CHAPTER XIII.

LARCENY.

SECTION 1.-PROPERTY THE SUBJECT OF LARCENY.

It is to be known that theft is, according to the laws, the fraudulent handling of another person's property with the intention of stealing, against the will of the lord whose property it is. I say with the intention, for without the intention of stealing it is not committed. Bracton, f. 134b.

The definitions of larceny are none of them complete. Mr. East's is the most so; but that wants some little explanation. His definition is "the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner." This is defective in not stating what the definition of "felonious" in this definition is. It may be explained to mean that there is no color of right or excuse for the act, and the intent must be to deprive the owner, not temporarily, but permanently, of his property.

Parke, B., in Reg. v. Holloway, 2 Car. & K. 946 (1849).

ANONYMOUS.

(King's Bench, 1478. Y. B. 18 Edw. IV, 8, pl. 7.)

A man was indicted in the King's Bench for having, on Monday next before the Feast of the Purification of the Blessed Virgin Mary, 10 Edw. IV, at C., in the county of M., with force and arms broken into a dove cote and feloniously taken twenty young pigeons. And this was adjudged a good indictment, notwithstanding the exception

* because the property in the said pigeons would be at all times in him to whom the dove cote belonged, inasmuch as they could not go out, but he could take them at any time at his pleasure; but it is otherwise if he were indicted for the taking of old pigeons, because the law does not adjudge the property in them in any one, for they go about the country and he cannot take them at pleasure; and, there fore, if he were indicted for this the indictment is void. Also, if he be indicted for taking pike or tenches out of a pond or trunk feloniously the indictment is good causa qua supra, otherwise is it if they

be taken in the river; the law is the same as to young goshawks which cannot go or fly, hatched in my own park, it is felony, but it is otherwise as to other goshawks; and so note the difference when the property is mine at my pleasure and when it is not."

REX v. SEARING.

(Court for Crown Cases Reserved, 1818. Russ. & R. 350.)

The prisoner was tried before Mr. Baron Wood, at the Lent Assizes for Hertfordshire, in the year 1818, for larceny, in stealing "five live tame ferrets confined in a certain hutch," of the price of 15 shillings, the property of Daniel Flower.

The jury found the prisoner guilty; but on the authority of 2 East, P. C. 614, where it is said that ferrets (among other things) are considered of so base a nature that no larceny can be committed of them, the learned judge respited the judgment until the opinion of the judges could be taken thereon.

It appeared in evidence that ferrets are valuable animals, and those in question were sold by the prisoners for 9 shillings.

In Easter Term, 1818, the judges met and considered this case. They were of opinion that ferrets (though tame and salable) could not be the subject of larceny, and that the judgment ought to be arrested.

1 Accord: Rex v. Hudson, 2 East, P. C. 611 (1781); State v. Krider, 78 N. C. 481 (1878).

2 "These pheasants, having been hatched by hens, and reared in a coop, were tame pheasants at the time they were taken, whatever might have been their destiny afterwards. Being thus, the prosecutor had such a property in them that they would become the subject of larceny." Channell, B., in Reg. v. Cory, 10 Cox, C. C. 23 (1864). Accord: Reg. v. Shickle, 11 Cox, C. C. 189 (1868).

3 "Under decisions of English and American courts, made upon the commonlaw definition of larceny, Mr. Bishop classes the following animals, when reclaimed, as the subjects of the offense: Pigeons, doves, hares, conies, deer, swans, wild boars, cranes, pheasants, partridges and fish suitable for food, including oysters. To which might be safely added wild turkeys, geese, ducks, etc., when reclaimed. Of those animals of which there can be no larceny, though reclaimed, he puts down the following: Dogs, cats, bears, foxes, apes, monkeys, polecats, ferrets, squirrels, parrots, singing birds, martins, and coons. In the South, squirrels are in common use as food animals, and the hunters of all climates regard bears as good food. Iowa is credited with the decision (Warren v. State, 1 G. Greene, 106) that coons are unfit for food, and therefore, by the common law, not the subject of larceny, when reclaimed. Among the colored people of the South the coon, when fat in the fall and winter, is regarded as a luxury, and the Iowa decision would not be regarded by them as sound law or good taste. On the whole subject, see 2 Bishop on Criminal Law (6th Ed.) §§ 757, 781, and notes." English, C. J., in Haywood v. State, 41 Ark. 479 (1883). "Hales, J.,

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is said (Stanford, p. 275) to have 'thought it no felony to take a diamond, rubie, or other such stone (not set in gold or otherwise) because they be not of price with all men, howsoever some do hold them both dear and precious.'" 3 Steph. Hist. Cr. L. 143.

CARVER v. PIERCE.

(King's Bench, 1648. Style, 66.)

Carver brings an action upon the case against Pierce for speaking these words of him, Thou art a thief, for thou hast stolen my dung; and hath a verdict. The defendant moved in arrest of judgment, that the words were not actionable: for it is not certain whether the dung be a chattel, or part of the freehold, and if so, it cannot be theft to take it, but a trespass, and then the action will not lie.

BACON, Justice. Dung is a chattel and may be stolen.

But ROLL, Justice, answered: Dung may be a chattel, and it may not be a chattel; for a heap of dung is a chattel, but if it be spread upon the land it is not, and said, the word thief here is actionable alone, and there are no subsequent words to mitigate the former words, for the stealing of dung is felony if it be a chattel.

BACON, Justice, said: It doth not appear in this case of what value the dung was, and how shall it be known whether it be felony or petty larceny.

To this ROLL answered: The words are scandalous notwithstanding, and actionable, though the stealing of the dung be not felony. The rule was to move it again Tuesday next.

REX v. WESTBEER.

(King's Bench, 1740. 1 Leach [4th Ed.] 12.)

