1 ARTICLE 366.

DEAD BODIES.

2 [The dead body of a human being is not capable of being stolen.

4

3 ARTICLE 367.

THINGS ABANDONED.

Things of which the ownership has been abandoned are not capable of being stolen.

Illustrations.

(1.) To convert treasure trove before office found is not theft.

6

(2.) To convert wreck of the sea is not theft (if the owner is unknown). (3.) To convert goods absolutely lost to the owner, and as to which there is no reasonable ground for believing that the owner can be found, is not theft.

8 ARTICLE 368.

THINGS OF NO VALUE.

'Things of no value to any one are not capable of being stolen, but things valuable to no one but the owner are capable of being stolen.

Illustration.

9 The paper and stamps of the notes of a firm of country bankers which have been paid by the London correspondent and which are capable of being re-issued by the country bankers may be stolen, because they are valuable to the country bankers (as saving the expense of printing new notes), though to no one else.

1 S. D. Art. 292.

2 [R. v. Raynes, 2 East, P. C. 652. Can skeletons and anatomical preparations of parts of dead bodies, or which formerly formed parts of bodies when living, be stolen?-teeth, for instance, intended to be used as false teeth.]

3 S. D. Art. 293.

4 [2 East, P. C. 606-7.

63 Inst. 108. It is however a misdemeanor. See Art. 476.

1 Hawk. P. C. 149, s. 38. This must be understood of wreck of the sea unclaimed, and not of wreck forming part of or belonging to a vessel in distress, as to stealing which see Article 427. Penalties for various offences as to wreck are contained in 17 & 18 Vict. c. 104, s. 477-9 (the Merchant Shipping Act, 1854)]. See Articles 444, 445, and 578. But see R. v. Martin, 3 G. & O. 124, as to larceny of wrecked goods under R. S. C. c. 164, s. 85, Article 396.

7 The law as to finding property is more fully stated in Article 376.]

8 S. D. Art. 294.

[Clarke's Case, 2 Lea. 1036.]

CHAPTER XXXIV.

THEFT IN GENERAL.

1 ARTICLE 369.

DEFINITION OF THEFT.

2 [THEFT is the act of dealing, from any motive whatever, unlawfully and without claim of right with anything capable of being stolen, in any of the ways in which theft can be committed, with the intention of permanently converting that thing to the use of any person other than the general or special owner thereof. ProIvided that the offences defined in Article 447 do not amount to theft.

The ways in which theft can be committed are specified in Articles 370 to 374, both inclusive. In those Articles the word "convert" means such a conversion as is hereinbefore specified.

A claim of right may be founded on a mistake of law.

3

Illustrations.

(1.) A takes B's horse from his stable and backs him down a coal-pit a mile off, in order to prevent the horse from being identified in the trial of C for stealing it. A steals B's horse.

4

(2.) A, a post-office clerk, drops two letters down a water-closet in order that a mistake which he had made in sorting them might not be discovered. A steals the letters.

(3.) 5 A, a servant, gets B's letters from the post-office, and destroys one of them written to B by C, A's mistress, making inquiries of B as to A's character, delivering the rest. A steals the letter.

[3 Hist. Cr. Law, ch. xxviii, p. 121-176.]

1 S D. Art. 295.

2 [R. v. Holloway, 1 Den. 370.

3 R. v. Cabbage, R. & R. 292; 2 Russ. Cr. 205.

4 Wynn's Case, 1 Den. 365.

5 R. v. Jones, 1 Den. 188.]

Þ

1

[(4.) 1 A, puddler, throws an iron axle into his furnace in order to increase the apparent amount of iron puddled therein, on which A's wages depend. The axle, worth 5s., is destroyed, though the iron of which it is composed, and which is much less valuable, remains for the owner. A has stolen the axle.

(5.) 2 A, without his master's leave, takes his master's corn to feed his master's horses.] This is theft.

3

[(6.) A gleans corn, not having, but believing himself to have, a legal right to do so. This is not theft.

(7.) B, a game-keeper, takes snares set by A, a poacher, and a dead pheasant caught therein. A, honestly believing that the snares and pheasant were his property, and that he had a legal right to them, forces B by threats to return them. This is not robbery, and if no violence was used would not be theft.

(8.) 5 A, believing that B owes him £11, and seeing B receive £7, knocks down B and tries to get the £7 out of his pocket, saying "Pay me the eleven sovereigns you owe me." This is not robbery, and if no violence were used would not be theft.

(9.) 6 The ore in a mine belongs to adventurers, and is to be excavated by tributers. One set of tributers are to be paid a larger sum in the pound than the other set for the ore excavated by them. The ore excavated by each set is placed in a heap by itself. A, one of the tributers, moves a quantity of ore from the heap to be paid for at the lower to the heap to be paid for at the higher rate. A has not stolen the ore.

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(10.) Workmen in the glove trade are paid according to the number of gloves finished by them. A (a workman) takes gloves from his master's warehouse and puts them in the place where the newly-finished gloves are put to be counted, so as to increase the apparent number of newly-finished gloves, and with intent fraudulently to obtain payment for the gloves so removed from the warehouse. This is not theft.

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(11.) B uses many bags in his trade, and is supplied with them by C. A, B's servant, takes old bags supplied by C to B from B's house, and puts them in a place outside B's house, where new bags were habitually put by C. C, by concert with A, claims payment for the bags from B as for bags newly supplied. A is guilty of theft, and C is an accessory before the fact.

1 [R. v. Richards, 2 Russ. Cr. 256-7. This case is not altogether easy to reconcile with R. v. Webb; see Illustration (9).

