*

still remains that of the postmaster-general, and never did vest in the prisoner at all. There was no contract to render it his which required to be rescinded; there was no gift of it to him, for there was no intention to give it to him or to anyone. It was simply a handing over by a pure mistake, and no property passed. We admit that the case is undistinguishable from the one supposed in the argument, of a person handing to a cabman a sovereign by mistake for a shilling; but after carefully weighing the opinions to the contrary, we are decidedly of opinion that the property in the sovereign would not vest in the cabman, and that the question whether the cabman was guilty of larceny or not, would depend upon this, whether he, at the time he took the sovereign, was aware of the mistake and had then the guilty intent, the animus furandi. But it is further urged that if the owner, having power to dispose of the property, intended to part with it, that prevents the crime from being that of larceny, though the intention was inoperative, and no property passed. In almost all the cases on the subject, the property had actually passed, or at least the court thought it had passed; but two cases, R. v. Adams, 2 Russ. C. (Ed. 4) 200 [§ 133], and R. v. Atkinson, 2 East P. C. 673 [§ 133], appear to have been decided on the ground that an intention to pass the property, though inoperative, and known by the prisoner to be inoperative, was enough to prevent the crime from being that of larceny. But we are unable to perceive or understand on what principles the cases can be supported if R. v. Davenport, 2 Russ. C. (Ed. 4) 201, and the others involving the same principle are law. [Bovill, C. J., also

*

*

read an opinion for himself and Keating, J., in part as follows:] * * We are of opinion that neither the clerk to the postmistress, nor the postmistress personally, had any power or authority to part with the £5 note, three sovereigns, the half-sovereign, silver and copper, amounting to £8 16s. 10d., which the clerk placed upon the counter, and which was taken up by the prisoner. In this view the present case appears to be undistinguishable from other cases where, obtaining articles animo furandi from the master of a postoffice, though he had intentionally delivered them over to the prisoner, has been held to be larceny, on the principle that the postmaster had not the property in the articles, or the power to part with the property in them. For instance, the obtaining the mail bags by pretending to be the mail guard, as in R. v. Pearce, 2 East P. C. 603, the obtaining a watch from the postmaster by pretending to be the person for whom it was intended, as in R. v. Kay, Dears. & B. Cr. C. 231; 26 L. J. m. c. 119 (where R. v. Pearce, 2 East P. C. 603, was relied upon in the judgment of the court); and the obtaining letters from the postmaster under pretense of being the servant of the party to whom they were addressed, as in R. v. Jones. 1 Den. Cr. C. 188, and in R. v. Gillings, 1 F. & F. 36, were all held to be larceny. The same principle has been acted upon in other cases, where the person having merely the possession of goods, without any power to part with

the property in them, has delivered them to the prisoner, who has obtained them animo furandi; for instance, such obtaining of a parcel from a carrier's servant by pretending to be the person to whom it was directed, as in R. v. Longstreeth, 1 Mood. Cr. C. 137; or obtaining goods through the misdelivery of them by a carman's servant, through mistake, to a wrong person, who appropriated them animo furandi, as in R. v. Little, 10 Cox Cr. C. 559, were, in like manner, held to amount to larceny. In all these and other similar cases, many of which are collected in 2 Russ. C. 211 to 215, the property was considered to be taken without the consent and against the will of the owner, though the possession was parted with by the voluntary act of the servant, to whom the property had been intrusted for a special purpose. And where property is so taken by the prisoner knowingly, with intent to deprive the owner of it and feloniously to appropriate it to himself, he may, in our opinion, be properly convicted of larceny. The case is very different where the goods are parted with by the owner himself, or by a person having authority to act for him, and where he or such agent intends to part with the property in the goods; for then, although the goods. be obtained by fraud, or forgery, or false pretenses, it is not a taking against the will of the owner, which is necessary in order to constitute larceny. In the present case, not only had the postmistress or her clerk no power or authority to part with the property in this money to the prisoner, but the clerk, in one sense, never intended to part with the £8 16s. 10d. to the person who presented an order for only 10s., and he placed the money on the counter by mistake, though at the time he (by mistake) intended that the prisoner should take it up, and by mistake entered the amount in the prisoner's book. When the money was lying upon the counter the prisoner was aware that he was not entitled to it, and that it could not be, and was not, really intended for him; yet, with a full knowledge on his part of the mistake, he took the money up and carried it away, intending at the time he took it to deprive the owner of all property in it, and feloniously to appropriate it to his own use. There was, therefore, as it seems to us, a wrongful and fraudulent taking and carrying away of the whole of this money by the prisoner, without any color of right, animo furandi, and against the will of the real owner; and for these reasons, and upon the authorities before stated, we think the prisoner was properly convicted of larceny. [Kelly, C. B., read a concurring opinion. ]

