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§ 752 a. Owner's Non-consent to taking. — If, except under certain special circumstances which vary the rule only to outward appearance, the owner of a chattel consents to another's taking it, the latter cannot by the taking commit larceny thereof. But such consent is, at the common law, matter simply of defence, and the absence of it does not enter into a prima-facie case. Hence non-consent is not averred in the indictment, and it need not be proved. But in a few of our States, — as, for example, in Texas, — there are, created by statutes, larcenies a part of the definition whereof is, “ without the consent of the owner ; under which statutes, therefore, non-consent must be alleged and proved. We have cases which seem to hold it necessary to call the owner or his agent in custody to prove the non-consent; but, however desirable practically this may be, the better doctrine accepts, as adequate in law, circumstantial evidence and the testimony of other witnesses. The owner's declarations, subsequent to the alleged larceny, are but hearsay, and are not admissible.5

§ 753. Production of Stolen Thing. If the thing stolen is, as it often will be, in the possession of the officers of the law, it may be exhibited to the jury, and the witness may have it in his hands while delivering his testimony. But its presence in court is not legally necessary. Even

Written Instrument. Where the thing alleged to be stolen is an instrument in writing, it is presumed to be under the control

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413; Peoples v. Devault, 11 Heisk. 431; 3 The State v. Morey, 2 Wis. 494 ; Jackson v. The State, 54 Ala. 284. Hus- The State v. Moon, 41 Wis. 684, 686 ; band and Wife. - Personal property in The State v. Osborne, 28 Iowa, 9, 10, 11; the hands of a married woman is, in the Rex v. Rogers, 2 Camp. 654. absence of controlling evidence, presumed 4 McMahon v. The State, supra; Ersto be the husband's; though a statute kine v. The State, supra; Trafton v. The authorizes wives to hold like property to State, 5 Texas Ap. 480; Foster v. The their separate use. Commonwealth v. State, 4 Texas Ap. 246; Welsh v. The Williams, 7 Gray, 337.

State, 3 Texas Ap. 422 ; Rex v. Allen, 1 i Crim. Law, I. $ 260, 262, 263, 682, Moody, 154; Rex v. Hazy, 2 Car. & P. 458. 583, 585; II. $ 808–822.

And see, as to the principle, CommonMcMahon v. The State, 1 Texas Ap. wealth v. James, 1 Pick. 375. 102 ; Erskine v. The State, 1 Texas Ap. 6 Sneed v. The State, 4 Texas Ap. 405. I have not examined the cases suf. 614. ficiently to say absolutely, that, in no 6 The State v. Lull, 37 Maine, 246 ; case, in any State, has the proof of non- Reg. v. Sargent, 6 Cox C. C. 499. And consent been required on common-law. see Vol. I. § 965. The jury may be perprinciples. But any case so requiring mitted, not only to see it, but to examine must have proceeded on a misapprehen- it with a magnifying glass. Short v. The sion, and it should be overruled.

State, 63 Ind. 376.

of the defendant; yet, contrary to what we have seen to be the rule in forgery,' no notice to him to produce it is required as foundation for admitting proof by parol of its contents. For it is within, and forgery without, the principle prevailing alike in criminal causes and in civil, that an allegation against one of having taken into his possession a written thing in controversy is notice to him to have it at the trial.3

$ 754. Other Evidence. — Questions are always arising, the solution whereof depends on the general rules of evidence, rather than those pertaining specially to larceny. And —

1 Ante, $ 433, 434.

ant's acts and declarations are admissible ? Commonwealth v. Messinger, 1 Binn. or not in his favor, according as they are 273; Moore v. Commonwealth, 2 Leigh, of the res gestæ, or otherwise. The State 701; McGinnis v. The State, 24 Ind. 500; v. Shermer, 55 Misso. 83; Maddox v. The Reg. v. Brennan, 3 Crawf. & Dix C. C. State, 41 Texas, 205; Dixon v. The State, 109, 110; People v. Holbrook, 13 Johns. 2 Texas Ap. 530; Foster v. People, 18 90, 92; Rex v. Aickles, 1 Leach, 4th ed. Mich. 266. As to the admission of his 294, 297, 2 East P. C. 675.

