LARCENY-TAKING AND CARRYING AWAY.

STATE v. GAZELL.

[30 Mo. 92.]

A horse was feeding in a lot surrounded by a fence. He was a good horse, and the turning that way coveted him.

eyes of a passer-by As no one seemed

to be watching, the passer-by got over the fence, and, putting a rope around his neck, was in the act of leading the horse away, when the owner appeared and led him away. Indicted for larceny, his lawyer argued that the horse had not been "taken away," which was a necessary element of larceny; that he had not been removed from the lot, which was surrounded by a high fence.

But the court said that any taking, however insignificant, was enough. "The least removal of the thing taken from the place where it was before is a sufficient asportation, though it be not quite carried off. As where one takes a horse, and is arrested in the act of leading him from the enclosure of the

owner, or where one takes goods in an inn, and carries them into the hall with an intent to steal them, and is apprehended before he gets out of the house, he was adjudged guilty of larceny. So, where one takes plate from a chest and lays it on the floor, and is surprised before he can carry it away, or removes goods from one end of a wagon to the other, but is detected before he gets them out, the offense is complete, and he is guilty of larceny.'

Larceny is the willful and wrongful taking possession of the goods of another with intent to deprive the owner of his property in them.

At common law, larceny was called petit when the value of the property stolen did not exceed twelve pence, and grand when the value exceeded that sum. Grand larceny was a hanging matter, while petit larceny was punished by fine or imprisonment. In the United States the distinction is still maintained, though the value necessary to render the crime grand has been raised. [It ranges from four to thirty-five dollars in the different States.]

This crime will be considered in these divisions, viz.: I. The subjects of larceny. II. The wrongful taking possession III. The requisite intent.

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I. The subjects of larceny. Personal property is the only kind of property which at common law can be the subject of larceny. Things real, as lands and houses; and things attached or belonging to the realty, as trees, grass, the stones or lead of a house; also title deeds or other writings relating to real estate, can not. But things severed from the land, as mown grass or pulled or plucked vegetables, might be stolen and the party would be guilty of larceny. Animals feræ naturæ,―i.e., wild animals,—and things not the subject of property at all, as, for example, a corpse, were also excluded. But if the animal had been killed for food, or to be stuffed and exhibited, then it was larceny to appropriate it.

II. The wrongful taking possession. The taking is either actual or constructive; the former, when the thief takes the goods directly out of the man's possession; the latter, where the owner delivers

the goods to him; but either does not divest himself of the legal possession, or their legal possession is obtained from him by fraud, in pursuance of a previous intent to steal them. The law of constructive delivery is considered under five heads:

(a.) When the property as well as the possession is parted with by the delivery. Here there can be no larceny, no matter how fraudulent are the means by which the delivery of the property has been procured. If the property has once passed, no subsequent act of the person in whom the right of property has vested can be construed into larceny, whatever the intent of that person may be. Thus, A. buys a horse from B., mounts it, saying he will return immediately and pay. B. says: "Very well." A. rides away and never returns. There is no larceny, because the property as well as the possession is parted with. Harris Cr. L. 168. But in a number of cases of this kind the party would be criminally liable for false pretences. For examples of this, see ante, p. 293.

(b.) When the possession is obtained by fraud, but the owner does not intend to part with the property, though he does with the temporary possession. This is larceny, though there be a delivery in fact. A. for example goes to B.'s shop and says that C. wants some shawls to look at. B. gives A. some shawls for C. to select from. A. converts them to her own use. This is larceny in A. because until the selection is made, only the possession and not the property is parted with.

(c.) When the possession is obtained bona fide, and the fraudulent intention is afterwards formed. If a person obtains in a bona fide manner the possession of another's goods, and afterwards appropriates them, he is not guilty of larceny. Thus a common carrier at common law was not guilty of larceny if he stole the goods entrusted to him, unless he broke the bulk. This has been altered by statute; and the statutory crime of embezzlement (post, p. 304) now takes hold of transactions of this kind.

