planted by Hildreth were unlawfully taken by the defendant, with the intent to steal them; if the oysters so planted could be easily distinguished from other oysters that grew in the sound; if they were planted in a place where oysters did not naturally grow; if the place where they were planted was marked and identified, so that the defendant and others going into the sound for clams and oysters naturally growing there could readily know that these oysters were planted and held as private property, and were not natural oysters, or in or upon a natural oyster bed, then the oysters were the subject of larceny, and the defendant might be convicted. But if the jury believed that the oysters were planted in or upon a natural bed, they should be considered as abandoned to the public, and not the property of Hildreth; or, if the jury believed that the planted oysters were not marked and identified, as before stated, the defendant should be acquitted. The oysters in question had once been the property of Hildreth. The only question is, whether the planting of these oysters in a public sound, where all the inhabitants have a common right of fishery, was necessarily an abandonment, or a return of the property to the common stock. There was clearly no intention on the part of the owner to abandon his property. * *# The authorities clearly sustain the instruction given to the jury. Affirmed. S. v. Taylor, 3 Dutch. (27 N. J. L.) 117, 72 Am. Dec. 347, B. 498.

*

*

(Mass. Sup. Judicial Ct., 1862.) Gas-Possession. On indictment for larceny of illuminating gas, the court instructed the jury that if they were satisfied defendant took the gas with felonious intent she was guilty. After the gas had been shut off, and the meter removed for nonpayment of her bill, defendant made a secret connection through a lead pipe and turned the cock in the service pipe. BIGELOW, C. J. We cannot doubt that the instructions given to the jury in this case were right. There is nothing in the nature of gas used for illuminating purposes which renders it incapable of being feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like other personal property, susceptible of being severed from a mass or larger quantity, and of being transported from place to place. In the present case it appears that it was the property of the Boston Gas Light Co.; that it was in their possession by being confined in conduits and tubes, which belonged. to them, and that the defendant severed a portion of that which was in a pipe of the company by taking it into her house and there consuming it. All this, being proved to have been done by her secretly, and with an intent to deprive the company of their property, and to appropriate it to her own use, clearly constituted the crime of larceny. It was suggested by the counsel for the defendant that if she was guilty of any offense, it was not larceny, but embezzlement, inasmuch as it appeared that the gas was intrusted to her possession by the company, and that at the time of the alleged felonious taking

she was the bailee thereof. But the facts proved entirely negative the existence of any such relation between her and the company. The gas was not in her possession. On the contrary, the pipe had been severed from the meter by closing a stopcock in the service pipe, which belonged to the company, for the very purpose of preventing her obtaining possession of it. The fact that the end of the pipe was on the premises occupied by her is wholly immaterial.

* Exceptions overruled. C. v. Shaw, 4 Allen 308, 81 Am. Dec. 706, B. 501.

Acc. S. v. Wellman, 34 Minn. 221, 25 N. W. 395; R. v. White, § 126.

Stealing a Shroud. "A digged up a dead body out of the grave, and stole the shroud, and buried him again; this is reported by Mr. Dalton, c. 103, p. 266, to be no felony, but a misdemeanor, for which the party was whipped. And accordingly I have seen it reported to be held 16 Jac. in Nottingham's Case, quia nullius in bonis; but see Coke P. C. p. 110, in Haine's Case, ruled by the advice of all the judges to be felony, and in the indictment the goods shall be supposed the goods of the executor, administrator or ordinary. But it is held that if A put a winding sheet upon the dead body of B; and after his burial the thief digs up the carcass and steals the sheet, he may be indicted for felony de bonis & catallis A, because it transferred no property to a dead man. 12 Coke 113." 1 Hale P. C. 515.

So of a coffin containing the corpse, S. v. Doepke, 68 Mo. 208, 30 Am. Rep. 785, 5 L. 474.

(Eng. C. C. R., 1877.) Buried Pigs. On indictment for larceny of three dead pigs, it was shown that the pigs were bitten by a mad dog, whereon the owner directed his steward to shoot them; and the steward, having done so, ordered defendants to bury them; which they did, but that night dug them up and sent them to London meat market, where they were sold for £9 3s. 9d., which was paid to the prisoners. Counsel for the prisoners submitted that there was no evidence for the jury; because: 1, property was not proved as laid, the owner having abandoned it; 2, that the buried pigs were of no value; and, 3, that they had been attached to the soil, so as not to be the subjects of larceny. The chairman thought the case was one for the jury, and directed them that in his opinion the points were not well taken, but to acquit if they thought there was an abandonment. The jury found the prisoners guilty, and the judges affirmed the conviction. R. v. Edwards, 13 Cox C. C. 384, 36 L. T. 30, B. 612, C. 239, Ke. 247, Mi. 652.