acts and declarations against him, see 8 People v. Holbrook, supra; How v. Shaw v. The State, 3 Sneed, 86; The Hall, 14 East, 274 ; Scott v. Jones, 4 State v. arton, 19 Misso. 227 ; People v. Taunt. 865; Bucher v. Jarratt, 3 B. & P. Williams, 24 Mich. 156; White v. The 143; Jolley v. Taylor, 1 Camp. 143; Rex State, 11 Texas, 709, 773; The State v. v. Moors, 6 East, 419, 421, note ; The Carter, 72 N. C. 99. Foot-prints. State v. Mayberry, 48 Maine, 218; Rose Campbell v. The State, 55 Ala. 80. v. Lewis, 10 Mich. 483; Hart v. Robinett, Wagon-tracks. — The State v. Folwell, 5 Misso. 11; Nealley v. Greenough, 5 14 Kan. 105. Absconding with ProFost. N. H. 325; Luckett v. Clark, Litt. ceeds. · Commonwealth v. Hurd, 123 Sel. Cas. 178; Hays v. Riddle, 1 Sandf. Mass. 438. Signs and Tokens. — The 248; Dana v. Conant, 30 Vt. 246; Ham- court may refuse to compel a witness to mond v. Hopping, 13 Wend. 505; Hardin disclose what he knows of the signs and v. Kretsinger, 17 Johns. 293 ; Edwards tokens of a class of thieves. The State v. Bonneau, 1 Sandf. 610 ; Forward v. v. Wilson, 8 Iowa, 407. Person giving Harris, 30 Barb. 338; Pickering v. Meyers, Information. — So, from considerations 2 Bailey, 113; Hamilton v. Rice, 15 of public policy, the witness from whom Texas, 382. And see Morgan v. Jones, the property was stolen will not be re24 Ga. 155; Mitchell v. Jacobs, 17 I. quired to disclose the names of those on 236; Kellar v. Savage, 20 Maine, 199; whose information he took steps against Gray v. Kernahan, 2 Mill, 65.

the defendant. The State v. Soper, 16 4 Thus, Openness or Concealment,- Maine, 293. Still other Questions. in the taking, may be a significant cir. For other questions of evidence, see Bencumstance. Hall v. The State, 53 Ala. nett r. The State, 52 Ala. 370; The State 634; Stuart v. People, 73 III. 20; Hart v. v. Kellerman, 14 Kan. 135; The State v. The State, 57 Ind. 102. Felonious In- Staples, 47 N. H. 113; People v. Robles, tent - must be shown. It, or its ab- 34 Cal. 591 ; Commonwealth v. Annis, 15 sence, may appear in the circumstances. Gray, 197; Debbs v. The State, 43 Texas, Mason v. The State, 32 Ark 238; Hart 650; Reg. v. Hilditch, 12 Cox C. C. 131, v. The State, supra ; Elswick v. Com- 2 Eng. Rep. 194; Long v. The State, 22 monwealth, 13 Bush, 155 ; Camplin v. Ga. 40; Rex v. Semple, 1 Leach, 4th ed. The State, 1 Texas Ap. 108; Berry v. 420, 424, 2 East P. C. 691; Griggs v. The The State, 10 Ga. 611. Acts and Decla- State, 58 Ala. 425; People v. Morrigan, rations — (Res Gestæ). The defend. 29 Mich. 4.

Sufficient. The evidence must be sufficient in degree; covering, with adequate proofs, the entire allegation.

1 For evidence sufficient and insuffi- N. C. 335; Pitts v. The State, 8 Texas cient in law to justify a conviction, see Ap. 210; Hines v. The State, 51 Ga. 301; The State v. Watson, 7 S. C. 67; The Moore v. The State, 2 Texas Ap. 350 ; State v. Fritchler, 54 Misso. 424; Reg. Smith v. The State, 2 Texas Ap. 477 ; v. Starr, 40 U. C. Q. B. 268; Reg. v. Walker v. The State, 3 Texas Ap. 70; Walker, Dears. 280, 6 Cox C. C. 310, 25 Brown v. The State, 2 Texas Ap. 139; Eng. L. & Eq. 568 ; Gardiner v. The Macino v. People, 12 Hun, 127; The State, 33 Texas, 692; Thurman v. The State v. Hunt, 45 Iowa, 673; The State State, 33 Texas, 684; McCourt v. People, v. Davis, 9 Vroom, 176; Moore v. The 64 N. Y. 583; United States v. Emerson, State, 40 Ala. 49; The State v. Freeman, 6 McLean, 406; McHenry v. The State, 72 N. C. 521. 40 Texas, 46; The State v. Vinson, 63

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CHAPTER XLI.

LARCENY, AS TO QUESTIONS OF PRACTICE.

$ 754 a. Introduction.
755–763. Restitution of the Stolen Goods.
764–769. The Verdict.

