KEG. v. MANNING 1852. Larceny servant. time to time, when he had finished a lot, his custom was to take them and put them down at the warehouse-door of the prosecutor, outside the warehouse, and very shortly after any bags had been AND SMITH. so left, either he or his wife, but generally his wife, used to come to receive payment for them from the prosecutor. On the night of the 16th July, the prosecutor had a quantity of bags in his warehouse "marked." On the morning of the 17th July, the Master and prisoner Manning went into his master's warehouse and brought out twenty-four of the bags which had been so marked by his master on the previous night, and put them down outside the warehouse, by the door, at the place where Smith used to deposit the bags he brought for the prosecutor, and for which he had to be paid. Shortly after Manning had brought the prosecutor's bags out of his warehouse, and so placed them at the door, Smith's wife came and asked for payment for them, as for bags that her husband had brought that morning. Upon this Smith was sent for, and was told what his wife had said, and the bags, which were then lying where Manning had placed them, were pointed out to him, and he was asked whether he had brought those bags there; he said yes, he had brought them there an hour before, and that his wife had been working at them till twelve o'clock the night before, in order to finish them. "Nay," said the prosecutor, "those bags are mine." "Yes," replied Smith, "they will be yours when you have paid for them." Upon this the prosecutor pointed out to the two prisoners, Manning being then also present, the mark that had been put upon the bags the night before, when they both turned the colour of this (holding up a piece of red blotting-paper), and they were given into custody. The Recorder told the jury that, if they were satisfied that Manning brought his master's bags out of the warehouse, and placed them outside by the door in the manner stated, for the purpose of enabling Smith to receive payment for them from his master, and with the intent that he should do so as if they had been new bags just then finished by Smith, and for which he would be entitled to be paid, that that would be larceny; and that if they were satisfied that this had been so done by Manning, in pursuance of previous concert and arrangement between him and Smith, that Smith, though absent when the bags were so removed out of the warehouse, would be accessary before the fact to the felony. The jury said that they were satisfied that the bags had been so removed out of the warehouse by Manning, for the purpose and with the intention aforesaid, and that the same had been done in pursuance of a previous arrangement between him and Smith, and they found both the prisoners guilty; and the Recorder sentenced the prisoners to be imprisoned in the borough gaol, and to be there kept to hard labour for six months. The question for the opinion of this court is, whether the facts stated and found amounted to larceny. This case came on for argument before Jervis, C. J., Alderson, B., Coleridge, J., Cresswell, J., and Platt, B. Case. REG. v. MANNING AND SMITH. 1852. Larceny Cross appeared in support of the conviction, but was not called upon. No counsel appeared for the prisoners. Master and removed, was an accessary before the fact. servant. Conviction affirmed. COURT OF CRIMINAL APPEAL. January 22, 1853. REG. v. RILEY. (a) Larceny Original taking by mistake—Felonious appropriation. Held, a larceny, inasmuch as the original taking was a trespass, and the A1 T the General Quarter Sessions of the Peace for the county of Durham, held at the city of Durham (before Rowland Burdon, Esq., Chairman), on the 18th day of October, in the year of our Lord 1852, the prisoner was indicted for having, on the 5th day of October, 1852, stolen a lamb, the property of John Burnside. The prisoner pleaded Not Guilty. On the trial it was proved that on Friday, the 1st day of October, in the year of our Lord 1852, John Burnside, the prosecutor, put ten white-faced lambs into a field in the occupation of John Clarke, situated near to the town of Darlington. On Monday, the 4th day of October, the prisoner went with a flock of twenty-nine black-faced lambs to John Clarke, and asked if he might put them into Clarke's field for a night's keep, and upon Clarke agreeing to allow him to do so for one penny per head, the prisoner put his twenty-nine lambs into the same field with the prosecutor's lambs. At halfpast seven o'clock in the morning of Tuesday, the 5th of October, the prosecutor went to Clarke's field, and in counting his lambs he (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. missed one, and the prisoner's lambs