And there

must be a severance.

Where there

taking the linen out, and cut the wrapper all the way down for that purpose; but that he was discovered and apprehended before he had taken any thing out of it; and all the Judges agreed, upon this case being saved for their consideration, that it did not amount to larceny, though the intention of the prisoner to steal was manifest. They held, that some removal of the goods from the place where they were was necessary; and that the party accused must, for the instant at least, have the entire and absolute possession of them. (s) But if every part of the thing is removed from the space that part occupied, though the whole thing is not removed from the whole space which the whole thing occupied, the asportation will be sufficient. Thus where the prisoner had lifted up a bag from the bottom of the boot of a coach, and was detected before he got it out of the boot; and it did not appear that the bag was entirely removed from the space which it at first occupied in the boot; but the raising it from the bottom had completely removed each part of it from the space which that specific part occupied : the Judges held, upon a case reserved, that there was a complete asportavit. (1) And by the same rule, drawing a sword partly out of the scabbard, will constitute a complete asportavit.

In a case where goods in a shop were tied to a string, which was fastened by one end to the bottom of the counter, and a thief took up the goods and carried them towards the door, as far as the string would permit, and was then stopped; this was holden not to be a felony, because there was no severance. (u) And in a more ancient case, where a thief took from the pocket of the owner a purse, to the strings of which some keys were tied, and was apprehended with the purse in her hand, but still hanging by means of the keys to the pocket of the owner, it was ruled not to be larceny; on the ground that as the purse still hung to the pocket of the owner by means of the strings and keys, it was in law still in his possession. (x)

But where there has once been a sufficient taking of the goods has been a suf- by the thief, the offence is completed, and will not be purged by a returning of the goods, as has been already shewn in the case of a taking by robbery. (y)

ficient taking, the offence will not be purged by returning the goods. Of the animus furandi.

One of the most material considerations respecting the taking and carrying away of goods necessary to constitute larceny is whether the fact were done animo furandi-" cum animo dico, "quia sine animo furandi non committitur." () The ordinary discovery of such felonious intent is where the party commits the fact clandestinely, or, upon its being laid to his charge, denies it: but this is by no means the only criterion of criminality; for in cases that may amount to larceny, the variety of circumstances is so great, and the complication thereof so mingled, that it is im-.

(s) Cherry's case, Oxford Lent Ass. 1781, and East. T. 1781. 2 East. P. C. c. 16. s. 4. p. 556. 1 Leach 236, 237, note (a).

(1) Rex v. Walsh, East. T. 1824. MS. Bayley, J., and Ry. & Mood.

C. C. 14.

(u) Anon. cor. Eyre, B., 2 East. P. C. c. 16. s. 4. p. 556.

(x) Wilkinson's case, 1 Hale 508. And see also as to the possession of the property by the thief, in cases of robbery, Lapier's case, ante, 63. and Farrel's case, 63. (y) Ante, 63. And see 2 East. P. C. c. 16. s. 5. p. 557. (z) Ante, 93.

possible to recount all those which may evidence a felonious intent, or animum furandi. It is useful to refer to those points which have already come under consideration: but new cases will continually occur, in which the felonious intent must be left, upon the particular circumstances, to the due and attentive consideration of the court and jury, who will not forget the excellent rule, that in doubtful cases it is proper rather to incline to acquittal than conviction. (a)

only a tres

It is clear that the taking, though wrongful, may only amount Cases where to a trespass. Thus, if a man takes away the goods of another the taking is openly before him or other persons, otherwise than by apparent pass. robbery, this carries with it an evidence only of a trespass, because done openly in the presence of the owner or of other persons who are known to the owner. (b) And the evidence of its being only a trespass will be strong, where a person, having possessed himself of the goods of another, avows the fact before he is questioned. (c) Again, if a man leaves a harrow or plough in a field, and another person who has land in the same field uses those instruments, and having done with them either returns them to the place where they were, or acquaints the owner with his having taken them, this is no felony, but at most a trespass. (d) And the same conclusion must be drawn where a man, having cattle upon a common which he cannot readily find, takes his neighbour's horse which is depasturing on the common, rides about upon it to find his cattle, and, when he has done with it, turns it again upon the common. (e) But the case will not be so clear where the property is taken without the privity or leave of the owner, and no intention to return it is manifested by the party by whom it was taken.