770. Other Questions.

$ 754 a. How the Chapter divided. We shall consider, I. The Restitution of the Stolen Goods; II. The Verdict; III. Other Questions.

1. The Restitution of the Stolen Goods.

a

§ 755. Old Law (On Appeal). — Under the ancient common law, a judicial order for restitution of the stolen goods by the thief to the owner could be had only on the now-obsolete proceeding by appeal. But, $ 756. Stat. 21 Hen. 8. — In 1529, it was by 21 Hen. 8, c. 11, pro

- 8 vided, that, if one from whose“

“person or otherwise

“ felon” should “rob or take away any money, goods, or chattels," caused, by evidence which he gave or procured, the attainder of the felon, he should be restored to his said money, goods, and chattels ; and that as well the justices of jail delivery as other justices afore whom " was the attainder “ have power by this present act to award from time to time writs of restitution for the said money, goods, and chattels, in like manner as though any such felon or felons were attainted at the suit of the party in appeal.” 2 $ 757. With us. — This statute is of date sufficiently early to

be common law in our States. Kilty deems it to have been of

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1 2 Hawk. P. C. c. 23. & 49, 55; Reg. and writ for restitution against purchasers v. London, Law Rep. 4 Q. B. 371 ; 8. O. of the goods in market overt, Burgess v. nom. Walker v. London, 11 Cox C. C. Coney, Trem. P. C. 315. And see, for a 280. And see the reporter's note to Gim- form of an order held to be in excess of son v. Woodfull, 2 Car. & P. 41, 43. the power of the judge, Reg. v. Pierce, 2 See, for a form of the proceedings Bell C. C. 235, 8 Cox C. C. 344.

force in Maryland till superseded by a local one ;/ and, though not in the list by the Pennsylvania judges,2 its omission is probably from some cause not affecting the general question. Later legislation, founded upon it, has in England taken its place; and so it has generally in our States.

§ 758. How the Statutes are construed :

Liberally. — These statutes, being remedial, and not penal, should be construed liberally. Hence, —

Things taken in Exchange. - If the thief has bought with what he stole - as, for example, stolen bank-bills — other personal property, the owner may maintain trover for the latter. Or, on conviction, the court will order restitution of the latter, the same as it would of the stolen things had they remained in their origi'nal form. That the owner can follow the stolen goods into land has been both affirmed 6 and denied.i

§ 759. What Larcenies within Statute (Robbery Compound Larcenies). — It is perceived that the statute of Hen. 8 extends, by its terms, not only to simple larcenies, but also to the compound ones, including robbery; yet to no indictable takings which are only misdemeanor.

$ 760. Neglect to prosecute. — It appears that, by the English practice, one may debar himself of his rights under this statute of Hen. 8, by dilatoriness and neglects in the prosecution of the offender. For the statute has the words, “ in like manner as though any such felon or felons were attainted at the suit of the party in appeal ;” and, says Chitty, “it was only by prompt and vigorous exertion that he could obtain his goods on an appeal.” 9 § 761. Taken from Servant. — “If,” continues Chitty,10 “ the

“” property has been taken from a servant, and the latter, by the

i Kilty Rep. Stats. 160.

to which, see a note to this section in the ? Report of Statutes, 3 Binn. 599. 2d ed.

3 Stat. Crimes, $ 120, 192; Golightly 6 Newton v. Porter, 5 Lans. 416. v. Reynolds, Lofft, 88.

7 Campbell v. Drake, 4 Ire. Eq. 94. 4 Golightly v. Reynolds, supra; Lance 8 Ante, § 198 ; Rex v. De Veaux, 2 v. Cowan, 1 Dana, 195. And see Scat- Leach, 4th ed. 585 ; 8. C. nom. Rex v. tergood v. Sylvester, 15 Q. B. 506; Hor Devaux, 2 East P. C. 789, 839; Parker v. wood v. Smith, 2 T. R. 750; Gimson v. Patrick, 5 T. R. 175. See Robinson v. Woodfull, 2 Car. & P. 41.

Dauchy, 3 Barb. 20. 5 Lance v. Cowan, supra ; Rex v.

9 1 Chit. Crim. Law, 818, referring, Powell, 7 Car. & P. 610. And see Rex among other places, to 1 Hale P. C. 510; v. Rooney, 7 Car. & P. 515. The Massa- 2 Hawk. P. C. c. 23, § 56. chusetts court has denied this. Com- 10 i Chit. Crim. Law, 820. monwealth v. Boudrie, 4 Gray, 418. As

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