authority. These two parties were on very intimate terms, Mr. T. had more than once accepted bills for the prisoner's accommodation, and on a former occasion, when the prisoner had used his name, paid the amount and found no fault, and the prisoner repaid him in the course of a week. You will consider whether the prisoner having to deal with the name of a person with whom he was so very intimate fairly considered from what had before occurred that he had authority to do as he did, and make use of the name of Mr. T. upon the face of this bill. If you think so and that the prisoner acted bona fide, and did not mean to defraud or impose upon any one, you ought to acquit him." The prisoner was acquitted.

In R. v. Beardsall,1 it was held that a letter from the prisoner to the prosecutor left unanswered was sufficient to warrant the jury in presuming a bona fide belief in the prisoner that he had authority to use the prosecutor's name. The prisoner was a nephew of the prosecutor, and had been employed as his attorney to conduct several matters in which the prosecutor was engaged. One of these was the winding up of the affairs of one Smith, who had made an assignment to the prosecutor, as trustee, for the benefit of his creditors. The prosecutor had advanced, upon security, the amount necessary for paying Smith's creditors the composition 5s. on the pound; and for the purpose of paying the dividends due to each, blank checks upon the branch of the Nottingham and Nott's Bank at Mansfield were given to the prisoner by the prosecutor, already signed by him, for the former to fill up with the amounts ascertained to be due to the several creditors, and to pay over to them. Some four checks were thus completed and handed over and the business of winding up Smith's affairs was completed in 1855, but several of the signed blank checks remained in the prisoner's hands, and the forgery imputed was the filling up by the prisoner of one of the checks with an amount of £120 payable to himself, without any authority from the prosecutor. It was proved that subsequently to the winding up of Smith's affairs no express authority was given by the prosecutor to the prisoner to fill up or use the checks in his hands. In order to show that the prisoner had no intent to defraud, it was elicited in cross-examination by Adams that there had been other matters professionally transacted by the prisoner for the prosecutor; among which was a matter of Hall's Trust and that a bill of costs to a large amount had been sent in to the prosecutor, who had, however, lent the prisoner money at various times; and final settlement was proved to have taken place, by the production of the prisoner's receipt to that effect. While the prisoner's connsel was directing his examination towards establishing that this was not a settlement of all accounts between them, but of one particular charge, great anxiety was expressed by the prisoner to go into an inquiry as to family matters, respecting the relevancy of which his counsel was not satisfied, who consequently retired from the conduct of the case. Many irrelevant questions were put by the prisoner himself, but he succeeded in eliciting from the prosecutor that no payment but the one mentioned had been made by the prosecutor for law charges, and he did not deny having received such account and demand in the matter of 'Hall's Executors,' (the words 'Hall's Executors,' appeared written in a corner of the check in question). The prisoner had written the following letter, to which the prosecutor made no reply:

"I shall be glad if you will let me have the whole or part of the amount. Let me hear from you by return of post, or I will draw on you for the amount.

11 F. & F. 529 (1857).

It is time it was paid. I shall take your silence as an assent to my requirement unless I hear the contrary. Yours, etc."

Lord CAMPBELL, C. J.-There must be a verdict of

-

Not guilty.

§ 160. Larceny Mistake of Law. So a mistake of law may be a defence to a prosecution for larceny.1

§ 161. Larceny - Honest Claim to Goods. In Morningstar v. State, the defendant was indicted for the larceny of "a large stick of square hewn fine timber." On the trial he asked this charge: "If the jury believe from the evidence that the defendant had a claim, honestly entertained, to the stick of timber in question, he was not guilty of larceny though he knew at the time and prior thereto of an adverse claim by another person." This was refused, and he was convicted. On appeal a new trial was granted. "The charge asked in this case," said STONE, J., "asserts a correct legal proposition, and should have been given, if there was any evidence before the jury tending to prove that the defendant had a claim, honestly entertained, to the stick of timber in question.3

"There was some testimony tending to show that defendant had some claim to the timber, under his alleged purchase from the 'Jordan boys.' Whether he removed the timber under this claim, whether he honestly believed he acquired the timber by virtue of his alleged purchase; or whether he was resorting to this claim of purchase as a pretext, were questions for the consideration of the jury. To the presiding judge, the testimony given may seem weak, or suspicious, or may appear to be entirely overborne by other testimony more satisfactory to his mind. The law has not made him the judge of the weight of evidence. If the testimony be legal, and pertinent, and tend, no matter how feebly, to establish any material fact in the issue, it is the right of the prisoner to have it passed upon under an appropriate charge to the jury. The charge should have been given."

