94. Larceny, at common law, is the taking and removing, by

trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership therein.1

95. To constitute the crime

(a) The thing taken must be the personal property of another, and therefore

(1) It must be a thing which the law regards as prop

erty.

12 Bish. New Cr. Law, § 758. Mr. Bishop adds: "And perhaps it should be added, for the sake of some advantage to the trespasser -a question on which the decisions are not harmonious." The following are some of the older definitions: "Larceny, by the common law, is the felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another." 3 Co. Inst. 107. "The felonious taking and carrying away of the personal goods of another." 4 Bl. Comm. 229. "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, withCLARK CR.L.3D ED.-20

(2) It must be personal, and not real, property.

(3) It must be generally or specially owned by an

other.

(b) It must be taken

(1) From the actual or constructive possession of the

owner.

(2) By trespass.

(c) It must be carried away from the place it occupies, but any removal, however slight, is sufficient.

(d) The intent

(1) Must be to deprive the owner permanently of his

property.

(2) It must exist at the time of the taking.
(3) In most jurisdictions the taking need not be lucri
causa; that is, for the advantage of the thief.
It need never be for his pecuniary advantage.

96. Larceny at common law was divided into

(a) Grand larceny, and

(b) Petit larceny, according to the value of the property stolen, but the distinction has been abolished in many jurisdictions.

97. Larceny, both at common law and by statute, is either (a) Simple, that is, where there are no aggravating cir

cumstances; or

out the consent of the owner." 2 East, P. C. 553. "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: [Quoting East's definition above.] 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.

(b) Compound, that is, where there are such circum

stances.

98. Larceny is a felony at common law.

Property That may be Stolen

4

As larceny is the taking of the property of another, it can only be committed by taking something which the law regards as property, and deems capable of being owned. For this reason seaweed, not reduced to possession, treasure trove and wreck, not seized, are said not to be the subject of larceny. It has often been said that the dead body of a human being cannot be stolen, either because it is not property or because it can have no owner. But now that dead bodies, or portions of bodies, are bequeathed to scientific associations for experimentation, and even bought and sold, there seems no reason why they should not be subject to the law of larceny. There is no reason why one who rifles a museum of the mummy of an Egyptian queen or the skull of a famous scientist should not be guilty of larceny. Even the old authorities would hold him guilty of larceny in taking the grave clothes with which the dead body was covered."

2 Reg. v. Clinton, 4 Ir. Com. L. 6.

$1 Hale, P. C. 510. The reason given why treasure trove and wreck are not the subjects of larceny is that no one hath any determinate property in them. 1 Hale, P. C. 510. East points out that the fact that the owner is unknown does not prevent the taking being larceny, for lost goods may be stolen (post, p. 328), and intimates what should be the true rule, viz., that only where the circumstances show that the true owner has abandoned the wreck or treasure trove is a conviction of larceny impossible. 2 East, P. C. 606. An estray is the subject of larceny. Crockford v. State, 73 Neb. 1, 102 N. W. 70, 119 Am. St. Rep. 876. A constitutional provision that timber on a forest reserve shall not be sold does not take such timber out of the category of "property," or deprive it of value. It is still the subject of larceny. People v. Gaylord, 139 App. Div. 814, 124 N. Y. Supp. 517.

42 East, P. C. 652.

5 Hayne's Case, 12 Coke, 113. In this case it was said the property

It has also been held that a coffin in which a body is buried is the subject of larceny."

Animals feræ naturæ cannot be the subject of larceny at common law, for the law does not regard them as property having an owner; but once reclaimed, if capable of being reclaimed, or reduced into possession, if valuable when killed-as animals fit for food or valuable for their fur-they become property." Thus, deer and other game in the forest, or fish in an open river, cannot be stolen; but if they are killed or caught, or confined in a private park or pond, they become property and the subject of larceny.

in the grave clothes was in the person who owned them before the burial.

• State v. Doepke, 68 Mo. 208, 30 Am. Rep. 785.

