Page:The American Cyclopædia (1879) Volume X.djvu/173

 LARCENY 167 case. At common law personal property alone could be the subject of this offence ; of lands there can plainly be no larceny; and as the law conceives that everything attached to the land or realty partakes of its character, it would not be larceny, independently of stat- utes, to sever and carry away with felonious intent standing grain, or growing grass, or fruits from trees; or lead or copper fixtures from a building. But if these things were severed at one time and carried away at an- other after an interval of time sufficient to render the two transactions distinctly separate, a larceny would be committed ; for the prop- erty would become by the severance the per- sonal property of the owner of the realty, and rest as such in his possession before the as- portation. The too narrow and technical con- struction of the common law in this respect has been remedied by legislative enactments. It is also essential to the offence that the thing stolen be of some value, though the smallest value, less even than that of the smallest coin, is sufficient. The common law recognizes no value in choses in action, so called, that is, in notes and other personal se- curities. It esteems them mere evidences of valuable rights ; and on the principle that their merely material worth is merged in their representative value, there can be no lar- ceny of such instruments, nor could a suit be maintained even for the value of the paper upon which they were written, unless they had been, by payment or otherwise, rendered void. This defect of the common law has also been remedied, and, by statutes, bank notes, books of account, notes and other valuable securities, are rendered subjects of larceny. The princi- ple of value is also applied in the case of ani- mals known to the law as ferce naturce. It is the rule of the law that animals wild by nature are not subjects of larceny until they are re- claimed, and then only when they are fit for food. By the common law therefore there can be no larceny of dogs and cats and many other animals, however the civil jurisprudence may recognize a right of property in them. A ta- king and a carrying away are also essential to constitute larceny, and an indictment for this crime must charge both these acts. If the par- ty accused have for only an instant of time perfect control over the property, any, even the slightest, removal of the whole of it is suf- ficient. Thus one was held guilty of larceny who had snatched a watch, the guard of which, though for an instant free from the person of the owner, was while being withdrawn by the thief caught and arrested by a button. But where a purse became entangled by its strings with keys in the owner's pocket, though it had been raised from its place and out of the pocket, yet there was not a perfect control of the purse, and consequently no such carrying away as is essential to complete the offence. The required ownership may be either general or special. Stolen goods restolen from a thief may be alleged in an indictment to be either his property or that of the true owner. And it is said that one may commit larceny of his own property, if he take it from the possession of his bailee, with the intent to charge him for its loss. It is further requisite to the constitu- tion of the crime of larceny that there be a co- incidence in point of time of two distinct in- tents, viz., an intent to trespass on another's personal property, and an intent to deprive him of his ownership therein. Therefore, if one too drunken to conceive an intent to steal take property, but surrender it before any such in- tent is entertained, there can be no conviction for larceny. Nor was this crime held to have been committed in a case where, though there was a trespass, the property was taken with the intention of converting only its use to the service of the trespasser. The rule is that the trespass must concur in time with the intent to steal. This rule may seem to be and perhaps is rather technical than reasonable ; but it is firmly fixed in criminal jurisprudence, and a clear apprehension of it is necessary to the right conception of the crime of larceny. Trespass is a wrongful act of force done to the possession of another. Therefore, in respect to larceny, there can be no trespass against an owner who has not the possession of the prop- erty taken. On this principle rests the famil- iar rule of law, that common carriers and oth- er bailees cannot commit larceny of the goods intrusted to them, so long as this relation ex- ists ; for under their contract of bailment they, and not the owners, have the legal possession of the property, and the essential trespass is therefore impossible. For example, the mas- ter of a ship, who steals one of several pack- ages delivered to him to carry, does not commit larceny ; but if he first break the package and then steal part of its contents, the offence of larceny is complete. The distinction between the two cases is clear. It is evident that the bailee must be first divested of his legal posses- sion before the trespass is possible. In the former of the cases proposed, although by stealing the package without breaking its bulk he destroys the privity of contract between himself and his bailor, still the act is commit- ted in respect of goods which at the time are in his legal possession ; the termination of the contract and the act of conversion are simul- taneous. But where the package is first broken, the act of breaking determines the contract of bailment and the right of the bailee to hold the property, for that is on the instant revested in the owner. Any act of conversion of the goods to the bailee's own use, after a trespass upon the owner's legal right has destroyed the tres- passer's right of possession, completes the of- fence of larceny. A distinction is to be ob- served between this legal possession and a mere custody. Thus servants who have a thing in their custody to keep, or clean, or carry, have no right of possession ; their possession is their master's possession, and he may at his own