pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, guilty of larceny at cominon law. Thus where a servant or clerk had received property for the use of his master, and the master never had any other possession than such possession by his servant or clerk, it was doubted wheher the latter was guilty of felony in stealing uch property, or was guilty merely of a reach of trust, 2 Leach, 835. Hale, 668. East, P. C. 570, 1; and see 4 Taunt. 258. Russ. & Ry. C. C. 215. S. C. 2 Leach, C. C. 1054. So a cashier of the bank could not be guilty of felony in embezzling an India bond which he had received from the court of chancery, and was in his actual as well as constructive possession. 1 Leach, 28. So if a clerk received money of a customer, and, without at all putting it in the till, converted it to his own use, he was guilty only of a breach of trust, though had he once deposited it, and then taken it again, he would have been guilty of felony. 2 Leach, 835. Servants and Clerks.-The dangers resulting from this doctrine occasioned the fenact ment of 39 Geo. III. c. 85. against such embezzlements by servants, or clerks, rendering the offence punishable with transportation for fourteen years. This act extends only to such servants as are employed to receive money, and to instances in which they receive money by virtue of their employment. It seems an apprentice, though under the age of eighteen, is within the act, R. & R. C. C. 80; so is a female servant. R. & R. C. C. 267. A person employed upon commission to travel for orders, and to collect debts, is a clerk within the act, though he is employed by many different houses on each journey, and pays his own expenses out of his commission on each journey, and does not live with any of his employers, nor act in any of their counting houses. R. & R. C. C. 198. So a servant in the employment of A. & B., who are partners, is the servant of each, and if he embezzle the private money of one, may be charged under the act as the servant of that individual partner. 3 Stark. C. N. P. 70. A man is sufficiently a servant within the act, although he is only occasionally employed when he has nothing else to do; and it is sufficient if he was employed to receive the money he embezzled, though receiving money may not be in his usual employment, and although it was the only instance in which he was so employed. R. &. Ry. C. C. 299. A clerk intrusted to receive money at home from out-door collectors, receives it abroad from out-door customers, it was held, that such receipt of money may be considered "by virtue of his employ. ment," within the act, though it is beyond the limits to which he is authorized to receive money from his employers. R. & Ry. C. C. 319. So if a servant generally employed by his master to receive sums of one description and at one place on.y, is employed by him in a particular instance to receive a sum of a different description and at a different place, this latter sum is to be considered as received by him by virtue of his employment, for he fills the character of servant, as it is by being employed as servant he receives the money R. & Ry. C. C. 516. Where the owner of a colliery employed the prisoner as captain of one of his barges to carry out and sell coal, and paid him for his labour by allowing him two-thirds of the price for which he sold the coals, after deducting the price charged at the colliery, he was held a servant within the act, and having embezzled the price, he was guilty of larceny within the act. R. & R. C. C. 139. So a servant who received money for his master for articles made of his master's materials which he embezzled, was held within the act, though he made the articles, and was to have a given portion of the price for making of them. Russ. & Ry. C. C. 145. The act is not confined to clerks and servants of persons in trade; it extends to the clerks and servants employed to receive of all persons whatever. Therefore where the overseers of a township employed the prisoner as their accountant and treasurer, and he received and paid all the money receivable or payable on their account, he received a sum and embez zled it, he was held a clerk and servant within the act. R. & R. C. C. 349. 2 Stark. C. N. P. 349. S. C. If a servant, immediately on receiving a sum for his masters, enters a smaller in his book, and ultimately account to his master for the smaller sum only, he may be considered as embezzling the difference at the time he made the entry, and it will make no difference, though he received other sums for his master on the same day, and in paying them and the smaller sum to his master together he might give his master every piece of money or note he received at the time he made the false entry. R. & R. C. C. 463. 3 Stark. N. P. C. 67. S. C. It seems the act does not apply to cases which were larceny at common law. 2 Leach, C. C. 1033. R. & R. C. C. 160. S. C. Peck's case, cor. Park, J. Staffordshire Sum. Ass. 1817, 3 Stark. Evid. 842. It is questionable, therefore, whether, if a servant receives money from his master to pay C. and does not pay it, he can be indicted for embezzlement, Russ. & Ry. C. C. 267; but as counts for larceny at common law, and for embezzlement under the statute, may be joined in the same indictment, any difficulty in this respect may be avoided. See 3 M. & S. 549, 550. Although property has been in the possession of the prisoner's masters, and they only intrust the custody of such property to a third person to try the honesty of their servant, if the servant receives it from such third person and embezzles it, it is an offence within the act. R. & R. C. C. 160. 