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CHAPTER THE SEVENTEENTH.

OF OFFENCES AGAINST PRIVATE

PROPERTY.

THE next and last species of offences against private sub

jects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larciny, and malicious mischief: and one, that is equally injurious to the rights of property, but attended with no act of violence; which is the crime of forgery. Of these three in their order.

I. LARCINY, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larciny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larciny, which also includes in it the aggravation of a taking from one's house or person.

And, first, of simple larciny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larciny; when of goods to that value, or under, is petit larciny; offences which are considerably distinguished in their punishment, but not otherwise. (1) I shall therefore first con

(1) This distinction is now nearly obliterated, as petit larciny was always punishable by whipping and imprisonment, and is now by transportation or hard labour. 4G. 1. c.11., 53 G.3. c. 162. Still, as grand larciny is capital at common law, and the benefit of clergy is, strictly speaking, available only once, on a second offence the punishment might be death; whereas, petit larciny, however often repeated, can never be capital ; conviction, too, of grand larciny incapacitates from giving testimony, till the punishment be suffered; petit larciny never has this effect. 31 G. 3. c. 35.

sider the nature of simple larciny in general; and then shall observe the different degrees of punishment inflicted on it's two several branches.

SIMPLE larciny then is “ the felonious taking, and carry“ ing away, of the personal goods of another.” This offence

certainly commenced then, whenever it was, that the bounds [ 230 ] of property, or laws of meum and tuum, were established.

How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his present use, seems to be the only offence of this kind incident to such a state. But unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen", any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of considerable doubt. At present we will examine the nature of theft, or larciny, as laid down in the foregoing definition.

· 1. It must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larciny. As if A lends B a horse, and he rides away with him: or, if I send goods by a carrier, and he carries them away; these are no larcinies b. But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcinies ; for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. (2) But bare non-delivery shall not of course be

See Vol. II. p.8. fc. i Hal. P.C. 504. • 3 Inst. 107.

(2) This point, so shortly stated in the text, has given rise to much discussion; the principle, however, on which the numerous cases turn, is very simple and clear. Wherever a person delivers goods to another, he intends thereby to part with the property, and the possession of them, or with the possession only. In the first case no larciny can be committed

by

intended to arise from a felonious design ; since that may happen from a variety of other accidents. (3) Neither by the

by the taker; for it is essential to larciny, that in the taking, there should be trespass; whereas in the case supposed, the owner voluntarily parts with the absolute dominion of the goods, and whatever fraud may have been used, the taker has gained no more than the owner intended him to have. He, the owner, is indeed deceived; he relied on a story which was false ; he believed the taker to be a person different from what he really was, or, he imagined he had a payment which turned out to be valueless. In short, in every one of these cases it will be found on examination, that the party's real complaint is not the loss of the goods, but the disappointment as to some promised equivalent. The short rule, therefore, as to this class is, that whenever the property is parted with as well as the possession, no fraud in the procuring that possession will make the taking felonious.

But where the owner parts only with the possession of the goods, the taking may or may not be felonious; the principle on which it becomes either the one or the other is, there being or not being a trespass in law in the taking, and the general practical criterion to try that by, is the intention of the taker at the time of taking. A requests B to lend him his horse to go to Richmond on; he intends at the time to use the horse for that purpose only, and B complying with his request, intrusts him with the horse for that purpose. It is clear that here the possession is obtained fairly, by a contract entered into between the parties; A is now the lawful special owner of the horse, and no unlawful design of appropriating the horse to himself, conceived afterwards pending the contract, can make that first innocent taking a trespass. When, indeed, the special purpose is accomplished, the special property ceases, and the special possession also ceases in contemplation of law; the general owner is once again invested with the legal possession ; and if then, after the contract is at an end, A conceives and executes the design of riding the horse away, this is a new taking, not made under contract, but a trespass, and felonious.

