+ Sect. 20. By 9 Geo. 1. c. 22. "If any person or persons "shall set fire to any house, barn, or out-house, or to any hovel, “cock, mow, or stack of corn, straw, hay, or wood; or shall forcibly rescue any person, being lawfully in custody of any offi"cer, or other person, for any of the offences aforesaid; or if any person or persons shall by gift or promise of money, or "other reward, procure any of his majesty's subjects to join him or them in any such unlawful act, every such person so offend“ing shall suffer death without benefit of clergy." (2) 66 Sect. 21. It seems, that accessaries after the offence are still 1 Hale, 573. entitled to the benefit of clergy. (2) There was some difficulty before the passing this statute as to what statutes ousted clergy in cases of arson; but it is not necessary now to go into the question, as those doubts probably suggested the above clause in 9 Geo. 1. which clearly ousts clergy in cases of arson. The reader, however, who is curious on the point, may consult H. H. P. C. sub tit. Arson, (Vol. 1. 572. Vol. 2: 347. 11 Rep. 35. Foster, 330.) CHAP. XIX. (1) OF SIMPLE LARCENY. AND (1) Larceny, or theft, is thus defined by Bracton, the oldest writer who composed a regular treatise upon our laws (for Glanville is much too summary a composition to be called a treatise upon Law,) "Furtum est, secundùm leges, Contrectatio rei alienæ fraudulenta, cum animo furandi, invito illo domino, cujus res illa fuerit." "Cum animo dico, quia sine animo furandi non committitur." (De Corona, 1. 3. c. 32.) This definition he evidently copied from the Civil Law, for "Furtum" is defined by the civilians in almost the same words, except that by the Civil Law taking the mere use of a thing was theft. Furtum est Contrectatio fraudulosa lucri faciendi gratiá, vel ipsius rei, vel etiam usus ejus possessionisve. (Just. Ins. lib. 4. tit. 1. s. 1.) Lord Coke, Mr. J. Blackstone, and Mr. East, all define larceny to be a felonious taking, but it is submitted that though this be true in fact, yet it is vicious as a definition. The defining terms of a definition should not themselves want defining; and as to what shall amount to a felonious taking is the very matter of inquiry. Mr. J. Eyre, in the debate on Pear's case, (2 E. P. C. 553.) seems to have expressed himself with more correctness when he described Larceny to "be the wrongful taking of goods with intent to spoil the owner of them, causá lucri." The definition as given by Mr. East, omitting the word "felonious," may perhaps be correct. He says it is the wrongful or fraudulent taking and carrying away, by any person, of the mere personal goods and chattels of another from any place, with an intent to convert them to his the taker's own use and make them his own property without the consent of the owner." In order to constitute the crime of larceny or 1. theft, there must be, 1. wrongful taking and carrying away"-2. of the goods and chattels, as distinguished from any thing which in fact or in contemplation of law is part of the freehold and of some value-3. with intent to convert them to the taker's use, or, as the civilians express it, "lucri causâ," which distinguishes this taking from a taking with a view to destroy them, or merely to deprive the owner of them, which may be from motives of malice; and with a view to malicious mischief to the owner. And lastly, it must be without the owner's consent, (invito domino.) There is a case, however, existing which falls under none of the definitions of larceny: it was an indictment against two servants for stealing two bushels of beans, the property of John Wimble their master. The jury found as facts that they, by means of a false key, took the beans from the granary and fed their master's horses with them, they choosing to give the horses more than their master allowed, but that they did not take them for their own use or benefit-it is said a majority of the judges held this to be larceny, but upon what principle it is hard to understand. There are also two recent cases of finding which were held to be larceny. The one occurred before Mr. Justice Lawrence, at the Stafford Assiz. 1804. The prisoner found a pocket-book containing bank notes, on the highway, which he converted to his own use. Lawrence J. is reported to have said, that if a man find property and either knows the owner, or there be any marks upon it to ascertain the owner, and the finder, instead of returning it, converts it to his own use, it is a felonious taking and a larceny. In the other case, two prisoners had found a bill of exchange which they endeavoured to ne gociate. 1. Simple Larceny. 2. Mixed Larceny. SIMPLE LARCENY is also of two kinds, 1. Grand Larceny. Dalt, c. 107. 1 Hale, 503, 504. Kely. 24. 