In R. v. Wade, the prisoner was charged with larceny under the following circumstances: The prosecutor was a laboring man, and the prisoner a traveling umbrella mender; and it appeared that on the 18th of November he accosted the wife of the prosecutor, asking her if she had any umbrellas to mend. She replied she had, and he said that he would do it cheap-for two or three half-pence. Accordingly he repaired it, and when done demanded nine pence for his labor; the umbrella had then been re-delivered to the prosecutor's wife, who refused to pay the demand. The prisoner declined to take 2d. which was offered to him, rushed upstairs, where the umbrella had been deposited, and took it away with him. In reply to the prisoner, the wife denied that he offered to restore the umbrella to its original condition. The prisoner, in defence, stated that he had no intention of stealing it, but merely took it to secure being paid.

BLACKBURN, J. (to the jury). The prisoner had a right to keep the umbrella until he had been paid for the trouble he had been put to in repairing it. The

1 R. v. Reed, 1 C. & M. 316 (1841); R. v. Southern, R. & R. 444 (1821); State v. Homes, 17 Mo. 379 (1852); R. v. Hollyway, 41 Ia. 200. 2 55 Ala. 148 (1876).

32 Whart. Am. Cr. L. secs. 1769, 1770; Spivey v. State, 26 Ala. 103; Kirksey v. Fike, 29 Ala. 208.

41 Brick. Dig. 338, sec. 42; Waum v. Keiffer, 81 Ala. 136; Bank of Montgomery v. Plannett, 37 Ala. 222; M. & O. R. Co. v. Hopkins, 41 Ala. 486; Dill v. State, 25 Ala. 15 11 Cox, 549 (1869).

question for them to consider was, was he honestly claiming his right when he removed it from the house? If it was honestly done, that would not be stealing; but, on the other hand, if they were of opinion that it was a mere colorable pretense to obtain possession, then it would be larceny. It did not matter whether anything was done to him if at the time he took it, he honestly intended to hold it as a security for his alleged lien. Not guilty.

In Commonwealth v. Weld,1 W. was indicted for the felonious taking of a deed. It appeared that W. had contracted verbally to sell certain real estate to B., that they met to settle the contract, and agreed upon a final meeting for that purpose; that in the meantime W. delivered to B. confidentialy a deed that he might ascertain its correctness, neither party considering the business settled; that B. gave the deed to his counsel to examine the title and if satisfactory to leave it at the registry to be recorded which was done; that upon the meeting for a final settlement at the registry office, a dispute arose between the parties on a collateral point, and W. asked the register for the deed, and on receiving it destroyed it, calling upon those present to witness the act. It was held that if W. honestly thought he had a right to the paper he could not be guilty of a felonious intent. In charging the jury, THATCHER, J., said: “The charge against the defendant for which he is now on trial, is for stealing, on the 19th of June, 1827, a deed in the register's office, which deed was either the property of Henry Allyne, the register, or of Abraham Bird, the grantee who is named in it.

"To constitute the crime of larceny, there must be the wrongful or fraudulent taking and carrying away of the personal goods of another from any place, with a felonious intent to convert them to the taker's own use, and make them his own property, without the consent of the wner. If the property taken is not the property of the person who is described to be the owner in the indictment, the party must be acquitted, because the judgment would not be a bar to a second indictment for the same offence. Therefore, the questions raised by the counsel for the defendant, whether the instrument in this case was a deed, and whether, by the acknowledgment and recording, it had become the property of tne grantee or of the register, are proper to be considered. But suppose this deed had been taken by a third person, without any pretense of right, would it be material whether there had been a formal or final delivery? It seems to me that the circumstance, that the deed had not been delivered to be recorded, but only confidentially to be examined, and for investigating the title, and that there was to be a subsequent meeting for the purpose of a final settlement, goes to the intent, and tends to show that the defendant might have reasonably believed that as he had not delivered the deed or received the consideration, he might innocently, as between himself and Bird, reclaim the deed. I think that though it was in the possession of the register, he might have delivered back the deed on the consent of both parties, and on finding that it had come to him by mistake. While the deed remained in possession of the defendant, it was his property. It could not be Bird's property, until a delivery to him without condition. Still the delivery to him was such, that he might have maintained trespass for it against a third person; so it was sufficiently his property as to be so described in an indictment against a third person. It was sufficiently Allyne's property to be described as such, if the defendant had taken it for the purpose of charging him with the loss. Suppose that the defendant had taken

1 Thatch. Cr. Cas. 157 (1827).

it clandestinely, without the knowledge or consent of Bird, and with an intent to defraud him, as by refusing to execute a new deed, it would have been a felony. But in the present case the strong ground of defence rests upon the failure of evidence to prove the felonious intent. A contract relative to the sale of an estate existed between the defendant and Bird, which was not, however, in writing. They met to settle the contract, and agreed upon another and final meeting for this purpose. But in the meantime the defendant delivered to Bird a deed which he had executed, that Bird might ascertain its correctness and the state of the title. It was delivered confidentially, and neither party considered the business as settled. When they met pursuant to the appointment for a final settlement, a dispute arose between them on a collateral point; in consequence of which the defendant reclaimed his deed, and upon Bird's refusal of it, took it without leave and tore it in pieces in presence of several persons, declaring that it had been obtained from him improperly, and requiring all to take notice of the act. If he was in error on this subject and acted improperly, still if he honestly thought that he had a right to the paper, it excludes the idea of a felonious taking. It is a case to be settled in a civil action between the parties, and not under an indictment for larceny. It will not be safe to convict the defendant.

