of the temporary use of a chattel is larceny at common law; whether the felonious intent or animus furandi may consist with an intention to return the chattel to the owner. It was held that if the property is taken with the intention of using it temporarily only, and then returning it to the owner, it is not larceny; but if it appear

that the goods were taken with the intention of permanently depriving the owner thereof, then it is larceny. And in State v. Davis, 38 N. J. L. 177, 20 Am. Rep. 367, the same court adhered to the doctrine announced in State v. South, supra, and said: 'There has been no case decided in this state that has held that where the taker had no intention to return the goods, that the taking was merely temporary. Nor is there anything that should control the action of the jury, or the court acting as such, under the statute, when they find that the party having no such intent is guilty of larceny. It would be a most dangerous doctrine to hold that a mere stranger may thus use and abuse the property of another, and leave him the bare chance of recovering it by careful pursuit and search, without any criminal responsibility in the taker.'

"In Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506, and Com. v. Mason, 105 Mass. 166, it was held that the wrongful taking of the property of another, without his consent, with intent to conceal it until the owner offered a reward for its return, and for the purpose of obtaining the reward, was larceny of the property taken. And see also, People v. Jaurez, 28 Cal. 380; State v. Brown, 3 Strobh. L. 516; Keely v. State, 14 Ind. 36; Rex v. Cabbage '1 Russ. & R. 292; 1 Rex v. Morfit, Russ. & R. 307; Reg. v. Holloway, 1 Den. C. C. 376, note a.

"Mr. Stevens, in his General View of the Criminal Law of England, 127 says: "It is larceny to take and carry away a personal chattel from the possession of its owner with intent to deprive him of the property.'

"Mr. Roscoe, in his Criminal Evidence, 621, says: 'Eyre, Ch. B., in the definition given by him, says: "Larceny is the wrongful taking of the goods with the intent to spoil the owner of them lucri causa.' And Blackstone says: "The taking must be felonious, that is, done animo furandi, or, as the civil law expresses it, lucri causa.' The point arrived at by these two expressions, animo furandi and lucri causa, the meaning of which has been much discussed, seems to be this, that the goods must be taken into the possession of the thief with the intention of depriving the owner of his property in them. Property is the right to the possession, coupled with an ability to exercise that right. Bearing this in mind, we may perhaps safely define larceny as follows: the wrongful taking possession of the goods of

another with intent to deprive the owner of his property in them.” And see, Archb. Crim. Pr. & Pl. (Pomeroy's Notes) 1185; Barbour, Crim. L. 174; 2 Bishop, Crim. L. 848.

"Against these authorities we are referred to four cases, viz: People v. Woodward, 31 Hun, 57; Smith v. Shultz, 2 Ill. 490; Wilson v. People, 39 N. Y. 459, and United State v. Durkee, 1 McAll. 196. In People v. Woodward, there was an able and exhaustive dissenting opinion by one of the three justices, and no authorities are cited in support of the majority opinion except Whart. Am. Crim. L. § 1784, and certain cases therein referred to, which do not sustain the text. In Smith v. Shultz, supra, the court only says: 'Every taking of the property of another without his knowledge or consent does not amount to larceny. To make it such, the taking must be accompanied by circumstances which demonstrate a felonious intention.'

"But the court does not say there can be no felonious intent except there be a taking lucri causa. In Reg. v. Holloway, 1 Den. C. C. 376, Parke, B., defined 'felonious' to mean that there is no color of right or excuse for the act, and the intent must be to deprive the owner, not temporarily, but permanently, of the property. In Wilson v. People, supra, it was only decided that the felonious intent must exist at the time of the taking. In United States v. Durkee, supra, the court instructed the jury as follows: 1. That, if you believe from the evidence, that the prisoner took and carried away the arms with intent to appropriate them, or any portion of them, to his own use, or permanently deprived the owner of the same, then he is guilty. 2. But if you believe that he did not take the arms for the purpose of appropriating them, or any part thereof, to his own use, and only for the purpose of preventing their being used on himself or his associates, then the prisoner is not guilty.'