58. 137. 160. 2. Petit Larceny. SIMPLE GRAND LARCENY is a felonious and fraudulent taking and carrying away, by any person, of the mere personal goods of another, not from the person, nor out of his house, above the value of twelve-pence. For the better explication of which definition, I shall consider the several parts of it; as, 1. What shall be said to be a felonious and fraudulent taking. 2. What shall be said to be a carrying away. 3. By whom the offence may be committed. 4. What are such goods the taking whereof may be felonious. 5. How far such goods ought to belong to another. 6. Of what value they must be. 7. In what cases simple grand larceny is deprived of the benefit of clergy. As to THE FIRST POINT, viz. What shall be said to be a felonious and fraudulent taking. Sect. 1. It is to be observed, that all felony includes trespass; B. Cor. 45. 48. and that every indictment of larceny must have the words felonicè cepit, as well as asportavit (a); from whence it follows, that if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away. (a) If a horse be stolen, the indictment should run "cepit et abduxit ;" if a sheep, &c. "cepit et effugavit." 1 Hale, 504. C. Cir. Com. 320. 3 Inst. 102. 1 Hale, 504. Sect. 2. And from this ground it hath been holden, that one who finds such goods as I have lost, (2) and converts them to his gociate. Gills J. is stated to have told the jury that it was the duty of any man who found property to endeavour to discover the owner, and restore and not convert it to his own use; that the concealing it and appropriating it to his own use, was the stealing of it. These cases are from the M. S. notes of Mr. Chetwynd, the learned Editor of Burn, and the rulings, certainly, are of two most eminent judges; but finding the goods of another and converting them to the use of the finder, is the very principle of the action of TROVER, and it seems very like converting the proper subject matter of a civil action into a felony. It is also directly against the dictum of Lord Coke, who says, (3 Inst. c. 34.) "If a man find goods and conceal or deny them it is no felony." (2) With respect to finding goods, it must be bona fide finding and the owner not known, as, when a gentleman left his trunk in a hackney coach, and the coachman took and converted it to his own use, it was held felony, for he must have known own where he took up the gentleman and his trunk and where he set him down, and therefore he ought to have restored it to him. A similar circumstance occurred again at the Old Bailey, in 1786. Wynne, who was a hackney coachman, had taken up the prosecutor with several packages at the Adelphi and set him down in Orchard Street, when the prisoner and a servant took all the things out of the coach, except a small corded box in the seat, which contained several articles; for the stealing of which, and of the box itself, the prisoner was indicted. The prisoner being discharged, drove off, and soon after the box was missed. In a few days the prisoner was traced and taken, and the box found, in consequence of a direction from him, at a Jew's, uncorded, and part of the goods only in it; particularly several papers were missing, and among them two books mentioned in the indictment. The jury were of opinion, under the circumstances that the coachman uncorded the box and destroyed the papers with an intent to embezzle the goods found own use, animo furandi, is no felon; and à fortiori, therefore, it 13 Ed. 49, 10. must follow, that one who has the actual possession of my goods S. P. C. 25. by my delivery for a special purpose, as a carrier who receives them in order to carry them to a certain place; or a tailor who has them in order to make me a suit of clothes; or a friend who is intrusted with them to keep for my use; cannot be said to steal them, by embezzling of them afterwards. Sect. 3. And herein our law differs from the civil, which, agree- S. P. C. 25. ably to the Mosaical law, having no capital punishment for bare See Exod. xxii. thefts, deals with offences of this kind as such, as in strict justice most certainly it may; but our law, which punishes all theft with death if the thing stolen be above the value of twelve-pence, and with corporal punishment if under, rather chooses to deal with them as civil than criminal offences, perhaps for this reason in the above-mentioned case, concerning goods lost, because the party is not much aggrieved where nothing is taken but what he had lost before; and for this cause in the other cases, concerning the embezzling of goods delivered to another by the owner, because the party being intrusted with the whole possession, it may be presumed that both the offender and his offence are known, and consequently the person injured is supposed to have a remedy by Dalt. c. 101. action against him; from which consideration some have made it Bract. 