In a case where two men were indicted for stealing a mare and a gelding, it appeared that the prisoners went to the stables of the prosecutor (who was an innkeeper at a place called Petty France), in the night-time, opened them and took out the mare and the gelding, and rode on them to Lechdale, a place above thirty miles off, where they took them to different inns, and left them in the care of the ostlers, directing the ostlers to clean and feed them, and saying that they should return in three hours: and it appeared also that in the course of the same day the prisoners were taken at a distance of fourteen miles from Lechdale, walking towards Farringdon in Berkshire, in a direction from Lechdale. Upon these facts, the jury, having been directed to consider whether the prisoners, when they took the mare and gelding, intended to make any further use of them than to ride them for the purpose of assisting them on their journey towards the place where they were going, and then to leave them to be recovered by the owner or not as it might turn out, found the prisoners guilty; but they added that they were of opinion, that the prisoners meant merely to ride the horses to Lechdale, and to leave them there; and had no intention to return for them, or to make any further use of them. At a conference of the Judges this

(a) 1 Hale 509. 4 Black. Com. 232. (b) 1 Hale 509.

(c) 2 East. P. C. c. 16. s. 98. p. 661, VOL. II.

H

(d) 1 Hale 500. 4 Black. Com. 252.
(e) 1 Hale 509.

them to a

Philipps and
Strong's case.
The prisoners
took two
horses from a
stable, rode
place at a
considerable
distance, and
there left
them, pro-
ceeding on
their journey
on foot; and
the jury hav-
ing found that

the horses
were taken by
the prisoners
only in order
and after-
wards leave

to ride them,

them, it was holden to

trespass.

not la

The taking may be by

mistake, without any animus furandi.

The animus

furandi may

finding was considered; when one of them (ƒ) thought that the case amounted to felony, because there was no intention to return the horses to the owner, but, for ought the prisoners concerned themselves, to deprive him of them and another of the Judges appears to have entertained doubts upon the case. (g) But the rest of the Judges held it to be only a trespass, and no felony, as there was no intention in the prisoners to change the property, or make it their own, but only to use it for the particular purpose of saving their labour in travelling. They agreed, however, that it was a question for the jury; and that, if the jury had found the prisoners guilty generally upon this evidence, the verdict could not have been questioned. (h)

Clandestinely taking away articles in order to induce the owner, a girl, to fetch them and thereby to give the party an opportunity to solicit her to commit fornication with him is not a felonious taking. The prisoner took from a house in the night a young girl's bonnet, and some other articles of her dress, and carried them to a hay-mow where he had twice had connection with her; and the jury thought that he only took them in order that she might again go to the mow, and that he might have another opportunity of soliciting her to repeat the connection. Upon a case reserved the Judges thought the taking with such an intent was not felonious and the prisoner was pardoned. (i)

A taking of another's property may also be by mistake, arising from heedlessness or accident, in which the animus furandi has no part. Thus, if the sheep of A. stray from his flock to the flock of B., and B. drive them along with his own flock, and, by mistake, without knowing or taking heed of the difference, shear them, it is no felony. But if B. knew them to be the sheep of another person, and tried to conceal that fact; if, for instance, finding another's mark upon them, he defaced it, and put his own mark upon them; this would be evidence of felony. (k) And a like conclusion may be drawn, where a party, having possession of another's property, appears desirous of concealing it, or of preventing the inspection of the owner, or of any person who may make the discovery; or where, being asked, he denies having the property, though it is clear that he knew of its being in his possession. On the other hand, a mode of conduct of a different description in these several respects will be evidence to rebut any felonious intent. (7)

The circumstance of the goods being taken on a claim of right may also negative any animus furandi. In one instance, indeed, a man may be guilty of felony in taking his own goods; namely, claim of right. where, having bailed them to another person, he afterwards steals

also be nega

tived by a

(f) Grose, J.

(g) Lord Alvanley. It appears that his lordship, who had been recently called to the bench of C. B. not having been present when the case was first under consideration, declined giving any express opinion. 2 East: P. C. c. 16. s. 98. p. 663. note (a).

(h) Rex v. Philipps and Strong, eor.

Lawrence, J., Gloucester Spr. Ass. 1801. and East. T. and Trin. T. 1801, 2 East. P. C. c. 16. s. 98. p. 662, 663.

(i) Rex v. Dickinson, Mich. T. 1820. MS. Bayley, J., and Russ. & Ry, 420.

(k) 1 Hale 506, 507.

