pocketbook remained about the person of the owner; and the majority of the judges held that it was not.

ALDERSON, B. How do you distinguish this case from Rex v. Lapier, 1 Leach, C. C. 60, in which the earring was torn from a lady's ear and fell upon her curl?

Parry. There the forcing it from her ear was a severance from her person, but I contend that in this case there was no actual severance. There is a case of Rex v. Farrell, 1 Leach, C. C. 362, where it appeared that the prisoner stopped the prosecutor as he was carrying a feather bed on his shoulders, and told him to lay it down or he would shoot him, and the prosecutor accordingly laid the bed on the ground, but the prisoner was apprehended before he could remove it from the spot where it lay; and the judges were of opinion that the offense of robbery was not completed. All the cases show the wide distinction between a simple larceny and a stealing from the person. The distinction is one which ought to be considered strictly in favor of a prisoner, and, although this case may be on the very confines of a severance, I contend that no actual severance ever took place.

Payne, for the crown, was not called upon.

JERVIS, C. J. We all are of opinion that the conviction was right. This case is in no respect like that mentioned by Lord Hale, where the prisoner took the purse attached by its strings to the keys, which entangled in the pocket of the prosecutor. In that case there was at no moment the slightest severance from the person; but this is precisely similar to Lapier's Case, in which the jewel was torn from the ear of the prosecutrix and dropped amongst her curls. The ear in Lapier's Case is like the buttonhole in this, and the curl is like the button below. The watch was no doubt temporarily, though but for one moment, in the possession of the prisoner. In Thompson's Case there seems to have been some confusion in the use of the expression "about the person." The words of the act are "from the person," and, with submission to the majority of the judges who held the asportation in that case not to be sufficient, I think the minority were right. The judges in that case may have thought that the outer coat which covered the pocket formed a protection to the pocketbook; but we must not fritter away the law by refining upon nice distinctions in a way to prevent our decisions from being consistent with common sense.

ALDERSON, B. To constitute the offense there must be a removal of the property from the person; but a hair's breadth will do. The other learned judges concurred.

Conviction confirmed.1

1 Accord: As to simple larceny, Eckels v. State, 20 Ohio St. 508 (1870); Harrison v. People, 50 N. Y. 518, 10 Am. Rep. 517 (1872); State v. Chambers. 22 W. Va. 779, 46 Am. Rep. 550 (1883); Files v. State, 36 Tex. Cr. R. 206, 36 S. W. 93 (1896).

(Cambridgeshire Assizes, 1848. 3 Cox, C. C. 67.)

The indictment charged the prisoner with stealing five pints of porter, the property of the Eastern Counties Railway Company, at Cambridge. The evidence showed that the prisoner had made a hole in the barrel through which the porter flowed into a can on the ground, and that a witness rushed in and snatched up the can while the porter was running into it in the presence of the prisoner. At the close of the case for the prosecution

Naylor, for the prisoner, submitted that there was no sufficient asportavit; there was a stealing and taking, but no carrying away. R. v. Cherry, 2 East, P. C. 556. So in a case at Cambridge, where a man indicted for horse-stealing had his hand on the halter for the purpose of leading him away, the judge held that not to be a sufficient asportavit. If the prisoner were answering a charge of malicious injury to property, the answer would be that there was a can there for the purpose of carrying the beer away.

COLTMAN, J. I think there was a sufficient asportavit of what was run out, but I will reserve the point.

Wells, for the prosecution.
Verdict-Guilty.

REGINA v. WHITE.

(Court of Criminal Appeal, 1853. 6 Cox, C. C. 213.)