1. 3. 150. part of the definition of larceny, that it be committed without the Fleta, 1. 1. 36. knowledge of the owner; and it seems rigorous to have recourse to severe laws, where, probably, more gentle ones will be effectual. There is also a constructive taking of the whole in the law, even where the thing has been delivered by the owner himself, first, for a special purpose, and 2. where he has been beguiled into a delivery of it, not intending to part with the absolute property in it. In which cases the law presumes it still to remain in his possession. See post, Pear's case; Temple's case, and other following cases. 2 Hale, 290. S. P. C. 25. Sect. 4. And agreeably hereto it has been resolved, that even 1 Hale, 505. those who have the possession of goods by the delivery of the 13 E. 4. 9, 10. party, may be guilty of felony by taking away part thereof, with Dalt. c. 102. an intent to steal it; as if a carrier open a pack and take out part Kely. 35. of the goods; or a weaver who has received silk to work; or a 1 R. Abr. 73. miller who has corn to grind, take out part with an intent to steal it; in which cases it may not only be said that such possession of a part distinct from the whole was gained by wrong, and not delivered by the owner, but also that it was obtained basely, fraudulently, and clandestinely, in hopes to prevent its being discovered at all, or fixed upon any one when discovered. Sect. 6. Also it seems generally agreed, that one who has the 3 H. 7. 12. in the box; and found him guilty. And in Easter Term, 1786, a majority of the judges held the conviction proper, (2 East, 664.) If, as it is clear it ought, every taking to constitute a larceny must include a trespass, these cases seem to go to the extreme point. It is difficult to say, that a man is a trespasser, because the owner leaves a thing with him. In the latter case, however, it may be said that the prisoner knowing the owner and where he was to be found, the taking the goods out of the coach, bare with an intent to convert them to his own use, was a trespass. The policy of the decision cannot be doubted, but in matters of law judges ought never to depart from the rigid rule of law. It is their province "jus dicere," not "jus dare ;" and if the convenience or inconvenience resulting from construction of law, is to be admitted as a valid argument, it will leave a latitude of construction ultimately productive of more evil than good. See Note 1. 21 H. 7. 14. bare charge,(3) or the special use of goods, but not the possession B. Cor. 58. 137. of them; as a shepherd who looks after my sheep, or a butler S. P. C. 25. Dalt. c. 102. 1 Hale, 505. Rex v. Murray, Tatum's Case, who takes care of my plate, or a servant who keeps the key to my chamber, or a guest who has a piece of plate set before him in an inn, may be guilty of felony, in fraudulently taking away the same; for in all these cases the offence may as properly come under the word " cepit;" the injury to the owner is as great, and the fraud as secret, and the villainy more base, than if it had been done by a stranger. Sect. 7. So also, if the clerk to a banker or merchant have the care of money, or if he have access to it for special and particular and is sent to the bag or drawer for money, for purposes, the purpose of paying a bill, or if he is sent for the purpose of bringing money generally out of that bag or drawer, and, at the time he brings that money, he clandestinely and secretly takes out other money for his own use, he is as much guilty of a felony as if he had had no care of the money, or access to the bag or drawer whatsoever. + Sect. 8. So also where a person being left in an apartment, pawns the furniture or other property under his care, with a felonious design to steal it, it is felony. Ch. 43. page 327, sect. 10. + Sect. 9. And, in general, where the delivery of the property is made for a certain, special, and particular purpose, the possession is still supposed to reside, unparted with, in the first proprietor. Therefore, where a master delivers goods to his servant to carry to a customer, but instead of so doing he converts them, on his way, to his own use, it is a felonious taking; for the master had a right to countermand the delivery of them, and therefore the possession remained in him at the time of the conversion. + Sect. 10. So also, if a watchmaker steal a watch delivered to him to clean; (u) or if one steal clothes delivered for the purpose of being washed; (b) or goods in a chest delivered with the key for safe custody; (c) or guineas delivered for the purpose of being changed into half-guineas; (d) or