The jury found the defendant not guilty. Commonwealth v. Robinson,1 was a similar case, the prisoner being acquitted by the jury. The charge of THATCHER, J., contain the facts and the law: "The charge against the prisoner is that he on the 19th of February 1826, stole the sum of ninety dollars in bank bills, the property of William Lovering, in his possession, and in his dwelling-house. It is what is denominated in law a larceny, and being done in a dwelling-house, it is for that cause of an aggravated character. This offence is defined to be the felonious taking of the goods of another, without his consent and against his will, and with intent to convert them to the use of the taker.' It is not every wrongful taking of the goods of another, without his consent and against his will, and even with the intent to convert them to the use of the taker, that will constitute a felony. Because they may be taken under an erroneous supposition of right from the true owner, in which case, although it would be a trespass, yet it would not be a felony; and although a trespass is always included in a felony, yet it by no means follows, that every trespass is a felony. An officer, having a precept to attach the goods of A., takes the property of B., under a belief that they belong to A. It is a trespass in the officer, and the party whose goods have thus been taken, has his remedy against the officer and his employer, in a civil action. But if an officer, or any other person, should knowingly and fraudulently avail himself of a civil process to take the goods of another, it would be a felony, because the crime consists in the guilty intention.

"It is the mind,' says Lord Hale,2 that makes the taking of another's goods to be a felony, or a bare trespass only, but because the intention and mind are secret, the intention must be judged by the circumstances of the fact, and though these circumstances are various and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in this case. If A., thinking he hath a title to the horse of B., seizeth it as his own, this makes it no felony but a trespass, because there is a pretense; but yet this may be but a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly, or being charged with the goods denies it.

1 Thatch. Cr. Cas. 230 (1830).

1 Hale's P. C. 508.

"If A. takes away the goods of B. openly, before him or other persons (otherwise than by apparent robbery), this carries with it an evidence only of a trespass, because done openly in the presence of the owner, or of other persons that are known to the owner.' 1 In a modern case, tried in England before Bayley, J., the prisoner was convicted of stealing sundry articles of female apparel. He had entered the house in the night time, through a window which was open, which belonged to a young girl whom he had seduced, and carried them to a barn, where he and the girl had been twice before. The jury thought the prisoner's object was to induce the girl to go again to the barn that he might meet her there, but that he did not mean ultimately to deprive her of the property. And it was held by the twelve judges that the taking was not felonious. Here was a wrongful taking, coupled with a wicked intent, to induce the female to commit an unlawful act. But the intent not being, in the opinion of the jury, ulitmately to deprive her of her apparel it was not felony. "These cases serve to show that it is the duty of the jury to look into all the circumstances, and to form an opinion of the intent which actuated the party at the time, and whether it was to steal. However faulty a person may be, and however he may act against law in other respects, yet if, in the judgment of reason and charity, he did not mean to steal, or if it be doubtful in the mind of a jury whether that was his intent, it is their duty to acquit him. But you are always to remember that the law is no respecter of persons; and that it is to be meted out to all alike, whether they are rich are poor, whether they stand before you solitary and friendless strangers, or whether they are surrounded hy an array of anxious and powerful friends. In all criminal accusations, it is the duty of the government to prove the guilt of the prisoner. In the present case, they rely mainly on the testimony of William Lovering, from whose possession the money is charged to have been taken. But the distance of time since the transaction took place, is a circumstance which can not have escaped your notice. While it leads to the inquiry, why was not the complaint made at an earlier day? it is certainly most unfavorable for the elucidation of the truth. Had the defendant taken to flight, and remained absent for these four years, to avoid a prosecution; had the crime been committed, but the individual remained unknown, till recent circumstances led to his discovery, it would sufficiently account for the delay. But the defendant in this case was well known, and it does not appear that he has absented himself for this cause for a day. Every fact was known to Lovering four years ago, and he had professional advice. If he knew that the defendant had stolen his money, he ought to have prosecuted him then, and it was an offence in him to compound and settle the prosecution. In the language of the law, the civil injury to the party was merged in the crime against the State. This court holds its monthly sessions, not only for the convenience of the public to clear the jail, and to meet out justice speedily to offenders, but for the safety of parties accused; that complaints may be made soon after the commission of offenses, and that they be tried while the facts are fresh in the memory of witnesses, and while they may be supposed to be under a proper impression. But the ends of justice are in great danger of being defeated by unreasonable delay. I may add, if a party, injured by the act of another, treats it at the time as a civil wrong, it is fair to infer that that was the true character of the transaction. And certainly it

1 The judge then referred to the case of Commonwealth v. Weld, ante, p. 569.

2 Dickenson's Case, R. & R 420.