The prisoner was indicted at the last Quarter Sessions for Berwick-upon-Tweed, for stealing 5,000 cubic feet of carburetted hydrogen gas, of the goods, chattels, and property of Robert Oswald and others. Mr. Oswald was a partner in the Berwick Gas Company, and the prisoner, a householder in Berwick, had contracted with the company for the supply of his house with gas, to be paid for by meter. The meter, which was hired by the prisoner of the company, was connected with an entrance pipe through which it received the gas from the company's main in the street, and an exit pipe through which the gas was conveyed to the burners. The prisoner had the control of the stopcock at the meter, by which the gas was admitted into it through the entrance pipe, and he only paid the company, and he had only to pay them, for such quantity of gas as appeared by the index of the meter to have passed through it. The entrance and exit pipes were the property of the prisoner. The prisoner, to avoid paying for the full quantity of gas consumed, and without the consent or knowledge of the company, had caused to be inserted a connecting pipe with a stopcock upon it into the entrance and exit pipes, and extending between them; and,

the entrance pipe being charged with the gas of the company, he shut the stopcock at the meter, so that gas could not pass into it, and opened the stopcock in the connecting pipe, when a portion of the gas ascended through the connecting pipe into the exit pipe, and from thence to the burners, and was consumed there, and the gas continued so to ascend and be consumed until by shutting the stopcock in the connecting pipe the supply was cut off. This operation was proved to have taken place at the time specified by the prosecutor. It was contended for the prisoner that, the entrance pipe, into which the gas passed from the main, being the property of the prisoner, he was in lawful possession of the gas by the consent of the company as soon as it had been let into his entrance pipe out of their main, and that his diverting the gas in its course to the meter was not an act of larceny. I told the jury that if they were of opinion, on the evidence, that the entrance pipe was used by the company for the conveyance of the gas by the permission of the pris oner, but that he had not by his contract any interest in the gas or right of control over it until it passed through the meter, his property in the pipe was no answer to the charge, that there was nothing in the nature of gas to prevent its being the subject of larceny, and that, the stopcock on the connecting pipe being opened by the prisoner, and a portion of the gas being propelled through it by the necessary action of the atmosphere, and consumed at the burners, there was a sufficient severance of that portion from the volume of gas in the entrance pipe to constitute an asportavit by the prisoner, and that if the gas was so abstracted with a fraudulent intent he was guilty of larceny. The jury answered the questions put to them in the affirmative, and found the prisoner guilty. I postponed judgment, taking recognizance of bail according to the statute for the appearance of the prisoner at the next sessions to receive judgment if this court should be of opinion that he was rightly convicted.1

Lord CAMPBELL, C. J. I think that the conviction ought to be affirmed, and that the direction of the learned Recorder was most accurate. Gas is not less a subject of larceny than wine or oil; but is there here a felonious asportation? No one who looks at the facts can doubt it. The gas, no doubt, is supplied to a vessel which is the property of the prisoner; but the gas was still in the possession of the company. Then, being in the possession of the company, and their property, it is taken away animo furandi by the prisoner. If the property remains in the company until it has passed the meter, which is found, to take it before it has passed the meter constitutes an asportation. If the asportation was with a fraudulent intent, and this the jury also have found, it was larceny. As to the act of Parliament, the Legislature has, for convenience

1 The argument of Ballantine for the prisoner is omitted.

sake, added a specific penalty; but that cannot reduce the offense to a lower degree. My Brother MAULE has, however, given a probable explanation of that provision.

PARKE, B., MAULE, J., TALFOURD, J., and MARTIN, B., concurred. Conviction affirmed.

STATE v. ALEXANDER,

(Supreme Court of North Carolina, 1876. 74 N. C. 232.)

BYNUM, J. The defendant was indicted for stealing a hog running at large in the "range." The hog was found dead, having been shot. Its ears had been cut off, and one of its hams skinned, but the skin had not been severed from the animal; no part being cut off except the ears. There was no evidence that the hog had been killed elsewhere than where found, or had been removed from the spot where it had been killed. There was evidence that the defendant shot the hog and did the skinning. His honor charged the jury that if the defendant shot and skinned the hog, as alleged, and had it under his control, with the intent to steal, there was in law a sufficient asportation, and he was guilty. There is error.