§ 140. "Claim of Right."

(Mich. Sup. Ct., 1888.) Title in Doubt. On a trial for larceny of a sewing machine it appeared that defendant once owned it, and claimed it as exempt property; that a judgment creditor seized and sold it on execution; and afterwards, having obtained it from the

purchaser at the sale, placed it with a person desiring to purchase, on trial, when defendant peaceably took it away under advice of his attorney, telling the person under what right he claimed it, and giving a receipt for it, stating his name and residence. Conviction on this evidence was reversed, and the case dismissed. P. v. Schultz, 71 Mich. 315, 38 N. W. 868.

Acc. Blair v. S. (Ark.), 71 S. W. 482; P. v. Eastman, 77 Cal. 171, 19 Pac. 266; S. v. Main, 75 Conn. 55, 52 Atl. 257; Causey v. S.. 79 Ga. 564, 5 S. E. 121, 11 Am. St. Rep. 447; Dean v. S., 41 Fla, 291, 26 So. 638; P. v. Slayton, 123 Mich. 397, 82 N. W. 205, 81 Am. St. Rep. 211; Buchanan v. S. (Miss.), 5 So. 617; McGowan v. S., 27 Tex. App. 183, 11 S. W. 112.

(Ind. Sup. Ct., 1901.) To Compel Performance of Contract. Prosecutors had agreed to install 1000 feet of pipe in defendant's greenhouse for $450, to be secured by indorsed notes before the work commenced. He drew the pipe to the place, and they came for the notes before beginning work. He refused, suggesting that they retain title till payment. They proposed to take back the pipe. He hid it. They found a little, obtained a search-warrant and found some more, but not all. He proposed to take $50 to settle and return the pipe, and made other propositions which were not accepted. He was indicted for stealing the pipe, and convicted. DOWLING, J.

* * **

*

The claim is made on behalf of the appellant that he took the property honestly, under a claim of a right to its possession. It is impossible to adopt this view. Neither the title to the pipe nor the right of possession was vested in the appellant. True, the pipe was deposited on his land, but it was there as the property of Maloney & Collins. It was there just as a box of their tools might have been. According to the appellant's own confession, he intended to compel the owners of the property to settle with him on his own terms, to pay a claim they did not owe, or to perform work they were under no obligation to perform, or lose their property. The case readily falls within the well recognized rules relating to the crime of larceny: "The mere delivery of property to another for a special purpose, vests in the person receiving it only the tem-, porary charge or custody; the possession of the property remains in the owner, and a conversion of it is larceny." ** 12 Am. & Eng. Enc. L. 768. Affirmed. Currier v. S., 157 Ind. 114,

60 N. E. 1023.

Compare C. v. Stebbins, § 54, taking money as payment.

*

(Mich. Sup. Ct., 1902.) Same. A felonious intent, necessary to constitute larceny, is not shown where there was a dispute between defendant and one to whom an organ had been sold as to the amount due on it, and defendant, because of the refusal to pay what he claimed, took the organ, telling the purchaser's wife where he was taking it, and that the purchaser could come there and settle. P. v. Walburn, 132 Mich. 24, 92 N. W. 494.

"With Intent."

§ 141. General Rule.

(Eng. Old Bailey, 1729.) Borrowed Horse Taken Aside and Sold. Tunnard was tried before Lord Raymond, C. J. (present Hale, B., and Denton, J.) for stealing a mare the property of Smith. It appeared that prosecutor lived in Ely Isle; that he lent the prisoner the mare to ride to a place three miles distant; but the prisoner rode her to London and sold her. LORD RAYMOND, C. J., left with the jury quo animo he rode the mare to London, and they found him guilty. Per CUR. The finding of the jury will make this case felony, because he rode the mare further than he agreed to do; for if there had been no special agreement the privity would have remained, and it could not have been felony. Tunnard's Case, Leach (4th Ed.) 214n, 2 East P. C. 687, B. 640.