At the Old Bailey January Session, 1739, Thomas Westbeer was indicted before Lord Chief Baron COмYNS, and Mr. Justice CHAPPLE, for stealing a parchment writing, purporting to be a commission, dated in the reign of Queen Anne, impowering the commissioners therein named (pursuant to an order which had been previously made in chancery, in a cause between Lord Chesterfield and John Cantrell and others) to enter and ascertain the boundaries of the manors of Bradbury and Hartsherne, and to certify how high the water of Furnace Pool ought to be kept, etc. And also one other parchment writing, purporting to be a return made to the said commission. The property was laid to be the goods of our sovereign lord the king, and of the value of four shillings.1

THE COURT gave no opinion, whether these were properly laid to be the goods of the king, nor whether the law as to this case was altered by 8 Hen. VI, c. 12; but they were unanimously of opinion that these parchment writings concerned the realty, and that therefore the prisoner was not guilty of the felony charged in the indictment.2

1 Part of this case is omitted.

2 In Select Pleas of the Crown (Sel. Soc.) pl. 82, is reported for the year 1200 an appeal for robbery of the title deeds to land.

HOSKINS v. TARRENCE.

(Supreme Court of Indiana, 1840. 5 Blackf. 417, 35 Am. Dec. 129.)

DEWEY, J. This was an action of slander. The words laid in the declaration to have been spoken by the defendant of the plaintiff, among others, are: "He broke into my room and stole the key." Plea, not guilty. Verdict and judgment for plaintiff. There was evidence that the defendant said of the plaintiff: "He broke into a room of my house, and stole the key out of the door." The defendant moved the court to instruct the jury "that the key in the lock of the door of a house, and belonging thereto, is part of the realty, and not the subject of larceny, unless the same is first severed from the realty by one act, and then stolen by another and distinct act." The court refused the charge.1

It is true that the keys of a house follow the inheritance; and the writers who lay down this doctrine make no distinction between keys in the lock and those in the pockets of their owners. They are, nevertheless, not fixtures, but personal property, which, from a rule of law founded on public convenience, like title papers, go with the land. And as no decision, so far as we know, has as yet ranked them among the articles upon which larceny cannot be committed, and as we see no good reason for carrying the doctrine of exemption farther than it has already gone, we feel at liberty, upon the authority of Rex v. Hedges, supra, as well as on principle, to decide that as "personal goods" they are within the purview of our statute relative to crime. and punishment, and are the subjects of theft. Rev. St. 1838, p. 207. The circuit court committed no error in refusing the instruction to the jury which was asked for by the defendant.

PER CURIAM. The judgment is affirmed, with 1 per cent. damages and costs.

REGINA v. WATTS.

(Court of Criminal Appeal, 1854. 6 Cox, C. C. 304.)

The prisoner, William Mote Watts, was indicted at the Quarter Sessions for the North Riding of Yorkshire, on the 2d of June, 1853, for stealing on the 3d day of May, 1853, a piece of paper, the property of the prosecutor, Francis Patteson, and was convicted. The piece of paper found to have been stolen had written upon it, when taken by the prisoner, as alleged in the indictment, an agreement between the prosecutor and the prisoner, signed by each of them. The agreement could not be produced, but secondary evidence of it was received, from which it appeared that the prisoner contracted thereby to build two cottages for the prosecutor, for a sum specified, accord1 Part of this case is omitted.

ing to certain plans and specifications, and the latter agreed to pay two installments, being part of the price agreed on, at certain stages of the work, and the remainder on completion; and it was stipulated that any alterations that might take place during the progress of the building should not affect the contract, but should be decided upon by the employer and employed, previous to such alterations taking place. Under this instrument the work was commenced and continued. At the time when it was stolen by the prisoner, as alleged, the work was going on under it. Nevertheless it was proved at the trial that when the agreement was stolen the prisoner had been paid all the money which he was entitled to under it, although there was money owing to him for extras and alterations. The agreement was unstamped. The counsel for the prisoner objected, at the close of the case for the prosecution, that from the evidence it was clear that, at the time the piece of paper referred to in the indictment was taken by the prisoner, it was, in reality, a subsisting and valid agreement, and therefore not the subject of larceny (as a piece of paper only) at-common law. The question for the opinion of the court is whether, under the circumstances above stated, the prisoner could be lawfully convicted of feloniously stealing a piece of paper, as charged in the indictment. No judgment was passed on the prisoner, and he was discharged on recognizance of bail to appear and receive judgment when required.

This case was before the court on the 12th November, 1853, and was sent back to be restated, and an alteration was made in it to the effect that the agreement was one which required a stamp.1

Price, for the prosecution. First, this was not a chose in action at all, because whatever was due under the agreement had been paid. 2 Bl. 397.

CROMPTON, J. But the work was still going on.

MARTIN, B. And an action might be maintained upon it for not building according to the specification.

Price. Then the want of stamp prevents it from being a chose in action.

MAULE, J. Strictly speaking, a chose in action is an incorporeal right, and, of course, therefore, cannot be the subject of larceny; but the rule means that those instruments which are the evidence of a chose in action are not the subject of larceny,

Price. When the objection is taken at nisi prius, it is enough to say that the proper evidence of the contract is not produced, Jardine v. Payne, 1 B. & Ad. 670. It is unnecessary to say that the unstamped paper is not a chose in action; but in truth it is not, because the stamp laws prevent any court from regarding it as an available security. If

1 The argument of Bliss for the prisoner and the concurring opinions of Alderson, B., and Crompton, Coleridge, Maule, and Platt, JJ., and the dissenting opinions of Parke, B., are omitted. Wightman, Cresswell, and Williams, JJ., and Martin, B., concurred with the Chief Justice.