2 Leach, 1033. S. C. Party stealing his own Goods, &c.-Besides the cases already mentioned in the text, if a man steals his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet if the bailee had an interest in the possession ind † See post. p. 231. note. these are larcenies (c); for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect But bare non-delivery shall not of course be intended to arise from a felo nious design; since that may happen from a variety of other accidents Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 33 Hen. VI. c. 1. the servants of persons deceased, accused of embezzling their masters' goods, may by writ out of chancery (issued by the advice of the chief justices and chief [231] baron, or any two of them), and proclamation made thereupon, be summoned to appear personally in the court of king's bench, to answer their masters' executors in any civil suit for such goods; and shall, on deault of appearance, be attainted of felony. And by statute 21 Hen. VIII. 3. 7. if any servant embezzles his master's goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old (4), (5). But if he had not the possession, but only (c) 3 Inst. 107. could have withheld it from the owner, the 37. this circumstance will not affect the crime. 2 Leach, 922. (4) The above statutes, with others on the same subject, are repealed by the 7 and 8 Geo. IV. c. 27; and by the 7 and 8 Geo. IV. c. 29, 46, any clerk or servant stealing any chattel, money, or valuable security belonging to, or in the possession or power of his master, is punishable with transportation for any term not exceeding fourteen years, and not less than seven, or with imprisonment for any term not exceeding three years, with whippings. S. 47 enacts, that any clerk or servant, or person employed as such, receiving or taking, by virtue of such employment, into his possession, any chattel, money, or valuable security, for, or in the name, or on the account of his master, and fraudulently embezzling the same, or any part thereof, shall be deemed to have feloniously stolen the same from his master, although such chattel, &c., was not received into the master's possession otherwise than by the actual possession of such clerk or servant, or other person so employed, and shall be liable to any of the punishments set forth in s. 45. By s. 48, "for preventing the difficulties that have been experienced in the prosecution of the last-mentioned offenders," it is enacted, "that it shall be lawful to charge in the indictment, and proceed against the offender for any number of distinct acts of embezzlement not. exceeding three, which may have been committed by him against the same master, within the space of six calendar months from the first to the last of such acts; and in every such indictment, except where the offence shall relate to any chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, lue would be punished. (2 R. S. 678, § 59 &c.) The buying or receiving embezzled property knowingly, is punished in the same way. (Id. 61.) Carriers are also punished in the same way for embezzling, &c. (Id. ◊ 62) the care and oversight of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law (d). So if a guest robs his inn or tavern of a piece of plate, it is larceny: for he hath not the possession delivered to him, but merely the use (e), and so it is declared to be by statute 3 & 4 W. & M. c. 9. if a lodger runs away with the goods from his ready furnished lodgings (6). Under some circumstances also a man may be guilty of felony in taking his own goods: as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an an intent to ch charge the hundred with the loss according to the statute of Winchester (ƒ). 2. There must not only be a taking, but a carrying away (7); cepit et as (d) 1 Hal.P. C. 506. (e) 1 Hawk. P. C. 90. > far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved; or if he shall be roved to have embezzled any piece of coin or valuable security, or any portion of the vaue thereof, although such piece of coin or valuable security may have been delivered to nim in order that some part of the value thereof should be returned to the party delivering the same, and such part sha!! have been returned accordingly." Each act of embezzlement should be set forth in a separate count, and the prosecutor cannot be compelled to elect which he will singly proceed upon. The indictment need not state from whom the money alleged to have been embezzled, was received. Rex v. Beacall, 1 C. and P. 454. The day laid is not material. By statute 5 Geo. IV. c. 20, § 10, persons employed in the post-office embezzling notes, parliamentary, proceedings, or newspapers, &c., are guilty of a misdemeanor, and punishable by fine and imprisonment, the offence to be tried either where committed or where the offender is apprehended. By 7 and 8 Geo. IV. c. 29, § 49, bankers, merchants, brokers, attornies, and other agents, embezzling money intrusted to them to be applied to any special purpose, or embezzling any goods, or valuable security intrusted to them for safe custody, or for any special purpose, are guilty of a misdemeanor, and punishable in any of the modes pointed out in s. 46. S. 50 provides, that the Act shall not affect trustees or mortgagees; nor bankers, &c. receiving money due'on securities, or disposing of securities on which they have a lien. By s. 51, factors pledging for their own use any goods, or documents relating to goods, intrusted to them for the purpose of sale, are guilty of a misdemeanor, and punishable by transportation for fourteen or seven years, or by fine and imprisonment, as the court shall