(Eng. C. C. R., 1821.) On Indictment for Horse-stealing. It appeared that the prisoner borrowed the horse to take a child to a surgeon (whether he took the child did not appear), and the following day went with the horse in another direction, was asked to sell it, and did so; and the jury found he had no felonious intent till asked to sell. The question being reserved for the opinion of the judges, they held that if the prisoner had no felonious intent when he took the horse, his subsequent withholding and disposing of it did not constitute a new felonious taking, nor make him guilty of felony; consequently the conviction could not be supported. R. v. Banks, Russell & R. 441, B. 632, C. 364.

Acc. Abrams v. S., 121 Ga, 170, 48 S. E. 965; Hill v. S., 57 Wis. 377, 15 N. W. 445, 5 L. 450.

(Me. Sup. Judicial Ct., 1868.) Horse Hired to Go to One Place and Taken to Another. DICKERSON, J. Exceptions. The prisoner was indicted for the larceny of a horse, sleigh, and buffalo robes. The jury were instructed that, if the prisoner obtained possession of the team by falsely and fraudulently pretending that he wanted it to drive to a certain place, and to be gone a specified time, when in fact he did not intend to go to such place, but to a more distant one, and to be absent a longer time, without intending at the time to steal the property, the team was not lawfully in his possession, and that a subsequent conversion of it to his own use, with a felonious intent while thus using it, would be larceny. It is well settled that where one comes lawfully into possession of the goods of another, with his consent, a subsequent felonious conversion of them to his own use, without the owner's consent, does not constitute larceny, because the felonious intent is wanting at the time of the taking. But how is it when the taking is fraudulent or tortious, and the property is subsequently converted to the use of the taker with a felonious intent? When property is

thus obtained, the taking or trespass is continuous. The wrong-doer holds it all the while without right, and against the right and without the consent of the owner. If at this point no other element is added, there is no larceny. But if to such taking there be subsequently superadded a felonious intent, that is, an intent to deprive the owner of his property permanently without color of right, or excuse, and to make it the property of the taker without the owner's consent, the crime of larceny is complete. Exceptions

overruled. S. v. Coombs, 55 Me. 477, 92 Am. Dec. 610, B. 593. On this doctrine of continuing trespass compare § 88, on locality of crime, goods brought into state.

(Idaho Sup. Ct., 1902.) Taking Wrongfully and Subsequently Intending to Convert. On trial for larceny, it is error to instruct that if defendant wrongfully, and without the knowledge of the owner or any person, but as a trespasser, took or drove away the property described, not intending to steal it, and that while still in such wrongful possession, he feloniously appropriated the same to his use, such taking constituted larceny. S. v. Riggs, 8 Idaho 630, 70 P. 947.

Acc. cited in above; P. v. Morino, 85 Cal. 515, 24 Pac. 892; Beckham v. S., 100 Ala. 15, 14 So. 859, hog found at high water in swamp; S. v. Rechnitz, 20 Mont. 488, 52 Pac. 264.

(Eng. C. C. R., 1800.) Goods Taken from Burning House to Save. Eliz. Leigh was indicted for stealing various articles, property of A. Dyer. It appeared that Dyer's house and shop were on fire, and defendant with other neighbors assisted in removing the goods to a place of safety; that she removed muslin in his presence, though not at his desire; that he asked her for it the next morning, and she denied having it, and that by search-warrant the property was found artfully concealed in her house in various ways. It was claimed that her first purpose was honest, since she took the property in Dyer's presence; but the court instructed the jury that such purpose did not follow from that fact, and that if she took them with honest purpose, her subsequent denial and hiding would support the indictment. The jury found her guilty, but said that when she took them she had no evil design. On reference to the judges, all (absent, Lawrence, J.) held the conviction wrong; for if the original taking were not with intent to steal, the subsequent conversion was no felony, but a breach of trust. Leigh's Case, 2 East P. C. 694, 1 Leach (Ed. 4) 411n, B. 632, Mi. 731.

That the intent must exist at the time of the act is the rule, see § 36. But see R. v. Woodward. § 154, ratification of wife's act in receiving stolen goods.

(Eng. C. C. R., 1849.) A Traveling Watch Tinker was Indicted for stealing a watch delivered to him by the owner to regulate, and for stealing another watch given him to repair. A verdict of guilty was held not supported by the evidence, as there was no proof of animus furandi at the time of delivery, though defendant left town, taking the watches with him a few days later. Conviction reversed.