(d.) When the delivery does not alter the possession. The taking, to be larceny, must be out of the possession of the owner, or some person entitled to it. But, though a thing may be delivered by the owner to another, he may not part with the possession of it; he may simply put it in charge of that other for a time. And "charge" is not possession. A man who tells his servant to hold

his horse for him, or who allows his guest to use his cups to drink out of and his forks to eat with, retains his control over the horse and the cup and fork as much as if he held the bridle or the cup and fork in his own hand. An old lady who wanted to take the train at a railroad depot, finding a crowd at the ticket office, handed a man in the line a gold coin with a request that he would be good enough, if he pleased, to buy her a ticket to York. The man took the coin, and instead of buying the ticket slipped through the crowd and decamped. It was held that he was guilty of larceny as the old lady had never parted with the possession of the coin in point of law. "She," said the court, "handed it to him to procure her a ticket, never intending to part with the dominion, and merely used his hand instead of her own." Reg. v. Thompson, 32 L. J. (M. C.) 53. On the other hand, where the property is delivered to the servant for the master, and the servant immediately converts it to his own use, this is not larceny, for the master never had the possession. A clerk, for example, receives money from one of his master's customers, which, instead of putting in the till, he transfers to his pocket. This is not larceny; but is embezzlement. Post, p. 304.

There must be a taking, i.e., the goods or property must be moved from the place where it was; there must be a carrying away called in the law an asportation. The slightest removal, however, is sufficient; the possession by the prisoner need only be for an instant. Mr. Bull, who was a collector for a bank, and, therefore, the very kind of a man for a thief to meet, got in a street car one afternoon. In his breast pocket he had a wallet with no less than $25,000 in notes and securities inside. A man named Harrison standing on the platform, as Mr. Bull passed him, put his hand in his pocket, seized the wallet and had lifted it a couple of inches from the bottom of the pocket when Mr. Bull felt him, and got it out of his hand. It was held that there had been a sufficient taking, the judge quoting a remark of an English Baron, that though there must be a removal of the property, yet a hair's breadth will do. "The hand of the prisoner," said the court," was about the book, controlling it and taking it away; indeed, had taken it away, every part of it from the space which that part had occupied before his touch. It was in his possession. He directed, and for the instant of time controlled its movements. No inanimate physical hindered him. Bull for that instant of time did not control or possess it." Harrison v. People, 50 N. Y. 518.

III. The requisite intent. The taking must be willful; if it is under color of right, though the supposed right has no foundation, it is not larceny. State v. Homes, 17 Mo. 379. If it is not taken with the intent formed at the time to steal it, it is not larceny. Thus, if I take my neighbor's horse out of his stable and ride it in open day for a few miles, where everybody knows me and it, this would be a trespass, if done without his consent, but it would not be larceny.

And the taking must be secret; if it is open and by force the crime is robbery. State v. Ledford, 67 N. C. 60.

Likewise, the taking must be for gain — lucri causa as the nomenclature of the law has it. Mr. Orin Woodward who was on bad terms, on account of some litigation between them, with Ambrose Jewell, finding his stable door open one afternoon, led his best horse out, took it to a common, killed, and buried it. Mr. Orin Woodward was tried for larceny and acquitted, because it was clear he took the horse for revenge, not for greed. People v. Woodward, 31 Hun, 57. But the least gain is sufficient. Thus, where the prisoner, a servant of A., applied for and received at the post-office all A.'s letters, and delivered them to A. with the exception of one, which the prisoner destroyed, in the hope of suppressing inquiries respecting her character, it was held to be a larceny; "for supposing that it was a necessary ingredient in that crime, that it should be done lucri causa (which is not admitted), there were sufficient advantages to be obtained by the prisoner in making away with the written character." Queen v. Jones, 1 Den. C. C. 180. In another case some servants in husbandry, having the care of their master's team, entered his granary by means of a false key, and took out of it two bushels of beans, which they gave to his horses. Of eleven judges, three were of opinion that there was no larceny; while the eight judges who were for conviction, alleged that by the better feeding of the horses, the men's labor was lessened, so that they took the beans to give themselves ease-which was constructively, at least, lucri causa. Rex v. Morfit, Rus. & Ry. 307. And in still another case where a party named Cabbage, having forced open a stable door, took out a horse, led it about a mile to an old coal pit, and there backed it down and killed it, his object being that the horse might not contribute to furnish evidence against one who was under a charge for stealing it, a majority of the court thought him guilty of larceny, the object of protecting his friend by the destruction of the animal being a benefit or lucri