"To constitute larceny the taking must be felonious, and it is so when the intent is to permanently deprive the owner of his property, against his will.” *

*NOTE. The extreme importance of this matter is quite obvious, whether the accused is to be precluded from introducing evidence tending to show that the taking was in a spirit of mere mischief, or was with a felonious intent, is evidently a question of considerable importance, at least to the party on trial. In the one case, he is punishable for misdemeanor with the possibility of a mere

§ 449. Every Larceny must Include a Trespass.-It is a a well established, but somewhat technical rule, that every larceny

fine. In the other case, it is treated as a felony, and he meets with a criminal's brand that follows him through life. That the distinction I have undertaken to outline is by no means fanciful, I will refer to the recent case of People v. Woodward, 31 Hun, 57, decided by the general term of the supreme court of the state of New York. Boardman, J., says: "Upon the evidence it is certainly a grave question whether the act charged and proved was larceny or malicious mischief. To constitute larceny there must have been a felonious intent, animo furandi or lucri causa. The malicious killing of a horse is a misdemeanor. The offenses are quite distinct. In either case there is a trespass. In larceny the taking must be for the purpose of converting to the use of the taker. In malicious mischief no such intent is necessary. In the pres ent case the evidence tends to show a taking of the horse to kill him, with a sole desire to injure the owner. It was incumbent on the court then to point out to the jury the legal elements in the crime of larceny, so as to distinguish it from malicious mischief. This, we think, was not done. The jury was told, in substance, if defendant took or procured to be taken this horse, and killed or aided in killing him, he must be found guilty. In no part of the charge is this language modified or qualified.

"The seventh request to charge is as follows: There must have been a felonious intent, for without such an intent there was no crime, and the felonious intent must have been formed before the taking; and that if, before the taking of the horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute, classed among misdemeanors under the term of malicious mischief.' The defendant excepted to the refusal to charge as requested. The request to charge, the refusal to charge, and the exception are all very informal and inartificial, but sufficient, we think, to present the important point in the case.

"The defendant was entitled to have the jury instructed in substance as re. quested. Mr. Wharton in his work on Criminal Law, §§ 1781-1784, has considered whether larceny can exist where there is no intent on the part of the taker to reap any advantage from the taking. He has reviewed the decisions from the case of Rex v. Cabbage, 1 Russ. & R. 292, to the time of his writing, and concluded that the qualification, 'lucri causa,' has been accepted by our courts as an unquestioned part of the common law. He says (§ 1784): Thus it has been frequently held to be a misdemeanor, of the nature of malicious mischief, to kill an animal belonging to another, though it has never been held larceny so to kill and take, unless some benefit was expected by the taker." And he cites, in support of such statement, among other cases, Com. v. Leach, 1 Mass. 59; People v. Smith, 5 Cow. 258; Loomis v. Edgerton, 19 Wend. 420. The conclusion is sustained by the authorities.

"It was a serious matter for the defendant whether he should be convicted of grand larceny upon facts which he claimed could only constitute malicious mischief. He had the right to have the distinction pointed out to the jury. He requested it, but it was not done. Thus the court neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been convicted of a felony, while the facts and the charge

must include a trespass, and that the taking must be under such circumstances, as that the owner might maintain an action of trespass. It follows, therefore, that the prosecutor must be in the actual or constructive possession of the property at the time of the taking. The application of these principles has been a fruitful source of litigation, and distinctions and refinements, which have rendered the administration of criminal justice in this class of cases exceedingly difficult. People v. McDonald, 43 N. Y. 61. And without this element the offense is not complete. 1 Hawk. P. C. p. 108, § 1; 2 Russell, Crimes (5th Am. ed.) 95; Hilderbrand v. People, 56 N. Y. 394, 15 Am. Rep. 435. Even although the owner is induced to part with his property by fraudulent means, yet if he actually intends to part with it, and delivers up possession absolutely, it is not larceny. Smith v. People, 53 N. Y. 111, 13 Am. Rep. 474; Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123.

It is doubtless a general rule that every larcenous taking must be such as that trespass would lie therefor. Then another is, that trespass will not lie, unless the owner of the property is in the actual or constructive possession at the time of taking. Then another, that such possession must have existed apart from the charge of the property of the custodian; and that neither the civil nor the criminal action will lie, when such possession has been had only through his custody of it. But there have been some modifications of these rules. One is, that larceny may be charged, in such case, when the felonious appropriation is after the property reaches its ultimate destination. People v. Phelps, 72 N. Y. 334.

§ 450. Corpus Delicti must be Shown.-Every criminal charge necessarily involves two distinct propositions: (1) That a criminal act has been committed; (2) that the guilt of such act were equally applicable to a misdemeanor. The learned county judge very properly and fully recognized the serious importance of this question when he stayed the execution of the sentence pending an appeal.”

The presiding justice Learned entered a vigorous dissent from the conclusions of his associates. While I have no wish to intrude upon this controversy, I cannot refrain from the observation that on principle and authority, the dissenting view must be regarded as correct. The very opening sentence of Judge Learned's opinion is so ruthlessly logical, as to silence all argument in favor of the contrary rule. He says: "I cannot see why it is not as felonious to take another's property, with intent to injure him, as to do the same act in order to benefit the taker. Indeed, the former is the more malicious act of the two."