**

#

* ** #

[No Possession Given.] PIGOTT, B. I agree in the judgment of the majority of the court, except that I do not adopt the reasons which are there assigned. The case states that the clerk placed the money on the counter. This, no doubt, gave the prisoner the opportunity of taking up the money. If complete possession had been given by the clerk to the prisoner, so that no act of the latter was required to complete it after his discovery of the mistake and his own formed intention to steal it. I

*

should not feel myself at liberty to affirm this conviction. CLEASBY, B. * * The cases establish that, where there is a complete dealing or transaction between the parties for the purpose of passing the property, and so the possession parted with, there is no taking, and the case is out of the catagory of larceny. * The cases show, no doubt, beyond question that where the transaction is of such a nature that the property in the chattel actually passes (though subject to be resumed by reason of fraud or trick), there is no taking, and therefore no larceny. But they do not show the converse: viz., that when the property does not pass there is larceny. On the contrary, they appear to me to show that where there is an intention to part with the property along with the possession, though the fraud is of such a nature as to prevent that intention from operating there is still no larceny.

**

[Effect of Mistake on Intent.] BRAMWELL, B.

it is argued that here there was no intent to part with the property, because the postoffice clerk never intended to give to Middleton what did not belong to him. A fallacy is involved in this way of stating the matter. No doubt the clerk did not intend to do an act of the sort described and give to Middleton what did not belong to him, yet he intended to do the act he did. What he did he did not do involuntarily nor accidentally, but on purpose. See what would follow from such reasoning. A intends to kill B; mistaking C for B, he shoots at C and kills him. According to the argument, he is not guilty of intentional murder; not of B, for he has not killed him; not of C, for he did not intend to kill him. There is authority of a very cogent kind against this argument. A man in the dark gets into bed to a woman, who, erroneously believing him to be her husband, lets him have connection with her. This is no rape, because it is not without her consent, yet she did not intend that a man not her husband should have connection with her. I have noticed this above as another illustration of how the common law refuses to punish an act committed with the consent of the complainant.

*

It is said that here the dominus was invitus; that the dominus was not the postoffice clerk, but the postmaster-general or the queen; and that therefore it was an unauthorized act in the post office clerk, and so a trespass in Middleton invito domino. I think one answer to this is, that the postoffice clerk had authority to decide under what circumstances he would part with the money with which he was intrusted. But I also think that, for the purposes of this question, the lawful possessor of the chattel, having authority to transfer the property, must be considered as the dominus within this rule, at least when acting bona fide. It is unreasonable that a man should be a thief or not, not according to his act and intention, but according to a matter which has nothing to do with them, and of which he has no knowledge. According to this, if I give a cabman a sovereign for a shilling by mistake, he taking it animo furandi, it is no larceny; but if I tell my servant to take a shilling out of my purse, and

he by mistake takes a sovereign, and gives it to the cabman, who takes it animo furandi, the cabman is a thief. It is ludicrous to say that if a man, instead of himself paying, tells his wife to do so, and she gives the sovereign for a shilling, the cabman is guilty of larceny, but not if the husband gives it. It is said that there is no great harm in this; that a thief in mind and act has blundered into a crime. I cannot agree. I think the criminal law ought to be reasonable and intelligible. Certainly a man who had to be hung owing to this distinction might well complain, and it is to be remembered that we must hold that to be law now which would have been law when such a felony was capital. Besides, juries are not infallible, and may make a mistake as to the animus furandi, and so find a man guilty of larceny when there was no theft and no animus furandi. Moreover, R. v. Prince, L. R. 1 C. C. 150 [§ 133], is contrary to this argument, for there the banker's clerks had no authority to pay a forged check if they knew it; they had authority to make a mistake, and so had the postoffice clerk. [Dissenting opinions were also given by Martin, B., and Brett, J.] Conviction affirmed. R. v. Middleton, L. R. 2 C. C. R. 38, 42 L. J. m. c. 73, 28 L. T. 777, 12 Cox C. C. 260, 417, B. 617, Ke. 266, Mi. 794.

