dence were not sufficient to constitute a larceny," all the prisoners were allowed to stand out on bail until the next Quarter Sessions.

The question for the court was whether the facts as disclosed by the evidence were sufficient to constitute a larceny.

No one appeared on either side.

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 on to 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. It is perhaps as well to say that the learned chairman somewhat improperly left the question to the jury. He told them that if they thought that the prisoner Hands was one of the three lads who came to the entrance of the passage and that he was there with the others for the common purpose of unlawfully taking the cigarettes from the box, or that he afterwards partook of the proceeds of the robbery, they would be justified in finding him guilty,

he did not say larcenously or feloniously; and he further directed them that if they thought the prisoner had taken a part in making the disks, knowing for what purpose they were to be used, they would be justified in finding him guilty although he might not actually have put the disks into the box or have taken out a cigarette. Now I am not quite sure that simply the fact of doing an unlawful thing, as joining in the manufacture of a disk that some one else was to use, would make him guilty of larceny. He might be guilty of something else, but I doubt very much whether he could be convicted of larceny. As upon the facts of the case, however, I do not think that the jury could have been misled, and as upon the facts there was undoubtedly a larceny committed, I am not disposed to set aside the conviction. POLLOCK, B., STEPHEN, MATHEW, and WILLS, JJ., concurred. Conviction affirmed.

MITCHUM v. STATE.

SUPREME COURT OF ALABAMA. 1871.

[Reported 45 Alabama, 29.]

APPEAL from Circuit Court of Shelby. Tried before Hon. Charles Pelham. The facts material to the point decided will be found in the opinion.

Cobb & Lewis, for appellant. The testimony shows that the matches were placed upon the counter for the use of the public, and the accommodation of the public, that any and every person had the right to take the matches without limit, to light their pipes and cigars. The defendant certainly had the right to take the matches to light his pipe or cigar, and he had the right to use the entire box in this way. The fact that he may have used them for a different purpose would not make the taking felonious. There can be no larceny where the owner consents to the taking. The taking must be without authority and against the will of the owner. If the taking is not felonious, although the property may be converted to an improper use, yet the defendant is not guilty of larceny.

John W. A. Sanford, Attorney General, contra.

SAFFOLD, J.

The defendant was indicted for petit larceny. On the trial the evidence material to the exception taken by him was that the box of matches, the subject of the larceny, was placed on the counter of the store, to be used by the public in lighting their pipes and cigars in the room, and for their accommodation, and was taken therefrom by the defendant. The court was requested by the prisoner to charge the jury that if the matches were placed on the counter of the store-house for the use of customers, or the public, and they were taken while there for such use, the defendant was not guilty. The charge was refused, and the defendant excepted.

Larceny may be committed of property under the circumstances attached to the box of matches. The owner had not abandoned his right to them. They could only be appropriated in a particular manner and in a very limited quantity with his consent. Taking them by the boxful without felonious intent would have been a trespass, and with it, a larceny. The ownership was sufficiently proved.

The judgment is affirmed.

SECTION IV (continued).

Taking with Consent.

(b) LARCENY BY TRICK.

REX v. PEAR.

CROWN CASE RESERVED. 1779.

[Reported 2 East P. C. 685.]

JOHN PEAR was indicted for stealing a black mare, the property of Samuel Finch. On the 2d July, 1779, the prisoner hired the mare of Finch, who lived in London, for that day, in order to go to Sutton in Surrey, and told him that he should return at eight o'clock the same evening. Finch, before he let the prisoner the mare, inquired of him where he lived, and whether he were a housekeeper; to which he answered, that he lived at No. 25 in King Street, and was only a lodger. The prisoner not returning as he had promised, the prosecutor went the next day to inquire for him according to the direction he had given; It turned out that the prisoner but no such person was to be found.

had in the afternoon of the same 2d of July sold the mare in Smithfield. In summing up this evidence to the jury, Mr. Justice Ashhurst, who tried the prisoner, told them that if they were of opinion that the prisoner hired the mare with an intent of taking the journey mentioned, and afterwards changed that intention, then as she was sold whilst the privity of contract subsisted, they ought to acquit the prisoner. But if they were of opinion that the journey was a mere pretence to get the mare into his possession, and that he hired her with an intention of stealing her, they ought to find him guilty: and he would save the point for the opinion of the judges. The jury found the prisoner guilty. This case underwent a great deal of discussion, and the judges delivered their opinion seriatim upon it, on the 4th February, 1780, at Lord C. J. De Grey's house; and on the 22d of the same month

MR. BARON PERRYN delivered their opinion at the O. B. as follows: (After stating the indictment, evidence, and finding of the jury as above

1 Acc. Com. v. Brown, 4 Mass. 580: Nichols v. People, 17 N. Y. 114. - ED. 2 This judgment was settled and approved by several of the judges before it was delivered. (East's note.)