2 R. v. Morfit, R. & R. 307.] This is not theft in England since the passing of 26 & 27 Vict. c. 103.

3 [2 Russ. Cr. 164-5, commenting on Woodfall, Landlord and Tenant.] See also R. v. Horseman, 4 P. & B. 529.

[R. v. Hall, 3 C. & P. 409.

5 R. v. Boden. 1 C. & K. 395.

6 R. v. Webb, 1 Moody 431. By 24 & 25 Vict. c. 96, s. 39, which re-enacts an earlier Act passed in consequence of this decision, this is now felony; see Article 447.

7 R. v. Poole, D. & B. 345; R. v. Holloway, 1 Den. 370, is similar in principle.

8 R. v. Manning, Dear. 21; R. v. Hall, 1 Den. 381, is very like this case.]

2

1 ARTICLE 370.

THEFT BY TAKING AND CARRYING AWAY-ROBBERY.

[Theft may be committed by taking and carrying away without the consent of the owner (even if he expects and affords facilities for the commission of the offence), anything which is not in the possession of the thief at the time when the offence is committed, whether it is in the possession of any other person or not.

If the thing taken and carried away is on the body or in the immediate presence of the person from whom it is taken, and if the taking is by actual violence intentionally used to overcome or to prevent his resistance, or by threats of injury to his person, property or reputation, the offence is robbery.

If the thing taken and carried away is for the first time rendered capable of being stolen by the act of taking and carrying away, and if the taking and carrying away is one continuous act, such taking and carrying away is not theft (except in the cases provided for in Articles 410, 411, 412, 413, 416, 418, 419 and 433.) It seems that the taking and carrying away are deemed to be continuous if the intention to carry away after a reasonable time exists at the time of the taking.

Illustrations.

5

(1.) A finds lost property, knowing who the owner is, and converts it. This is theft.

(2.) 6 A, a trespasser, finds a dead rabbit lying in a wood, of which he is not the owner, and converts it. This is theft.

1 S. D. Art. 296.

2 Cases in Illustrations.

3 [Property in no one's possession is said to be constructively in the possession of its owner. The object of this fiction is to satisfy a supposed necessity for shewing that the taking in theft must be a taking out of some one's possession.

4 R. v. Townley, L. R. 1 C. C. R. 315.

5 See Article 376 on " Finding."

Blades. v. Higgs, 11 H. L. C. 621.]

1

[(3.) 1 A carpenter finds nine hundred guineas in a bureau lent to him to repair, and converts them. This is theft.

(4.) 2 A finds iron dropped from some canal boat or other, at the bottom of a canal, from which the water bas been let off, and converts it. This is theft.

3

(5.) A instigates B, C's servant, to help A to steal money in C's desk. B tells his master, C. C, in order to detect A, tells B to go on with the business, and so arranges matters as to give A and B opportunities to break open the desk and take the money. This is theft in A.

(6.) A snatches a bundle from B's hand, and runs away with it. This is theft, and not robbery, as the violence used was only to get possession of the bundle.

(7.) 5 A, at a mock auction, knocks down goods to B, who has not bid for them, pretending that she has. On B's offering to go, A says she shall not be allowed to go unless she pays for the goods knocked down to her, which she does. This is theft at least, and perhaps robbery.

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(8.) A snatches at a sword worn by B. A and B struggle for the sword, and A gets it. This is robbery.

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(9.) A, in cutting the string by which a basket is tied, with intent to steal it, accidentally cuts the wrist of the owner, who at the same moment tries to seize and keep it. The cut causes the owner to withdraw her hand, and the thief gets the basket. This is theft, but not robbery, because the actual violence was not intentional.

(10.) 8 A, B, and C surround D in such a way as to make resistance by D practically useless, and take his watch, without actual force or threat, This is robbery.

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(11.) A mob of seventy persons demands money of a person, threat

1 [Cartwright v. Green, 8 Ves. 405.

2 R. v. Rowe, Bell. C. C. 93. In this case, Pollock, C.B., said the company had "sufficient possession to maintain an indictment for larceny." The "possession" in question could scarcely be called actual.

3 R. v. Eggington, 2 East, P. C. 666. This was similarly decided by the Romans, "illud quæsitum est cum Titius servum Mævii solicitaverit, ut quasdam res domino subriperet et ad eum perferret, et servus id ad Mævium pertulerit. Mævius autem dum vult Titium in ipso delicto deprehendre, permiserit servo quasdam res ad eum perferre, utrum furti an servi corrupti Judicio teneatur Titius an neutro? Et cum nobis super hac dubitatione suggestum est et antiquorum prudentium super hoc altercationes perspeximus quibusdam neque furti, neque servi corrupti actionem præstantibus, quibusdam furti tantummodo; nos hujusmodi calliditati obviam euntes per nostram decisionem sanximus non solum furci actionem sed et servi corrupti contra eum dari."-Institutes, iv. i. 8. 4 Six cases all to this effect are collected in 2 Russ. Cr. 90.

6 R. v. McGrath, L. R. 1 C. C. R. 205. The case of R. v. Morgan, Dear. 395, somewhat similar; see, too, R. v. Lovell, L. R. 8 Q. B. D. 185, which is to the same effect.

6 Davie's Case, 2 East, P. C. 709.

R. v. Edwards, 1 Cox, C. C. 32; 2 Russ. Cr. 90.

8 Hughes's Case, 1 Lewin, 301.

9 Simon's Case, 2 East, P. C. 731.]