Next, let us suppose A requesting B to lend him his horse to go to Richmond, as before, but with intent to ride him not there, but elsewhere, and steal him. B complies with this request, and intrusts A with the horse, for the alleged purpose only. It is equally clear here that the possession is not obtained by any contract; if there were any contract, it must be to go to Richmond, for B knew of no other intention; but to that contract A was no party, and therefore cannot rely on it. The conclusion follows, that the possession not being obtained by contract, was by trespass, and consequently the taking was felonious.

The short rule then as to these two classes of cases is this, that where the possession is obtained by a fraud conceived at the time of obtaining it, the taking by such fraud is felonious; but that no after-conceived fraud will make a taking, innocent at the time, felonious. It is the arduous province of the jury to apply this test, collecting from all the circumstances of a case what was the prisoner's intention.

The student will find this subject discussed, and all the important cases clearly stated and arranged, in East's P. C. cap. 16. s. 102, &c.

(3) Bare non-delivery does not in itself raise a presumption of a felonious common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 33 Hen. VI. c.1. the servants of persons deceased, accused of embezzling their masters' goods,

may by writ out of chancery (issued by the advice of the chief [ 231 ] justices and chief baron, or any two of them,) and proclama

tion made thereupon, be summoned to appear personally in the court of king's bench, to answer their masters' executors in any civil suit for such goods; and shall, on default of appearance, be attainted of felony. And by statute 21 Hen. VIII. c.7. if any servant embezzles his master's goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old. But if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at common law 4. (4) So if a guest robs his inn or tavern of a piece of plate, it is larceny:

1 Hal. P.C. 506.

taking, but other circumstances will often prove it to be such; and many cases even of finding property and retaining it have been adjudged to be felonious, where from the circumstances the jury had reason to conclude that the finder knowing the owner, fraudulently concealed the goods from him, and converted them to his own use. Of this kind are the cases of parcels left in hackney coaches, and not restored to the owners, where the jury believed that the coachman knew them, or the places where they were to be found. See 2 East's P. C. c. 16. s. 99.

(4) The statute of Hen. 8. is, by the words of it, so confined in its operations, and the common law embraces so large a number of the cases that might be supposed to fall under it, that it is but little resorted to. But there was a case not falling under it, and upon which much doubt existed at common law, where the goods taken were first delivered to the servant for the master, and by him misapplied and embezzled before they reached the master's hands, so that the master never had any possession of them distinct from that actual possession of the servant. It seemed rather a strong application of technical reasoning under such circumstances, to make the servant's embezzlement a felonious taking from the possession of the master. A decision in the case of a banker's clerk, who received a bill from one of his master's customers, and applied it to his own use, that this was not felony, was justly deemed very alarming, and produced the 39 G.3. C.85., which enacts, that servants or clerks who, by virtue of their employment, receive into their possession money or goods, bills, &c. on their master's account, and fraudulently embezzle or secrete any part thereof, shall be deemed to have feloniously stolen the same, and they and their abettors are made punishable by transportation for fourteen years. 2 East's P.C. c.16. 5.18.

for he hath not the possession delivered to him, but merely the use ®, and so it is declared to be by statute 3 & 4 W. & M. c.9. if a lodger runs away with the goods from his ready-furnished lodgings. Under some circumstances also a man may be guilty of felony in taking his own goods : as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an intent to charge the hundred with the loss according to the statute of Winchester. (5)

THERE must not only be a taking, but a carrying away ; cepit et asportavit was the old law-latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away. As if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down stairs : these have been adjudged sufficient carryings away, to constitute a larciny 8. Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprized before he can make his escape with it; this is larciny".

3. This taking, and carrying away, must also be felonious ; [ 232 ] that is, done animo furandi : or, as the civil law expresses it, lucri causa . This requisite, besides excusing those who labour under incapacities of mind or will, (of whom we spoke sufficiently at the entrance of this book ",) indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master's horse without his knowledge, and brings him home again : if a neighbour takes another's plough that is left in the field, and uses it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I distrein another's cattle, or seize them: all these are misde

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