2

stated.) This case has been maturely considered by all the judges, and eleven1 of them, who met for the purpose, delivered their opinions at large upon the subject: seven of them held the offence to be a clear felony; two of them were of opinion that it was not felony; and the other two entertained great doubts at the last; which doubts were founded upon two statutes which he should take notice of. Three out of the four dissenting judges agreed with the seven, that by the principles of the common law this was felony. But the doubts and opinions of those four judges were founded chiefly on the statutes 33 H. 8 and 30 G. 2, against obtaining goods by false tokens or false pretences. Two of the judges thought that as the delivery of the mare was obtained from the owner by means of asserting that which was false, viz. that the prisoner wanted to go a journey which he never intended to take at all; and as the two statutes before mentioned had made the offence of obtaining goods by false tokens or false pretences punishable as a misdemeanor only, and the stat. 33 H. 8, had distinguished the case of obtaining goods by false tokens from the case of obtaining goods by stealth; they were bound by those statutes to say, that the prisoner's offence was not felony. One of them also held that this was not felony by the common law; because there was no actual taking of the mare by the prisoner. But ten out of the eleven judges held it to be clear that the offence would have been felony by the common law, if the statutes had never existed; and seven of them held that it was not within or at all affected by the statutes of H. 8 or G. 2. That larceny was defined by Lord Coke to mean a felonious and fraudulent taking and carrying away of the goods of another. But it was settled by old authorities, that the taking need not be by force. If a carrier or porter received goods to carry from one place to another, and he opened the pack and sold them, that was felony; yet in that case there was no taking by force, but on a delivery by the owner. That the reason assigned for the determination in Kel. 82 was because the opening and disposing of them declared that his intent originally was not to take the goods upon the agreement and contract of the party, but only with a design of stealing them. So if A. cheapened goods of B.'s, and B. delivered them to A. to look at, and A. ran away with them, this was felony by the apparent intent of A. T. Ray. 276; Kel. 82. So if a horse were upon sale, and the owner let the thief mount him in order to try him, and the thief rode away with him, it was felony. Kel. 82. So in the case of one Tunnard, tried at the O. B. in October Sessions, 1729, who was indicted for stealing a brown mare of Henry Smith's and upon the evidence it appeared, that Smith lived in the Isle of Ely, and lent Tunnard the mare to ride three miles; but he, instead of riding three miles only, rode her up to London and sold her: this was holden to be felony. And Lord C. J. Raymond, who tried

1 Mr. Justice Blackstone, the other judge, who was absent on account of illness, always held that it was felony. (East's note.)

the prisoner, left it to the jury to consider, Whether Tunnard rode away with her with an intent to steal her? and the jury found him guilty. That here the same directions were given to the jury by the learned judge who tried the prisoner, and the jury had given the same verdict. That even in the case of burglary, which the law defined to be the breaking into a house in the night time with intent to commit. felony, if a man procured the door of a house to be opened by fraud, and by that means entered into the house through the door-way without any actual breaking, it had been adjudged to be burglary. That in all these cases the intention was the thing chiefly regarded, and fraud supplied the place of force. That what was the intention was a fact, which in every case must be left upon the evidence to the sound judgment of a jury. And in this case the jury had found that at the time when the prisoner obtained the possession of the mare, he intended to steal her. That the obtaining the possession of the mare, and afterwards disposing of her in the manner stated, was in the construction of law such a taking as would have made the prisoner liable to an action of trespass at the suit of the owner, if he had not intended to steal her. For she was delivered to the prisoner for a special purpose only, viz. to go to Sutton, which he never intended to do, but immediately sold her. That in this light the case would be similar to what was laid down by Littleton, sect. 71, who says, "If I lend to one my sheep to dung his land, or my oxen to plough the land, and he killeth my cattle, I may have trespass notwithstanding the lending." That if in such a case trespass would have lain, there could be no doubt but that in this case, where the felonious intent at the time of obtaining the possession was found by the jury, that it was felony by the common law. That ten of the judges out of the eleven, therefore, were of opinion, that if a person obtained the delivery of a thing by fraud and falsehood, intending at the time that he so obtained the delivery to steal it; upon the principle of the common law and the adjudged cases which had been mentioned, if the statutes had not existed, his offence would be felony.1 That the next question was, Whether this offence were within or at all affected by the statutes of H. 8 and G. 2.2 Seven of the judges were of opinion that it was not. That the stat. of H. 8 was confined to the 1 On the debate of this case, ASHURST, J., said, "Wherever there is a real and bona fide contract and a delivery, and afterwards the goods are converted to the party's own use, that is not felony. But if there be no real and bona fide contract, if the understanding of the parties be not the same, the contract is a mere pretence, and the taking is a taking with intent to commit felony. (East's note.)

2 On the debate in this case Eyre, B., adverting to these statutes, said he doubted if there were not a distinction in this respect between the owner's parting with the possession and with the property in the thing delivered. That where goods were delivered upon a false token, and the owner meant to part with the property absolutely and never expected to have the goods returned again, it might be difficult to reach the case otherwise than through the statutes; aliter, where he parted with the possession only for there if the possession were obtained by fraud, and not taken according to the agreement; it was on the whole a taking against the will of the owner; and if done animo furandi, it was felony. (MS. Buller, J.)