are out of the area of felony, and, therefore, the animus furandi is inapplicable, and ought not to be left to the jury. And any conclusion, founded upon the finding of the jury upon a question which ought not to be left to them, must be erroneous, because the foundation is naught. I think the conviction was against law and ought to be quashed.

SECTION 5.-THE ANIMUS FURANDI.

THE FISHERMAN'S CASE.

(York Assizes, 1583. 2 East, P. C. 661.)

A traveler met a fisherman with fish, who refused to sell him any, and he by force, and putting in fear, took away some of his fish, and threw him money much above the value of it; and judgment was respited, because of the doubt whether the intent were felonious on account of the money given."

ANONYMOUS.

(Old Bailey, 1698. 2 East, P. C. 662.)

At the Old Bailey, 1698, before HOLT, C. J., and other judges, it was found that A. assaulted B. on the highway with a felonious intent, and searched the pockets of B. for money, but finding none, A. pulled off the bridle of B.'s horse, and threw that and some bread, which B. had in pannels, about the highway, but did not take anything from B. And resolved, upon conference with all the judges, that this was no robbery, because nothing was taken from B.

REX v. PHILLIPS.

(Gloucester Assizes, 1801. 2 East, P. C. 662.)

Phillips and Strong were indicted for stealing a mare and gelding of John Goulter. It appeared in evidence that the prisoners had gone to the stables of Goulter, who kept an inn at a place called

4 Martin and Bramwell, B. B., and Brett, J., delivered concurring opinions. Compare Mason v. State, 32 Ark. 238 (1877); Beckham v. State (Tex. Cr. App.) 22 S. W. 411 (1893); Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089 (1896). "The better reason seems to be that the particular goods were not taken with a felonious intent; for surely there was a sufficient taking and separation of the goods from the person." 2 East, P. C. 662. Accord: Jordan v. Commonwealth, 25 Grat. (Va.) 943 (1874).

Petty France, in the night of the 26th of February last, opened them, and taken out the horse and mare, the subject of the indictment, and rode on them to Lechlade, about 32 or 33 miles off, where they carried them to different inns, and left them in care of the hostlers, directing them to clean and feed them, and saying that they should return in three hours. In the course of the same day the prisoners were taken at a distance of 14 miles from Lechlade, walking toward Farringdon, in Berkshire, in a direction from Lechlade. The jury, being directed to consider whether the prisoners, when they took the horse and mare, intended to make any further use of them than to ride them, for the purpose of assisting them in 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, and whether they intended to return to Lechlade and make any further use of them, found the prisoners guilty, but added they were of opinion that the prisoners meant merely to ride them to Lechlade and to leave them there, and that they had no intention to return for them, or to make any further use of them. Upon this finding, at a conference first in Easter, and afterwards in Trinity Term, 1801, the judges (dissentiente GROSE, J., et dubitante Lord ALVANLY) held it to be only a trespass, and no felony, for there was no intention in the prisoners to change the property or make it their own, but only to use it for a special purpose-i. e., to save their labor in traveling. The judge who dissented thought the case differed from those first above mentioned, because here there was no intention to return the horses to the owner, but, for aught the prisoners concerned themselves, to deprive him of them. But the rest agreed that it was a question for the jury, and that, if they had found the prisoners guilty generally upon this evidence, the verdict could not have been questioned.

REX v. CABBAGE.

(Court for Crown Cases Reserved, 1815. Russ. & R. 292.)

The prisoner was tried before THOMSON, C. B., at the Lent Assizes for the county of Lancaster, in the year 1815, on an indictment for feloniously stealing, taking, and leading away a gelding, the property of John Camplin.1

It appeared that the gelding in question was missed by the prosecutor from his stables on Monday, the 28th of February, 1815. The stable door, it appeared, had been forced open. The prosecutor went the same day to a coal pit, about a mile from the stable, where he saw the marks of a horse's feet. This pit had been worked out and had a fence round it, to prevent persons from falling in. One of the

1 The second count is omitted.

rails of this fence had been recently knocked off. A man was sent down into the pit, and he brought up a halter, which was proved to be the halter belonging to the gelding. In about three weeks after the finding of the halter, the gelding was drawn up from the coal. pit in the presence of the prosecutor, and who knew it to be his. The horse's forehead was very much bruised, and a bone struck out of it. It appeared that, at the time this gelding was destroyed, a person of the name of Howarth was in custody for having stolen it in August, 1813, and that the prosecutor, Camplin, had recovered his gelding again about five weeks after it was taken. Howarth was about to take his trial for this offense when the gelding was destroyed in the manner stated. The prisoner, Cabbage, was taken into custody on the 27th of March, 1815; and on his apprehension he said that he went in company with Ann Howarth (the wife of Howarth, who was tried for stealing the said gelding) to Camplin's stable door, and that they together forced open the door and brought the horse out. They then went along the road, till they came to the coal pit before mentioned, and there they backed the horse into the pit.

It was objected by the prisoner's counsel that the evidence in this case did not prove a larceny committed of the horse; that the taking appeared not to have been done with intention to convert it to the use of the taker, "animo furandi et lucri causa."

THOMSON, C. B., overruled the objection, and the prisoner was convicted upon the first count of the indictment for stealing the horse. Judgment was passed on him, but the learned Chief Baron respited the execution to take the opinion of the judges as to the propriety of the conviction.