award; the clause not to extend to cases where the pledge does not exceed the amount of then lien. And by s. 52, these provisions as to agents shall not lessen any remedy which the party aggrieved previously had, at law or in equity A person intrusted as a private (f) Fost. 123, 124. friend, with a bill to get it discounted, and converting it to his own use, is not an agent within the meaning of the Act. Rex v. Prince, 2 C. and P. 517. (6) Repealed by 7 and 8 Geo. IV. c. 27; and by 7 and 8 Geo. IV. c. 29, § 45, it is enacted, that if any person shall steal any chattel or fixture let to be used by him in or with any house or lodging, he shall be guilty of felony, and be punished as for simple larceny; and the indictment may be preferred in the common form as for larceny, and as if the offender were not a tenant or lodger, and in either case the property may be laid in the owner or person letting to hire. In Healey's case, R. and M. 1, it was considered unnecessary to state by whom the lodging was let, the judges holding that the letting might be stated either according to the fact, or according to the legal operation. The statement as to the party by whom the lodging is let, would be regulated by this case under the present Act. (7) If a thief cut a belt on which a purse is hung, and it drops to the ground where he leaves it, or if he compel a man to lay down goods which he is carrying, and is apprehended before he raises them from the ground, the crime is incomplete. I Leach, 322. n. b. 1 Hale, 533. And if goods are tied to a string, which is fastened at one end to a counter, and a person intending to steal them takes hold of the other, and removes them towards the door as far as the string will permit him, this will be no felony. So where the prosecutor had his keys tied to the strings of his purse in his pocket, which the prisoner endeavoured to take from him and was detected with the purse in his hand, but the strings still hung to the pocket by the keys, this was holden to be no asportation, and therefore no larceny was committed. 1 Leach, 321. n. a. 1 Hale, 508. But a very slight asportation will suffice. Thus, to snatch a diamond from a lady's ear, which is instantly dropped among the curls of her hair. 1 Leach, 320. 2 East, P. C. 557; to remove sheets from a bed and carry them into an adjoining room, 1 Leach, 222, in notes to take plate from a trunk, and lay it on the floor with intent to carry it away, ibid.-and to remove a package from one part of a waggon to another, with a view to steal it, 1 Leach, 236, have respectively been holden to be fe! portavit was the oid law-latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a suf ficient asportation, o or carrying away, As if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down stairs: these have been adjudged sufficient carryings away, to constitute a larceny (g). Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprised before he can make his escape with it; this is larceny (h). 3. This taking, and carrying away, must also be felonious; [*232] that is, done animo furandi; or, as the civil law expresses it, lucri causa (i) (8). This requisite, besides excusing those who labour under in (g) 3 Inst. 108, 109. (h) 1 Hawk. P. C. 93. nies, and where prisoner had lifted up a bag from the bottom of a boot of a coach, but was detected before he had got it out, it did not appear that it was entirely removed from the space it at first occupied in the boot, but the raising it from the bottom had completely removed each part of it from the space that specific part occupied, this was held a complete asportation. 1 Ry. and Moody, C. C. 14. But if the defendant merely change the position of a package from lying endways to lengthways, for the greater convenience of taking out its contents, and cuts the outside of it for that purpose, but is detected before he has taken any thing, there will be no larceny committed. Id. ibid. in notes. Where it is one continuing transaction, though there be seve ral distinct asportations in law by several persons, yet all may be indicted as principals who concur in the felony before the final carrying away of the goods from the virtual custody of the owner, 2 East P. C. 557; but two cannot be convicted upon an indictinent charging a joint larceny, unless there be evidence to satisfy a jury that they were concerned in a joint taking. 2 Stark. on Evidence, 840. If one steal another man's goods, and afterwards another stealeth from him, the owner may prosecute the first or the second felon at his choice. Dalt. c. 162. There is no occasion that the carrying away be by the hand of the party accused, for if he procured an innocent agent, as a child or a lunatic, to take the property, or if he obtained it from the sheriff by a replevin, without the slightest colour of title, and with a felonious design, he will himself be a principal offender. Hawk. b. 1. c. 33. s. 12. (8) The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own use; and it is not necessary that the taking should be done lucri causa; taking with an intent to destroy will be sufficient to constitute the of fence if done to serve the prisoner or another person though not in a pecuniary way. R. & R. C. C. 292. In a late singular case it was determined, that where a servant clandestinely took his master's corn, though to give it to his master's horses, he was guilty of larceny, the servant in some degree being likely to diminish bis labour thereby. R. & R. C. C. (i) Inst. 4. 1. 1. 307. 