I. Larceny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person.

And, first, of simple larceny: which when it is the stealing of goods above the value of twelvepence, is called grand larceny; when of goods to that value, or under, is petit larceny: offences which are considerably distinguished in their punishment, but not otherwise.

Simple larceny then is, "the felonious taking, and carrying away, of the personal goods of another." At present we shall examine the nature of theft, or larceny, as laid down in the foregoing definition.

1. It must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larceny. As, if A lends B a horse, and he rides away with him; or, if I send goods by a carrier, and he carries them away; these are no larcenies. But if the carrier opens a bale or 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, these are larcenies 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. 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 a civil trust. But if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at common law. 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, and so it is declared to be by statute 3 & 4 W. and M. c. 9. if a lodger runs away with the goods from his ready-furnished lodgings. 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 intent to charge the hundred with the loss according to the statute of Winchester.

2. There must not only be a taking, but a carrying away cepit et asportavit was the old 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 sufficient asportation, or carrying away.

3. This taking, and carrying away, must also be felonious; that is, done animo furandi: or, as the civil law expresses it, lucri causa. This requisite, besides excusing those who labour under in

capacities of mind or will, indemnifies also mere trespassers, and other petty offenders. 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. 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

many things is still, merely a trespass which depended on a subtilty in the legal notions of our ancestors. 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 comes again at another time, when they are so turned into personalty, and takes them

away; it is larceny: and so it is, if the owner, or any one else has severed them. And now, by the statute 4 Geo. II. c. 32. and 42 Geo. III. c. 67. to steal, or rip, cut, or break with intent to steal, any lead, or iron bar, rail, gate, or palisado, fixed to a dwelling-house or out-house, or in any court or garden thereunto belonging, or to any other building, is made felony, liable to transportation for seven years: and to steal, damage, or destroy underwood or hedges, and the like, to rob orchards or gardens of fruit growing therein, to steal or otherwise destroy any turnips, potatoes, cabbages, parsnips, pease, or carrots, or the roots of madder when growing, are punishable criminally, by whipping, small fines, imprisonment, and satisfaction to the party wronged, according to the nature of the offence. Moreover the stealing by night of any trees, or of any roots, shrubs, or plants to the value of 5s. is, by statute 6 Geo. III. c. 36. made felony in the principals, aiders, and abettors, and in the purchasers thereof knowing the same to be stolen: and by statutes 6 Geo. III. c. 48. and 13 Geo. III. c. 33. the stealing of any timber trees therein specified, and of any root, shrub, or plant, by day, or night, is liable to pecuniary penalties for the two first offences, and for the third is constituted a felony liable to transportation for seven years.

Bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larceny might be committed; being of no intrinsic value, and not

importing any property in possession of the person from whom they are taken. But, by the statute 2 Geo. II. c. 25. they are now put upon the same footing with respect to larcenies, as the money they were meant to secure. By statute 15 Geo. II. c. 13, officers or servants of the bank of England, secreting or embezzling any note, bill, warrant, bond, deed, security, money, or effects, intrusted with them or with the company, are guilty of felony without benefit of clergy. The same is enacted by statute 24 Geo. II. c. 11. with respect to officers and servants of the South-sea company. And, by statute 7 Geo. III. c. 50. if any officer or servant of the post-office shall secrete, embezzle, or destroy any letter or packet, containing any bank-note or other valuable paper particularly specified in the act, or shall steal the same out of any letter or packet, he shall be guilty of felony without benefit of clergy. Or, if he shall destroy any letter or packet with which he has received money for the postage, or shall advance the rate of postage on any letter or packet sent by the post, and shall secrete the money received by such advancement, he shall be guilty of single felony.

Larceny also cannot be committed of such animals, in which there is no property either absolute or qualified as of beasts that are feræ naturæ, and unreclaimed, such as deer, hares, and conies, in a forest, chase, or warren; fish, in an open river or pond; or wild fowls at their natural liberty. But if they are reclaimed or confined and may