In Easter Term, 1815, the judges met to consider this case, and the majority of the judges held the conviction right. Six of the learned judges, viz., RICHARDS, B., BAYLEY, J., CHAMBRE, J., THOMSON, C. B., GIBBS, C. J., and Lord ELLEN BOROUGH, held it not essential to constitute the offense of larceny that the taking should be lucri causa. They thought a taking fraudulently, with an intent wholly to deprive the owner of the property, sufficient; but some of the six learned judges thought that in this case the object of protecting Howarth by the destruction of this animal might be deemed a benefit or lucri causa. DALLAS, J., WOOD, B., GRAHAM, B., LE BLANC, J., and HEAth, J., thought the conviction wrong.2

2 Accord: State v. Brown, 3 Strob. (S. C.) 508 (1849); People v. Juarez, 28 Cal. 380 (1865); Stegall v. State, 32 Tex. Cr. R. 100, 22 S. W. 146, 40 Am. St. Rep. 761 (1893); Mitchell v. Territory, 7 Okl. 527, 54 Pac. 782 (1898); State v. McKee, 17 Utah, 370, 53 Utah, 733 (1898). Contra: People v. Woodward, 31 Hun (N. Y.) 57 (1883); Pence v. State, 110 Ind. 95, 10 N. E 919 (1886).

REX v. WRIGHT.

(Old Bailey, 1828. 9 Car. & P. 554, note.)

On an indictment for larceny by a servant in stealing his master's plate, it appeared that, after the plate in question was missed, but before complaint made to the magistrate, the prisoner replaced it; and it was proved by a pawnbroker that the plate had been pawned by the prisoner, who had redeemed it; and the pawnbroker also stated that the prisoner had, on previous occasions, pawned plate and afterwards redeemed it.

HULLOCK, B. (HOLROYD, J., being present), left it to the jury to say whether the prisoner took the plate with the intent to steal it, or whether he merely took it to raise money on it for a time, and then return it; for that in the latter case it was no larceny. The jury acquitted the prisoner.1

REX v. WEBB.

(Court for Crown Cases Reserved, 1835. 1 Moody, C. C. 431.)

The prisoners were tried before Mr. Justice PATTESON, at the Spring Assizes for Cornwall, 1835, and found guilty.

The indictment charged them with stealing 100 pounds weight of copper ore, the property of Stephen Davey and others. It appeared in evidence that Stephen Davey and others were the adventurers in a mine called the Consolidated Mine.

The prisoners and two others were tributers in their mine, but not adventurers. The prosecutors of the indictment were Cornish, and three others, who were also tributers in the mine, but not adventurers. It appeared that tributers (generally in companies of four) take from the adventurers a certain number of yards in the mine, called a pitch, from which they dig out ore, and throw into a heap or pile in some level, whence they convey it along the level to a shaft, and so up to the surface. There it is taken by the adventurers, and the tributers do not interfere further.

The tributers are paid according to their agreement, so much in the pound on the selling price of the ore. Where it is very good, they receive a smaller sum than where it is inferior, because the quantity of labor (which is what they contribute) produces a more valuable

1 In Reg. v. Phetheon, 9 Car. & P. 552 (1840), Gurney, B., said: "I think that if this doctrine of an intention to redeem property is to prevail, courts of justice will be of very little use. A more glorious doctrine for thieves it would be difficult to discover."

In Reg. v. Trebilcock, 7 Cox, C. C. 408 (1858), on similar facts, the jury found the prisoner guilty, but recommended him to mercy, believing that he intended ultimately to return the property. Held, on a case reserved, that the verdict of guilty was consistent with the ground of their recommendation. See, also, Fields v. State, 6 Cold. (Tenn.) 524 (1869).

commodity in the one case than the other. The prosecutors' pitch contained better ore than the prisoners'. The prosecutors received 2s. 4d. in the pound from the adventurers; the prisoners, 5s. 6d.

It was proved satisfactorily that the prisoners had taken a large quantity of ore from the prosecutors' pile and added it to their own. Halcomb, for the prisoners, contended, secondly,' that by taking ore out of one pile and putting it in another the prisoners did not steal from the adventurers, for both piles remain in possession of the adventurers, if the tributers be but servants; and if the tributers be tenants in common, still, as both piles were intended to come, and ultimately would come, into the hands of the adventurers, there could be no stealing from them.

Rogers, for the prosecutors, answered that the adventurers were cheated, for they would have to pay 5s. 6d. in the pound on the ore removed to the prisoners' pile, whereas, if it had remained in the prosecutors' pile, they would pay only 2s. 4d. in the pound, and, besides that, the unauthorized removal of the ore from the prosecutors' pile by the prisoners, with a fraudulent intention to appropriate it to their own benefit, constituted a larceny the moment it was removed, which could not be cured by returning it any way to the adventurers.

The learned judge was of opinion that the property was correctly laid, and a larceny proved, but reserved the latter point, and requested the opinion of the judges on both points.

In Easter Term, 1835, this case was considered by Lord DEnman, C. J., TINDAL, C. J., PARK, J., LITTLEDALE, J., GASELEE, J., BOSANQUET, J., ALDERSON, B., WILLIAMS, J., PATTESON, J., and they held the conviction wrong; PATTESON, J., dissentiente.2

REGINA v. RICHARDS.

(Monmouth Assizes, 1844. 1 Car. & K. 532.)

Larceny. The prisoner was indicted for stealing iron, the property of William Williams and others, his masters.

The iron alleged to have been stolen was an iron axle of a tram wagon, and it was proved that the prisoner was employed as a puddler by the prosecutors, who were partners in an iron company, and that the puddlers employed by the company were in the habit of receiving a certain quantity of pig iron, which they were to put into the furnaces, and they were paid for their work according to the weight of the iron drawn out of the furnace and formed into puddle bars. The prisoner was detected by the foreman of the works in putting an iron axle, be

1 Part of the case, dealing with another question, is omitted.

2 The conviction was held wrong on the second point.

Accord: Reg. v. Holloway, 3 Cox, C. C. 241 (1849); Reg. v. Poole, Dears. & B. 345 (1857). Cf. Rex v. Manning, Dears. 21 (1852).