she found the ring lying in the tresses of her hair. The man was tried for stealing this ring, and being found guilty by the jury, the opinion of the judges was taken whether this could be considered a sufficient taking: the opinion of the judges was afterwards delivered, in which they held, that as the ring had been entirely removed from the lady's ear, and was wholly in the possession of the prisoner, although but for an instant of time, when he lost it in her hair, the taking was complete.* So, where a thief led a horse from one part of a field to another, intending to steal it, but was apprehended before he could get the horse out of the field, it was decided the taking was complete.† In all these cases you will have noticed the principle upon which they were decided is that the property must be completely severed from the possession of the owner, and entirely within the possession of the taker, no matter, in each case, for how short a period of time. Two or three cases showing what is not a sufficient taking, and we will then proceed to consider another branch of the subject. One Wilkinson put his hand into the pocket of another, seized his purse, and actually succeeded in taking it out of his pocket. However, the purse being tied by a piece of string to a bunch of keys which still remained in the person's pocket, the thief was unable to complete his object, and was arrested and tried for stealing the purse; but it was held that as the purse was still attached to the pocket of the owner by the string and keys, it was still in his possession, and the prisoner *King against Lapier, 1 Leach, 320. was entitled to be acquitted.* So, where a thief went into a shop, took up some goods intending to steal them, but before he had removed them far from the spot on which they lay, discovered they were tied to the counter by a cord, upon being tried for stealing, it was held that the property never was either completely severed from the possession of the owner, nor completely in the possession of the prisoner, and he was acquitted.† 11.-WITHOUT THE CONSENT AND AGAINST THE WILL OF THE OWNER. The taking may be otherwise than by forcible abstraction against the will of the owner; as where one with an intention to steal induces you by means of some artful device or trick to part with the mere *King against Wilkinson, 1 Hale, 508. These prisoners went free men from the dock of the court, because declared not guilty of stealing; but by a recent Act of Parliament, of a very salutary nature, for which the public is indebted to the Lord Chief Justice of England, Lord CAMPBELL, persons under similar circumstances may now be convicted of the attempt to commit an offence when the evidence fails to establish the full charge. "Whereas" [14 and 15 Vict. c. 100, sec. 9] “offenders often escape conviction by reason that such persons ought to have been charged with attempting to commit offences, and not with the actual commission thereof, for remedy thereof be it enacted, that if, on the trial of any person charged with any felony or misdemeanour, it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanour charged, but is guilty of an attempt to commit the same; and thereupon such person shall be liable to be punished," &c. temporary possession of your goods, you not for a moment meaning to divest yourself of your ownership. This is technically denominated a "constructive taking." In the next chapter I shall have to direct your attention to the subject of cheating and obtaining goods by false pretences, and you will then perceive the importance of well understanding the point we are at present considering; for the main distinction between stealing and cheating is that in the former case you never intended to divest yourself of your ownership; in the latter you did, and, on the faith of some statement or pretence, wholly and entirely dispossessed yourself of your property, and transferred it to another as completely as when you sell your goods and receive the value therefor. Although we shall have hereafter to discuss this matter at some length, I am anxious you should keep it in view while considering what is larceny or stealing, for the purpose of facilitating our subsequent inquiries. What constitutes a taking such as I have just indicated will be more clearly manifest by reference to a few reported cases. One Oliver proposed to give a tradesman gold for bank notes, and upon the tradesman laying down some bank notes for the purpose of having them changed for gold, Oliver took them up and went away with them, promising to return immediately with the gold, but in fact never did return. The judge left it to the jury to say whether the prisoner had the intention, at the time he took the notes, to steal them, for if they were of that opinion, the case clearly amounted to larceny.* *King against Oliver, 2 Leach, 1072. A man of the name of Aickles agreed to discount a bill for the prosecutor, and the bill was given to him for that purpose; he told the prosecutor that if he then sent a person with him to his lodgings, he would give him the amount, deducting the discount and commission; a person was sent accordingly, but, upon reaching the lodgings, the defendant left the messenger there, and went out on pretence of getting the money, but never returned: the judge. left it to the jury to say whether Aickles obtained possession of the bill with intent to steal it, and whether the prosecutor meant to part with his property in the bill before he should have received the money for it; the jury being of opinion that Aickles intended to steal the bill at the moment he got it into his possession, and further, that the prosecutor never meant to part with his property in the bill until he should receive the money for it, convicted the prisoner, and the judges afterwards held the conviction to be right. Where one Davenport obtained from a silversmith two cream-ewers, in order that a customer of the silversmith, with whom the prisoner said he lived, might select which he liked best, and absconded with them, but the silversmith did not charge for either of the ewers, and did not at the time of the delivery intend to charge for either of them until he had ascertained which would be chosen, this was holden to be larceny, because the possession only, and not the right of property, had been parted with.† So, where Campbell prevailed upon a tradesman to take goods to a particular * King against Aickles, 2 East, 675. Davenport's Case, cited in Arch. C. P. 279. place, under pretence that the price would then be paid for them, and afterwards induced him to leave the goods in the care of a third person, from whom the defendant got the goods without paying the price; the tradesman swore that he did not intend to part with the goods until they were paid for, and the jury found that the defendant intended, from the very beginning, to get the goods without paying for them, this was holden to be larceny.* So, where one Small induced a tradesman to send his goods by a servant to a particular place, with change for a crown piece, and on the way met the servant, and giving him a counterfeit crown piece, induced him to part with the goods and change, which he had no authority to do without receiving payment; this was holden to be larceny.† Where Gilbert having bargained for goods, for which, by the custom of trade, the price should have been paid before they were taken away, took them away without paying and without the consent of the owner, not intending to pay for them, but meaning to get them into his own possession, and dispose of them for his own benefit; this was holden to be larceny. And where the prisoner, intending to get goods by fraud, had them put into his cart upon the express condition that they should be paid for before they were taken out of it, and then took them out of the cart without paying for them, and converted them to his own use, this was * Campbell's Case, 11 M.C.C. 179. † King against Small, 8 Car. and Payne's Rep. 46. |