(1) 2 East. P. C. c. 16. s. 97. p. 661,

them from such person in order to charge him for them in an action, or robs the other person of them in order to charge the hundred. (m) But regularly a man cannot commit felony of goods wherein he has a property. Thus, if A. take away the trees of B., and cut them into boards; or, if A. take the cloth of B. and make it into a doublet; B. may take the boards or the cloth, and it will not be felony. (n) So if A. take the hay or corn of B., and mingle it with his own heap or cock, or take B.'s cloth, and embroider it; B. may retake the whole heap of corn or cock of hay (at least so much of them as cannot be easily distinguished from his own), and the garment with the embroidery; and such retaking will be no felony. (o)

If the owner of land upon which a horse has strayed take the horse damage feasant, or if the lord of a manor seize a horse as an estray, though perchance he has no title so to do, yet as the act is not done felleo animo, it will not be felony. (p) But any act of this kind is open to proof of a felonious intention; so that if new marks are given to the horse to disguise him, or his old marks are altered, these will be considered as presumptive circumstances of a thievish intent. (q)

In a case where, after a seizure of uncustomed goods, some persons broke at night into the house where they were deposited, with a design to retake them for the benefit of the former owner, it was holden that any presumption of a felonious intent to steal, as laid in the indictment, (which was for a burglary) was rebutted by the fact which the jury found, namely, that the prisoners intended to retake the goods on the behalf of their former owner. (r)

The following observations on the subject of a felonious taking of taking of corn by gleaning, are made in a modern work in which much corn by gleanuseful matter is collected:" An idea very universally prevails ing. "among the lower classes of the community, that they have a 66 right to glean, that is, to take from off the land the corn that "remains thereon after the harvest has been gotten in; than "which notion nothing can be more erroneous. By custom, in"deed, such a right may possibly in some particular places exist; "and the laudable kindness of tenants generally induces them to "permit the poor to collect the corn they have left upon the "land, and to appropriate it to their own use. As a right, how"ever, it has no more existence than a right to take the tenant's "furniture from out of his messuage, and the pillage in the one case is as much felony as the plunder would be in the other: "for the act is not simply a trespass, but a felony; and the "compiler well remembers a conviction at the Old Bailey, on an "indictment found for the exercise of this supposed right. The "parties were tried before Mr. Justice Rooke, (if he mistake not) "about six years ago." (s)

66

But upon this it is submitted, that though the right to take

(0) 1 Hale 513. 2 East. P. C. c. 16. s. 95. p. 659.

(p) 1 Hale 506, 509.

Where there is any doubt

as to the right, the court will

direct an acquittal.

Where the taking is by finding, it will not amount to larceny, even though there

be the ani

mus furandi.

But this doc

trine must be understood with great limitation.

corn by gleaning has no existence, except possibly by custom in some particular places, (t) such a taking will not necessarily amount to a felony. Undoubtedly it will be an act open, like other acts of trespass which have been mentioned, to proof of a felonious intention, upon which it is peculiarly the province of the jury to determine; but it can hardly be contended, that such taking will amount to larceny, if it should appear to have been merely a taking of the corn left on the ground after the crop had been carried, and to have been done openly, under a claim of right not altogether without colour, though not capable of being established by proof, or to have been done under an apparent sanction, arising from former similar acts of the same individual, or of others in the neighbourhood, having been allowed by the occupier of the land.

It has been observed, with respect to cases where goods have been taken on a claim of right, that if there be any fair pretence of property or right in the prisoner, or if it be brought into doubt at all, the court will direct an acquittal; as it is not fit that such disputes should be settled in a manner to bring men's lives into jeopardy. (u) The master of a Prussian vessel captured by a British ship, and carried into the port of Weymouth, was held not to be guilty of larceny in taking goods from the vessel under the particular circumstances; there being no evidence that he took them for the purpose of converting them to his own private use. (x)

There is one case in which it has been holden, that the taking will not amount to a larceny, though it be accompanied with the animus furandi; namely, where the taking is by a finding of the property. Thus, it is laid down in the books, that if one lose his goods, and another find them, though he convert them, animo furandi, to his own use, yet it is no larceny, for the first taking was lawful. (y) And again; if A. find the purse of B. in the highway, and take it and carry it away, with all the circumstances that usually prove the animus furandi, as denying it, or secreting it, yet it is not felony. (z) But though, where the particular circumstances of any case furnish a presumption of an intended dereliction of treasure trove, or waif, or stray, on the part of the owner, no larceny can be committed by taking them before seizure by the lord; yet in other cases the doctrine of a taking by finding must be admitted with great limitation, and must be understood to apply only where the finder really believes the goods to have been lost by the owner, and does not colour a felonious taking under such a pretence. (a) It will not avail, therefore, where a man's goods being in a place in which ordinarily and lawfully they are or may be placed, a person takes them animo furandi. (b) And, even if the place where the goods are found is not one in which ordinarily they would be deposited, circumstances may shew the