3 Burn J. 24th edit. 209. (See a late case, Rus. & Ry. C. C. 118. under very parti cular circumstances.) It is sufficient if the prisoner intend to appropriate the value of the chattel and not the chattel itself to his own use, as where the owner of goods steals them from his own servant or bailee in order to charge him with the amount. 7 Hen. VI. f. 43. The intention must exist at the time of the taking, and no subsequent felonious intention will render the previous taking felonious. We have seen that a taking by finding, and a subsequent conversion, will not amount to a felony. 3 Inst. 108. 1 Hawk. c. 33, s. 2. 2 Russ. 1041. But if the goods are found in the place where they are usually suffered to lie, as a horse on a common, cattle in the owner's fields, or money in a place where it clearly ap pears the thief knew the owner to have concealed it, 1 Hale, 507, 508. 2 East P. C. 664; or if the finder in any way know the owner, or if there be any mark on the goods by which the owner can be ascertained, see 3 Burn J. 24th edit, 213, the taking will be felonious. So if a parce! be left in a hackney coach, and the driver open it, not merely from curiosity, but with a view to appropriate part of its contents to his own use, or if the prosecutor order him to deliver the package to the servant, and he omits so to do, he will be guilty of felony. 2 East P. C. 664. 1 Leach, 413, 15, and in notis. Where the taking exists, but without fraud, it may amount only to a trespass. This is also a point frequently depending on circumstantial evidence, and to be left for the jury's decision. Thus, where the prisoners entered another's stable at night and took out his horses, and rode them thirty-two miles, and left them at an inn, and were afterwards found pursuing their journey on foot, they were held to have committed only a trespass, and not a felony. 2 East, P. C. 662. It depends also on circumstances what offence it is to force a man in the possession of goods to sell them; if the defendant takes them, and throws down more than their value, it will be evidence that it was only trespass; if less were offered, it would probably be regarded as felony. 1 East Rep. 615. 636. And it seems that the taking may be only a trespass, where the original as capacities of mind or will (of whom we spoke sufficiently at the entrance of this book) (k), indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master's horse without his knowledge, and brings him home again:) if a neighbour takes another's plough that is left in the field, and uses it upon his own land, and then returns it if under colour of arrear of rent, where none is due, I distrain another's cattle, or seize them all these are misdemeanors and trespasses, but no felonies (?). The ordinary discovery of a felonious intent is where the party doth it clandestinely; or, being charged with the fact, denies it. But this is by no means the only criterion of criminality for in cases that may amount to larceny the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those, which may evidence a felonious intent, or animum furandi: wherefore they must be left to the due and attentive consideration of the court and jury. 4. This felonious taking and carrying away must be of the personal goods of another: for if they are things real, or savour of the reality, larceny at the common law cannot be committed of them (9). Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed by the rules of the common law: but the severance of them was, and in many things is still, merely a trespass which depended on a subtilty in the legal notions of our ancestors. These things were parcel of the real estate; and therefore, while they continued so, could not by any possibility be the subject of theft, being ab[233] solutely fixed and immoveable (m). And if they were severed by violence, so as to be changed into moveables; and at the same time, by one and the same continued act, carried off by the person who severed them; they could never be said to be taken from the proprietor, in this their newly acquired state of mobility (which is essential to the nature of larceny), being never, as such, in the actual or constructive possession of any one, but of him who committed the trespass. He could not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels, in the constructive possession of him on whose soil they are left or laid; and come again at another time, when they are so turned into personalty, and takes them (k) See page 20. (1) 1 Hal. P. C. 509. (m) See Book II. p. 16. mere accident, or in joke, or mistaking another's property for one's own, is neither legally nor morally a crime. 2 Hale, 507. 509. sault was felonious. Thus, if a man searches / 82. 2 Raym. 276. 2 Vent. 94. A taking by the pockets of another for money, and finds none, and afterwards throws the saddle from his horse on the ground, and scatters bread from his packages, he will not be guilty of obbery, 2 East P. C. 662, though he might certainly have been indicted for feloniously assaulting with intent to steal, for that offence was complete. The openness and notoriety of the taking, where possession has not been obtained by force or stratagem, is a strong circumstance to rebut the inference of a felonious intention, 1 Hale, 507. East P. C. 661, 662.; but this Bene will not make it the less a felony. Kel. (9) By statute 7 and 8 Geo. IV. c. 29, § 23, the stealing any description of writings relat ing to the title of real estates is punishable with transportation for seven years, or with fine and imprisonment at the discretion of the court; and, by 24, these provisions are not to deprive the party aggrieved of the remedies he now has, at law or in equity. This enact. ment is new. See 3 Inst. 109; 1 Hale, ija See note 1, p. 229. |