were gone from the field also. Between eight and nine o'clock in the morning of the same day, the prisoner came to the farm of John Calvert, at Middleton St. George, six miles east from Darlington, and asked him to buy twenty-nine lambs. Calvert agreed to do so, and to give 8s. a-piece for them. Calvert then proceeded to count the lambs, and informed the prisoner that there were thirty instead of twentynine in the flock, and pointed ont to him a white-faced lamb; upon which the prisoner said, "If you object to take thirty, I will draw one." Calvert however bought the whole, and paid the prisoner 121. for them. One of the lambs sold to Calvert was identified by the prosecutor as his property, and as the lamb missed by him from Clarke's field. It was a half-bred white-faced lamb, marked with the letter "T.," and similar to the other nine of the prosecutor's lambs. The twenty-nine lambs belonging to the prisoner were black-faced lambs. On the 5th October, in the afternoon, the prisoner stated to two of the witnesses that he never had put his lambs into Clarke's field, and had sold them on the previous afternoon, for 117. 12s., to a person on the Barnard Castle-road, which road leads west from Darlington. There was evidence in the case to show that the prisoner must have taken the lambs from Clarke's field early in the morning, which was thick and rainy. It was argued by the counsel for the prisoner, in his address to the jury, that the facts showed that the original taking from Clarke's field was by mistake; and if the jury were of that opinion, then, as the original taking was not done animo furandi, the subsequent appropriation would not make it a larceny, and the prisoner must be acquitted. The chairman, in summing up, told the jury, that though they might be of opinion that the prisoner did not know that the lamb was in his flock until it was pointed out to him by Calvert, he should rule that, in point of law, the taking occurred when it was so pointed out to the prisoner and sold by him to Calvert, and not at the time of leaving the field. The jury returned the following verdict:-The jury say that at the time of leaving the field the prisoner did not know that the lamb was in his flock, and that he was guilty of felony at the time it was pointed out to him. The prisoner was then sentenced to six months' hard labour in the house of correction at Durham; and being unable to find bail, was thereupon committed to prison until the opinion of this court could be taken upon the question, whether Charles Riley was properly convicted of larceny. Liddell, for the prisoner.-Either the ruling of the chairman was wrong, or the finding of the jury amounts to this, that the prisoner took by mistake; and in either case the conviction cannot be sustained. In order to amount to a verdict of guilty, the jury ought to have found that at the time the prisoner took the lamb, he either knew or had reasonable means of discovering the owner; and the court will not intend what the jury have not found. A REG. v. RILEY. 1853. Larceny- mistake. Case. REG. v. RILEY. 1833. Larceny mistake. special verdict is always to be construed most favourably for the prisoner: (1 Hale P. C.) Here the original taking was when the sheep left the field. [POLLOCK, C. B.—Was that a taking at all by the prisoner? Suppose a traveller by mistake packs up a fellow-traveller's goods with his own; and afterwards, upon disTaking by covering them, appropriates them to his own use, is there not at that time a taking by him animo furandi?] If there was no taking by the prisoner when the sheep left the field, it is at all events clear that the lamb did not remain in the prosecutor's possession; it was therefore animal vugans, and like waif or stray, of which the taking would not be larceny according to Thurborn's case (1 Den. C. C. 378.) If there was no taking by the prisoner in the first instance, then that case would apply; and there the rule is laid down that, in order to constitute larceny, the finding of the lost goods must be under such circumstances that the finder may be presumed to have known the owner, or to have had the means of ascertaining who the owner was. The jury have not found that that was the case here. This, however, is rather a taking by mistake in the first instance; and in 1 Hale P. C. 506, 507, it is said "If the sheep of A. stray from the flock of A. into the flock of B., and B. drives them along with his flock, or by pure mistake shears them, this is not a felony; but if he knows it to be another's, and mark it with his mark, this is an evidence of a felony;" that is, evidence of a felony at the time when the thing taken leaves the possession of the prosecutor. The same law is laid down in 2 