#

Compare similar facts on charge of embezzlement : C. v. Hays, § 152.

(Eng. C. C. R., 1887.) Stealing from Slot Machine. On indictment for larceny, it was shown that defendants obtained cigarettes from a penny-in-the slot machine by putting into it metal disks about the size of a penny, while a spy employed by the owner watched to see them do it. LORD COLERIDGE, C. J. In this case a person was indicted for committing a larceny from what is known as an "automatic box," which was so constructed that if you put a penny into it and pushed a knob in accordance with the directions on the box a cigarette was ejected onto a bracket and presented to the giver of the penny. Under these circumstances there is no doubt that the prisoners put in the box a piece of metal which was of no value, but which produced the same effect as the placing a penny in the box produced. A cigarette was ejected, which the prisoners appropriated; and in a case of that class it appears to me there clearly was larceny. The means by which the cigarette was made to come out of the box were fraudulent and the cigarette so made to come out was appropriated. * Pollock, B., Stephen, Mathew, and Wills, JJ., concurred. Conviction affirmed. R. v. Hands, 16 Cox C. C. 188, 56 L. T. 370, 52 J. P. 24, B. 614, C. 383.

*

# **

(Cal. Sup. Ct., 1888.) Feigned Drunk to Catch Thief. Defendant was convicted of grand larceny from the person of F. O. Slanker, and appealed. MCFARLAND, J. The appellant contends that Slanker's testimony, taken as true, does not make out a case of larceny, because it shows that the money was taken with his (Slanker's) consent. The statement of Slanker was substantially

this: He was a constable in the town of Pomona, and, some crimes having been committed in the town, he, for the purpose of detecting the thieves, on the night of the alleged larceny, disguised himself, and feigned drunkenness. After staggering around the streets awhile, he lay down in an alley, and pretended to be in a drunken stupor. Shortly afterwards the appellant and another person came to him, and took from his person three dollars, which he had put in the pocket of his overalls. He was perfectly conscious at the time, and made no resistance, and intended that any thief who tried it should be allowed to take the three dollars, in order that a case of larceny might be made out against him. He had no previous suspicion, however, of the appellant, and was surprised at his participation in the act. And under these circumstances, counsel for appellant contends that the thing done was not larceny, because the money was not taken against the consent of the prosecuting witness. It is no doubt true, as a general proposition, that larceny is not committed when the property is taken with the consent of its owner; but it is difficult in some instances to determine whether certain acts constitute, in law, such "consent," and, under the authorities we do not think that there is such consent where there is mere passive submission on the part of the owner of the goods taken, and no indication that he wishes them taken, and no knowledge by the taker that the owner wishes them taken, and no mutual understanding between the two, and no active measures of inducement employed for the purpose of leading into temptation. From the authorities, and upon principle, we are of opinion that the conduct of the witness Slanker, as detailed by him in his testimony, did not amount to consent in law, and affords no reason why the act of appellant in taking the money (if he did take it in the manner as sworn to by Slanker) was not larceny. [Judgment reversed because the indictment did not allege title to the monev taken was in another than defendant.] P. v. Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. Rep. 238.

So, if the owner being drunk, supposed defendant's purpose was to keep it (a watch) for him till sober. Schafer v. S. (Ala.) 8 So. 670.

(Tex. Ct. of App.. 1887.) Property Exposed to Thief. A defendant charged with the larceny of a horse, which the owner loaned to another, who placed the horse out for the purpose of catching defendant in the theft. cannot set up the consent of the owner in defense, where he did not, directly or through another, suggest the theft to him, or induce him to commit it. Connor v. S., 24 Tex. App. 245, 6 S. W. 138.

Acc. Lowe v. S., 44 Fla. 449, 32 So. 956. See also several cases in § 29.

§ 135. "Carrying Away."

(Eng. C. C. R., 1782.) The Prisoner Moved a Parcel of Goods