7 Reg. v. Shickle, 11 Cox, Cr. Cas. 189. Bees in a hive, State v. Murphy, 8 Blackf. (Ind.) 498. Pea fowls, Anon., Y. B. 19 Hen. VIII. 2, pl. 11; Com. v. Beaman, 8 Gray (Mass.) 497. Pigeons, Reg. v. Cheafor, 5 Cox, Cr. Cas. 367. Doves in a dovecot or nest under care of owner, Com. v. Chace, 9 Pick. (Mass.) 15, 19 Am. Dec. 348. Tame bird, HAYWOOD v. STATE, 41 Ark. 479, Mikell Illus. Cas. Criminal Law, 160; Oysters planted in public waters, State v. Taylor, 27 N. J. Law, 117, 72 Am. Dec. 347. But see State v. Johnson, 80 Wash. 522, 141 Pac. 1040. Otter killed, and valuable for fur, State v. House, 65 N. C. 315, 6 Am. Rep. 744. Hawks were the subject of larceny. "Of some things that be feræ naturæ, being reclaimed, felony may be committed in respect of their noble and generous nature and courage, serving of vitæ solatium of princes and noble and generous persons to make them fitter for great employments, as all kinds of falcons and other hawks, if the party that steals them know they be reclaimed." 3 Co. Inst. 109. The older books laid down the rule that no wild animals or birds, except falcons or hawks, were subject of larceny, even when reclaimed, unless fit for food. In HAYWOOD v. STATE, supra, the court repudiated this test, and held that a tame mocking bird was the subject of larceny, and in State v. Taylor, supra, that an otter was the subject of the offense.

8 Reg. v. Townley, 12 Cox, Cr. Cas. 59. Animals feræ naturæ may be the subject of larceny, when confined in a man's private inclosure, although they are not absolutely secured against the possibility of escape, State v. Shaw, 67 Ohio St. 157, 65 N. E. 875, 60 L. R. A. 481.

Animals feræ naturæ, if killed on another's land, and allowed to lie there, would, if fit for food, become the property of the owner of the land. If, therefore, a poacher kills a wild animal or bird on another's preserves, and, leaving it on the premises, abandons it, and afterwards returns and carries it off, he commits larceny; but it is otherwise if he carries it off as soon as he kills it, so that the killing and carrying away may be regarded as one and the same act.' The same rule applies here as in case of fixtures severed from the freehold, which we shall presently discuss.10 At common law, certain animals, such as dogs, cats, ferrets, and the like, were said to be of so base a nature as to be incapable of becoming property, and cannot be stolen; 11 but all of these rules are greatly modified by statute, both in England and with us. Dogs, it has been held, being made taxable by statute, become property, and therefore the subject of larceny.12 It is

9 Reg. v. Townley, 12 Cox, Cr. Cas. 59; Reg. v. Petch, 14 Cox, Cr. Cas. 116. Post, p. 313. In Reg. v. Townley, supra, the defendant killed a large number of rabbits on the land of another. He tied them together, hid them in a ditch, went off the land, returned, and took them out of the ditch. It was held that as he had no intent to abandon the rabbits, but was using the land of the owner (the ditch) as a place of deposit for his own convenience, the killing and carrying away must be regarded as one continuous act.

10 See post, p. 312, notes 24-32.

11 4 Bl. Comm. 236; Reg. v. Robinson, Bell, Cr. Cas. 34; Rex v. Searing, Russ. & R. 350 (ferret); Ward v. State, 48 Ala. 161, 17 Am. Rep. 31 (dog); Warren v. State, 1 G. Greene (Iowa) 106, 111 (coon); Norton v. Ladd, 5 N. H. 203, 20 Am. Dec. 573; State v. Lymus, 26 Ohio St. 400, 20 Am. Rep. 772 (dog); State v. Holder, 81 N. C. 527, 31 Am. Rep. 517 (dog); Findlay v. Bear, 8 Serg. & R. (Pa.) 571 (dog).

12 Com. v. Hazlewood, 84 Ky. 681, 2 S. W. 489; People v. Maloney, 1 Parker, Cr. R. (N. Y.) 593; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386; Mullaly v. People, 86 N. Y. 365; State v. Brown, 9 Baxt. (Tenn.) 53, 40 Am. Rep. 81; Harrington v. Mills, 11 Kan. 480, 15 Am. Rep. 355. And see Hurley v. State, 30 Tex. App. 333, 17 S. W. 455, 28 Am. St. Rep. 916. Contra, see cases cited in preceding note.