East P. C. 661; and in Reg. v. Cook (2 Russ. on Crimes, 12 (Ed. Greaves.) Cresswell, J., told the jury, that if a person find an animal straying in a road, and take it with intent to dispose of it to his own use, it is a larceny; and that in that case the question for their consideration was, whether the prisoner so took the ewe and the lamb, or whether they got mixed with the sheep he was driving, and he took them away by mistake. The facts were, that the prosecutor's flock of sheep had strayed through a gap into a road, and had all been recovered except the ewe and lamb mentioned in the indictment, which were afterwards seen grazing in a green lane, along which the prisoner was seen driving some sheep, and the prisoner some days afterwards sold the ewe and lamb, about ten miles from the place. If the original taking is by mistake, the subsequent appropriation cannot be larceny: (Reg. v. Thristle, 1 Den. C. C. 502.) In that case the prisoner, who was a watchmaker, had received the watches, which he was charged with stealing, from the prosecutor for the purpose of regulating them, and afterwards left the place, and disposed of the watches. He was held not guilty of larceny. Pollock, C. B., in delivering the judgment of the court, said "The question reserved seems to be, whether, if the watches had come into the hands of the prisoner rightfully in the first instance, that is, without an animus furandi on his part, (b) the subsequent wrongful appropriation of (b) This expression appears inaccurate according to the decision in the principal case. REG. V. RILEY. 1853. LarcenyTaking by mistake. them would constitute larceny? The court is of opinion that it would not." Here the possession was obtained in the first instance without any animus furandi. [WILLIAMS, J.-Assume that there had been no animus furandi at all in this case; would there not have been a continuing trespass, which would have supported a civil action? There was in fact no animus furandi at first, and therefore no felony then; but there was afterwards, and then there was a trespass animo furandi, which is larceny.] If the trespass began when the sheep left the field, then the rule applies that the first act of taking must be felonious. [POLLOCK, C. B.-The case is silent as to any act done by the prisoner, until he disposes of the prosecutor's lamb. There is no statement that he drove it away with his own.] Then the rule as to animalia vagantia applies. [PARKE, B.-Upon the facts stated, I think it sufficiently appears that the prisoner must have driven it away with his own, and "drove away" is the apt term for describing a larceny of sheep. It is "cepit et effugavit" in the old forms; and as to horses cepit et abduxit. Here there was a trespass at first: and it continued during the whole time that the prisoner had the lamb. If he had driven it into another county, it might have been alleged in the indictment that he took it there, so that whenever he chose to appropriate it, the taking became felonious.] Argument. That seems inconsistent with the judgment in Thurborn's Case. [PARKE, B.-No; that was quite a different case. It was a simple case of finding lost goods, the owner of which was not known to the prisoner, nor reasonably ascertainable by him at the time of the finding; and the distinction is, that the finding gives a title against all the world but the real owner. There was no trespass in the original taking; trover only could be maintained.] Preston's Case (2 Den. 360,) seems to have carried the doctrine further. There the court held that the animus furandi must exist at the time when the article first comes into the possession of the prisoner; and Martin, B., put the very case of a chattel taken originally by mistake; and afterwards wrongfully appropriated. [PARKE, B.—I am not disposed to agree that that would not be larceny.] The court appeared to be clearly of opinion that it would not; and Talfourd, J. expressly says that a mere movement of the mind cannot amount to a taking. [POLLOCK, C. B. -The operation of the mind in conjunction with the act of selling? As soon as the prisoner found the lamb amongst his own he sold it.] Leigh's Case (2 East P. C. 694) is an important authority on the point, that the conversion of goods is not felonious, unless the original taking was animo furandi. There the prosecutor's shop being on fire, the prisoner and other neighbours assisted in removing the goods with the prosecutor's consent. On the following morning, she denied that she had any of the prosecutor's things, but upon search, they were found concealed in her house. The jury having found that when she first took the goods from the shop, she had no evil intention, but that such evil intention came |