A Treatise on Criminal Law as Applicable to the Dominion of Canada

the owner. (a) Larceny has been also defined as the wrongful or fraudulent taking, and carrying away, by any person, of the mere personal goods of another, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner. (b)

The goods taken must, in the absence of any express statutable enactment, be personal goods, for none other can be the subject of larceny at common law. (c) Bonds, bills, etc., being mere choses in action, are not the subject of larceny at common law, for they are of no intrinsic value. (d)

The 32 & 33 Vic., c. 21, s. 15, et seq. now alters the law in this respect. Section 16 contains provisions as to the form of the indictment under it. By s. 18, it is not necessary to allege that the article, in respect to which the offence is committed, is the property of any person.

A party cannot commit larceny of a bond made by another person to himself, and, especially, he could not be guilty of larceny in stealing a bond from the obligor, because a bond in the hands of the obligor could be of no value to him, as a bond, under any possible circumstances; and when the 2 Geo. 2, c. 25, was in force, no other than a bond for the payment of money could be the subject of larceny. (e)

Certificates treated and dealt with on the London Stock Exchange, as scrip of a foreign railway, are “valuable security" within the 7 & 8 Geo, 4, c. 29, s. 5, and the subject of larceny. (ƒ)

On an indictment for stealing a piece of paper, the de

(a) Cr. Law Comrs. 3rd Rep.

(b) Reg. v. M'Grath, L. R. 1 C. C. R., 209, per Kelly, C. B.; 39 L. J. (M. C.) 7.

(d) Ib. 317.

(e) Caverley v. Caverley, 3 U. C. Q. B. O. S. 341, per Robinson, C. J.

(f) Reg. v. Smith, 2 U. C. L. J. 59; Dears. C. C. 561.

fendant could not be convicted of stealing an agreement, though unstamped, for building certain cottages, the work under which agreement was actually in progress. (a)

Larceny cannot be committed of things which are not the subject of property. (b) But partridges hatched and reared by a common hen, while they remain with her, and from their inability to escape, are practically under the dominion and in the power of the owner of the hen, may be the subject of larceny, though the hen is not confined in a coop, or otherwise, but allowed to wander with her brood about the premises of her owner. (c)

Dogs not being the subject of larceny at common law, are not chattels within 7 & 8 Geo. 4, c. 29, s. 53. (d)

There is no absolute property in animals feræ naturæ, but only a special or qualified right of property—a right rationi soli to take and kill them; and when killed upon the soil, they become the absolute property of the owner of the soil.

When the thing is not, in its original state, the subject of larceny, it is necessary that the act of taking should not be one continuous act with the act of severance, or other act, by which the thing becomes the subject of larceny. (e)

Where poachers, of whom the prisoner was one, wrongfully killed a number of rabbits upon land belonging to the Crown, and placed the rabbits in a ditch upon the same land, some of the rabbits in bags and some strapped together; they had no intention to abandon the wrongful possession of the rabbits which they had acquired by

(a) Reg. v. Watts, Dears. 326; 23 L. J. (M. C.) 56. See now 32 & 33 Vic. c. 21. s. 15.

(b) Arch. Cr. Pldg. 318.

(d) Reg. v. Robinson, 5 U. C. L. J. 143; Bell, 34; 28 L. J. (M. C.) 58.

(e) Reg. v. Townley, J. R. 1 C. C. R. 317, per Bovill, C. J.

taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them; about three hours afterwards the prisoners came back and began to remove the rabbits :-Held, that the taking of the rabbits and the removal of them was one continuous act, and that the removal was therefore not larceny. (a) But if the goods vest in the owner, in the interval between the severance and the removal, it is larceny. (b) Potatoes severed from the soil, or dug and in pits, are clearly the subject of larceny. (c)

The distinction between grand and petty larceny has been abolished, and now all larcenies, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the distinction between grand and petty larceny was abolished. (d)

There must be an actual or constructive taking of the goods, on the ground that larceny includes a trespass.(e) There must also be a carrying away; but, as the felony lies in the very first act of removing the property, the least removing of the thing taken from the place where it was before, with intent to steal it, is a sufficient asportation. (f)

To constitute larceny, there must be an animus furandi : i. e. a felonious intent to take the property of another against his will. The essence of the offence is knowingly taking the goods of another against his will. (g) If the goods were taken with the consent of the owner then the property would pass, and according to a distinction

(a) Reg. v. Townley, L. R. 1 C. C. R. 315.