a watch delivered for the purpose of being pawned: (e) in all these instances, the goods taken have been thought to remain in the possession of the proprietor, and the taking of them away held to be felony. (e) Cases Cro. Law. 320. (3) A man cannot be said to take that of which he is already in possession. Lord Coke, therefore, makes a distinction between a possession and a bare charge: "There is," says he, a diversity between a possession and a charge; for when I deliver goods to a man, he hath the possession of the goods, and may have an action of trespass if they be taken or stolen out of his possession. But my butler or cook that in my house hath charge of my vessels or plate, hath no possession of them, nor shall have any action of trespass as the bailee shall; and therefore if they steal the plate, &c. it is larceny. And so it is of a shepherd; for these things Sect. be in onere et non in possessione promi, coci, pastoris, &c." "So if a taverner set a piece of plate before his guest to drink in it, and he carry it away, it is larceny; for it is no bailment." With respect to cases of possession, he states the distinction between those who gain possession animo furandi and such as do not. The intent to steal, he says, must be when the thing comes to his hands or possession; for if he hath possession of it once lawfully, though he hath the animus furandi afterwards and carrieth it away, it is no larceny. (S Inst. 47. 107.) S. P. C. 25. Sect. 11. Also it seems clear, that if a carrier, after he has 3 Inst. 107. brought the goods to the place appointed, take them away again B. Cor. 160. secretly, animo furandi, he is guilty of felony; because the pos- 1 Hale, 505. session which he received from the owner being determined, his second taking is in all respects the same as if he were a mere stranger. Raym. 276. Sect. 12. And not only he who first lays his hands on my 1 Hale, 507. goods himself, but in many cases he who receives them from 3 Inst. 108. another, may be guilty of feloniously taking them; as if a person Kely. 43. 1 Sid. 254. intending to steal my horse, take out a replevin, and thereby have the horse delivered to him by the sheriff; or if one, intending to rifle my goods, get possession from the sheriff, by virtue of a judgment obtained, without any the least colour or title, upon false affidavits, &c. in which cases the making use of legal process is so far from extenuating that it highly aggravates the offence, by the abuse put on the law, in making it serve the purposes of oppression and injustice. Sect. 13. Also he who steals my goods from J. S. who had 13 E. 4. 3. stolen them before, may be indicted, or appealed, as having S.P.C. 61.182. stolen them from me, because in judgment of law the possession 100. B. App. 84. as well as the property always continued in me. + Sect. 14. And it seems, that where the property is obtained with a preconcerted design to steal it, the possession is supposed to continue with the true owner, whatever may be the means or the pretence under which the property is obtained. B. Coron. 71. + Sect. 15. Therefore where a person goes into a shop under pretence of buying goods, (ƒ) and they are delivered to him to (f) Raym. look at, and he then runs away with them; or where a person 276. goes into a market and obtains a horse for the purpose of trying its paces, (g) and rides away with it; it is felony. (g) Kely. Bailey, Sept. + Sect. 16. So also if a person hire a horse of a livery-stable- Case of John keeper, to go to a particular place, and promise to return in the Pears, Old evening of the same day, but instead of so doing, immediately Sess. 1779, sells the horse, and converts the money to his own use, it is fe- Cases C. L. lony. 189. + Sect. 17. So also where a person hired a post-chaise for Major Semthree weeks or a month, to go a tour round the North, for the ple's Case, use of which it was agreed that he should pay at the rate of five Old Bailey, July Sess. 1786. shillings a day during the time that he kept it; and that, on his Cases C. L. return, if he chose to keep it, the price was fifty guineas, and he 327. went away with it, and never returned it, it was determined to be larceny. + Sect. 18. So where a person left a note at a hosier's shop, Sharpless and desiring that he would send some silk stockings to his lodgings Greatrex's to look at, and looked out three pair, and went away with them Case, Old while the hosier, by his desire, went home to fetch other goods, Sess. 1772. he was adjudged guilty of larceny. + Sect. 19. So where A. obtained a bill of exchange from B. under a pretence of discounting it, but instead of so doing converted it to his own use. + Sect. Bailey, May Cases C. L. 88. Aickle's Case, Law, 239. |