To complete the crime of larceny, it is not sufficient that the defendant had the control of the article-that is, had the power to remove it; but there must be an asportation of the thing alleged to have been stolen. It is true a very slight asportation will be deemed sufficient, yet there must be some removal to complete the offense. The case here shows that there was no removal of the hog, but that it remained in situ, as it had been shot down.1 In State v. Jones, 65 N. C. 395, it was held that the turning of a barrel of turpentine, which was standing upon its head, over upon its side, with a felonious intent, was not such an asportation as constituted larceny. So in State v. Butler, 65 N. C. 309, which is a case almost identical with this, it was held that an indictment at common law for stealing a cow is not supported by proof that the cow was shot down and her ears cut off by the defendant with a felonious intent, because there was no asportation of the cow, the thing charged to have been

1 Accord: Rex v. Williams, 1 Moody, 107 (1825); State v. Seagler, 1 Rich. Law (S. C.) 30, 42 Am. Dec. 404 (1844); People v. Murphy, 47 Cal. 103 (1873); Williams v. State, 63 Miss. 58 (1885); Molton v. State, 105 Ala. 18, 16 South. 795, 53 Am. St. Rep. 97 (1894).

Compare Lundy v. State, 60 Ga. 143 (1878); Kemp v. State, 89 Ala. 52, 7 South. 413 (1889); State v. Gilbert, 68 Vt. 188, 34 Atl. 697 (1896); Wilburn v. Territory, 10 N. M. 402, 62 Pac. 968 (1900).

By statute, in Texas, asportation is not a necessary element of larceny. "It is only necessary that the property stolen should have gone into the possession of the thief. It need not be carried away in order to accomplish the offense." Pen. Code, art. 880. See Clemmons v. State, 39 Tex. Cr. R. 279, 45 S. W. 911, 73 Am. St. Rep. 923 (1898).

stolen. These cases and others of our own, as well as English, are decisive. State v. Jackson, 65 N. C. 305; Roscoe, 570; 2 Bish. Cr. Law, 804; 2 East, P. C., 556.

PER CURIAM. Judgment reversed.

CUMMINGS v. COMMONWEALTH.

(Court of Appeals of Kentucky, 1883. 5 Ky. Law Rep. 200.)

Opinion of the court by Chief Justice HARGIS.

The appellant, Cummings, according to the evidence, told Sweet he wished to sell him a sow and pigs, and, after agreement on the price went to where a sow and pigs were lying down on the commons and pointed them out as his, and Sweet paid him $7 in money for them and then drove them off. The sow and pigs belonged to John Flauher, who lived near by.

The appellant seems to have been out of money, and resorted to this means of obtaining some to supply his wants, and then proceeded to the fair.

Having been convicted of the offense of larceny or hog stealing under the statute, the appellant has appealed, and his counsel contend that his offense was not larceny, because there was no asportation by him; but it was obtaining money by false pretenses, if anything.

He was not indicted for obtaining the $7 for the sow and pigs, but for stealing the sow and pigs. Whether his acts constituted both offenses of larceny of the hogs and obtaining money by false pretenses, for which he might be punished, need not be determined, as there has been no attempt to try him twice for the same acts.

The owner of the sow and pigs never parted with the possession or the property in them. The asportation was by the hand or physical act of Sweet; but the act of felonious taking was that of the appellant committed through Sweet, who was his instrument in committing the trespass upon the property of Flauher.

East, Hale, and Hawkins, who are approved by Archbold, say that if the taking be by the hand of another it is the same as if by the hand of the thief himself. For instance, if the thief procure a child

2 "The indictment charges that the prisoners did 'take and carry away' the wheel. To take an article signifies merely to lay hold of, grasp, or seize it, with the hands or otherwise. Webster. With this understanding of the meaning of the term, can it be reasonably said that the act of the prisoners in laying hold of, and with a sledge breaking the wheel in pieces, animo furandi, was not a taking of it within the contemplation of the criminal law? We think not. As to the asportation or carrying away of the wheel, we think such removal might be properly inferred from the seizure of the Iwheel, the mode of breaking it, and the subsequent disposition made of its parts." Lake, C. J., in Gettinger v. State, 13 Neb. 308, 14 N. W. 403 (1882). 3 Part of the opinion, relating to another point, is omitted.