burglary and arson are the same. Both are crimes against the habitation of another. Therefore all that was said as to what is a dwelling house for the purpose of burglary applies to arson and need not be repeated here. Likewise, what was said as to it being the house of another applies here. If I burn down my tenant's house to get the insurance or for any other cause it is arson; but if he burns it down, though with the most wicked and malicious purpose, it is not arson. The burning down of the house of the wife by the husband while they live together in it is not arson; and the same is true of her burning his house. It will be noticed that one element of burglary is not essential to arson-the time is immaterial.

§ 117. What is a burning. The crime is complete as soon as any part of the structure is consumed by fire. It is not necessary that there shall be any blaze. If fire be set to the building and it takes enough so that any part of the house is eaten out by the fire, as by a coal on the floor, that is enough. But if a fire be set on the floor of a house to burn it; and while the kindling is blazing the fire is discovered and extinguished, or if it goes out of its own account, arson has not been committed, though the house may be filled with smoke, the walls blackened, and the floor scorched.

§ 118. The intent. There need not be any intent in fact to burn the house with the burning of which the defendant is charged. The intent may be supplied by construction as in many other crimes. One who set fire to his own house to get the insurance was held liable for arson because the fire unintentionally spread and a burn

ing shingle fell on the house of his neighbor long enough to set fire to a shingle on that roof (7). When a prisoner in a wooden jail set fire to the floor, with intent to control the flames with some water he had for washing and drinking until a hole would be made in the floor, through which he might escape, it was held arson, though he had at no time any design to burn the jail down (8).

(7)

Commonwealth v. Tucker, 110 Mass. 403.

(8) Luke v. State, 49 Ala. 30.

CHAPTER IX.

CRIMES AGAINST PROPERTY.

§ 119. Outline. Of the crimes against property the following will be discussed: (1) larceny, at common law; (2) robbery, a compound offense against both person and property; (3) larceny from the person, a statutory crime; (4) larceny from the house, statutory; (5) receiving stolen goods, statutory; (6) embezzlement, statutory; (7) cheating, at common law; (8) forgery and uttering forged instruments, a form of common law cheating; (9) obtaining property by false tokens and pretenses, statutory; (10) malicious mischief.

SECTION 1. LARCENY.

§ 120. Defined. Larceny at common law is the wrongful or fraudulent taking and carrying away of the personal property of another with the felonious intent to deprive him of it and convert it to the taker's own use. The points most debated in the courts have had to do with what consent by the owner to the possession of the property by the defendant would make the original acquisition by him lawful, and so prevent the subsequent conversion being larceny; for if he had it by the consent of the owner, it would seem clear that his taking was not wrongful.

§ 121. Wrongful in general. The original idea of larceny at the common law was that the first taking must be

unlawful; for if the defendant once had the possession of it lawfully, though he had criminal intent afterwards, it was no larceny. Accordingly one who hired furnished lodgings for three months and took bedding therefrom was held not liable criminally, because there was no trespass in the taking. This general doctrine remains to this day, but what constitutes a wrongful taking has received much modification in the course of five centuries, and it will be instructive to notice the principal classes of cases in which the question has arisen. The difficulty as to whether there has been a trespass sufficient to convict of larceny has arisen in cases in which, for his own purposes, the owner has given the accused custody as a servant, in making an exchange, or in some other capacity; or, where the accused received the property from another, and the doubt was whether the prosecutor yet had sufficient possession to make the wrongful conversion a trespass; or where the property had been delivered to the accused by mistake, or had been lost and was found by him. Let us examine these in the order named.

§ 122. Wrongful taking by servant. In the time of Henry VII and before, there was considerable debate as to whether a servant was liable criminally for taking property which came to his hands in the course of his service, and it was said that if I give my goods to my servant to sell or keep he cannot take them feloniously for they are in his possession. To put this doubt at rest it was provided by statute, 21 Henry VIII., c. 7, "that if any master or mistress deliver any goods to his servant to keep who withdraws himself and goes away with the

goods to the intent to steal them, or if he embezzle the goods of his master, or convert them to his own use, if the goods be worth forty shillings, it shall be felony." In construing this statute it was held that money received by the servant from another to be paid to the master was not received from the master within the meaning of the statute, though the master sent him for it. This decision was undoubtedly correct; but the statute was enacted to remove the doubt from the common law and as declaratory of it; yet from this decision it was soon taken that the conversion by a servant of money received from another for the master was no crime. Because of this conclusion it became necessary to provide by statute for such cases, and from this have arisen our modern statutes concerning embezzlement.

§ 123. What is delivery to master: Deposit by servant for him. Because of the rule established that the conversion by the servant of money received for his master before it had reached the master's possession was not larceny within the common law nor the statute of Henry VIII. above mentioned, it often became a question in cases of delivery to servants whether the master had yet obtained possession so that the subsequent conversion by his servant was larceny. It was finally settled that if the servant received the money or property for the master and deposited it in the cash box or other receptacle, the property was then in possession of the master, and any subsequent taking by the servant would be larceny; and in a case which occurred in England some years ago it was held that when the master sent his servant for a cart