(b) Ib. 318, per Bramwell, B.

(d) 32 & 33 Vic. c. 21, s. 2.

(e) 2 Russ. Cr. 152.

(f) Ib. See also Reg. v. Townley, L. R. 1 C. C. R. 319, per Blackburn, J. (g) Reg. v. M'Grath, L. R. 1 C. C. R., 210-11, per Blackburn, J.; see Reg. v. Prince, L. R. 1 C. C. R. 150; 38 L. J. (M. C.) 8.

to be afterwards pointed out, it would not be larceny; and if not taken feloniously the taking would amount only to a bare trespass.

It is clear that the taking must be animo furandi and lucri causâ. Thus where the prisoner's goods were seized under warrants of execution of a County Court, and were in possession of a bailiff, and the prisoner, with intent to deprive the bailiff, as he supposed, of his authority, and so defeat the execution, forcibly took the warrants from him, without any intent otherwise to make use of them, it was held that the prisoner was not guilty of larceny. (a) But in such case the prisoner would be guilty of taking the warrants for a fraudulent purpose, within the meaning of the 32 & 33 Vic., c. 21, s. 18, by which the stealing of any records is made felony. (b)

Returning the goods may be evidence to negative the animus furandi at the time of taking them, but it is no defence that the prisoner intended to return them when taken. (c) Where the prisoner, having broken open a plate chest, of which he was bailee for safe custody, and pawned the contents, was tried for the simple larceny, the jury found him guilty, but recommended him to mercy, "believing that he intended ultimately to return the property" :-Held, that the conviction must be sustained, for upon the facts there was evidence of larceny, and it did not appear from the recommendation to mercy that the jury believed that the prisoner, at the precise time when he took the property, intended to return it. (d)

As to larceny of lost property, the general rule seems to be that if a man find goods that have been actually

(c) See Reg. v. Cummings, 4 U. C. L. J. 189, per Spragge, V. C; Reg. v. Trebilcock, 4 U. C. L. J. 168; Dears. & B. 453; 27 L. J. (M. C.) 103.

(d) Reg. v. Trebilcock, supra.

lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny: but if he takes them with the like intent, though lost or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. (a) It is necessary that the prisoner, at the time of finding, should believe that the owner can be ascertained, and without this, an intention to appropriate, at the time of the finding, will not make the prisoner guilty of larceny, though he ascer tain the name of the owner before converting to his own

use.

The prisoner found a sovereign in the highway, be lieving at the time that it had been accidentally lost, but nevertheless with a knowledge that he was doing wrong, he at once determined to appropriate it, though it should afterwards become known to him who the owner was. There was no evidence to shew that the prisoner believed he could ascertain who the true owner was, at the time he found the sovereign :-Held, that the prisoner was not guilty of larceny. (b)

In all cases of larceny of lost property the question turns on what were the prisoner's grounds for believing that the goods were abandoned. (c) But there is a distinction between property which is lost or abandoned, and that which is only mislaid. If property is abandoned, any one may acquire a right against the owner, (d) and, acquiring the property by a lawful title in the first instance, he cannot be guilty of larceny. As above explained, a person may, in certain cases, acquire a lawful

(a) Rey. v. Thurborn, 1 Den. 388; 2 C. & K. 831; 18 L. J. (M. C.) 140; affirmed in Reg. v. Glyde, L. R. 1 C. Ć. R. 139; 37 L. J. (M. C.) 107.

(b) Reg. v. Glyde, supra.

(d) See Reg. v. Glyde, supra.

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