seized it and ran with it, but stopped with a sharp turn when he reached the length of the chain by which it was fastened to the building; and it was held that he was not guilty of larceny, because he never had complete possession of the property designed to be stolen (25).

§ 133. Property taken must be personal estate. In the absence of statute nothing can be the subject of larceny which is in the nature of real property. At an early day it was held that one could not be convicted of larceny for taking a box of title deeds; for although the box was personal property and the deeds were paper or parchment, yet their character as evidence of land titles was so much superior to their character as box and paper that the law could see them only in the character of incidents to the land. For the same reason the keys of the house, the fruit on the tree, the corn growing in the field, and the like, could not be the subjects of larceny, and it was merely a civil trespass and civil private wrong to take them. The trespasser who went to another man's woods and cut and took away his trees, or dug up and carried away his coal or other minerals, was not guilty of larceny; for the things he took were not chattels and goods, but real property, which could not be stolen. But if the trespasser went and cut the logs, dug the coals, cut the hay, or the like, and left them, he thereby made them personal property of the owner of the land; and if he then returned at a later time and carried them away, such asportation was carrying away the goods of another, and the taker was

(25) People v Meyer, 75 Cal. 383.

guilty of larceny in such taking. This rule of the common law has induced the enactment of a multitude of statutes in the various states, making the taking of fruit from an orchard or vineyard, grain or vegetables growing or in the ground, and many other trespasses, a statutory form of larceny.

§ 134. In what things one may have property so that taking is larceny. What is held in common by all, no one is guilty of larceny in taking, for example, air and sunshine, under ordinary circumstances. The same is true of wild fowls, fish and game. To be the subjects of larceny these must be subjugated. If I tame a deer my property in it continues only while I retain my dominion. If it returns to the forest another may take it. But if one takes my deer from my enclosed park, my fish from my net, or the like, intending to convert them to his own use, this is larceny. Yet there are things by their nature so base that the common law, out of favor to life, would not admit of their being the subjects of larceny, such as cats and dogs, though tamed and domesticated; for, as Lord Coke very forcibly put it, the law did not deem it fit that any man should die for a dog. Yet even in those days, one might die for stealing the trained hawk with which the lords of those days were fond of hunting. These peculiar decisions are hard to reconcile, and were no doubt induced by the severity of the punishment which was then inflicted on the thief. In later cases it has been said that one may be guilty of larceny in taking anything of value for man's food or clothing; and even the stealing of bees, which are of no value for either purpose, has been held larceny, be

cause they produce what is suitable for food. It has also been held that it is larceny to steal a song bird and the cage in which it was confined on the porch of the owner. The bird was suitable neither for foor nor clothing, and yet it ministered to the comfort of the owner, and could be sold for a good price; and the severity of the old law being now abated, there was no reason why the stealing of such things should not be punished as larceny (26). It seems rather contradictory also to say that one could be punished criminally for the larceny of the pelt of a dead dog, but could not be punished for stealing a live

and there are a number of late decisions in which it has been held that one may be punished criminally for stealing dogs; and it has been said that, considering the service that these animals are continually rendering for the life, comfort, and safety of their master and his family, and the fact that he now pays taxes for his dog as he does for his other property, the taking of a dog with intent to deprive the owner of it is larceny (27).

§ 135. The intent at the time. The mere wrongful taking of the chattel of another is not sufficient to make larceny unless there is the accompanying intent which the law regards criminal. As we have noticed several times before, this criminal intent must exist at the time of the taking, and no subsequent change of intent can make the act criminal which was not so when it was done. If I take another's goods intending to deprive him of them it is not larceny provided I thought they were my

(26) Haywood v. State, 41 Ark. 479. (27) Mullary v. People, 86 N. Y. 365.

goods, and this is so though my error was one of law and not of fact. A woman who had loaned a man money was held not guilty of larceny in taking the money of his son who had appropriated his estate, if she thought she had a right to make collections in that way (28).

But one who took the property that he knew belonged to a contractor, was held guilty of larceny in taking that property to compel the contractor to perform the contract according to his construction of it, for he was not mistaken as to his right to that property (29).

There are a great many cases illustrating the proposition, already frequently stated, that the criminal intent must exist at the time of the taking, and that no subsequently formed criminal intent will give such character to the taking as to make it larceny. One who took prosecutors's goods from his burning house to save them from the flames was held not guilty of larceny by reason of the fact that she afterwards concealed them in her own house, denied possession of them, and designed to appropriate them to her own use, if she had no such intention at the time of taking them (30). But one who had permission to pasture his sheep in a lot over night on his way to market was held guilty of larceny of a lamb not of his flock, which in the morning went with the sheep without his knowledge, though it was first seen by him when his flock was in the pen at the market, for after he saw it he sold it with his flock. In this case the original taking was

not lawful but a trespass, and the subsequent conversion related back to this wrong and made the crime complete (31).

The rule with regard to bailments, that a hiring for one purpose with an intention at the time to use for another purpose, as the hiring of a horse to go to one place and having an intention all the time to go farther or in a different direction, is a wrong which avoids the bailment and makes the bailee liable as a trespasser if he afterwards goes otherwise than he had agreed, has been held applicable to larceny; and accordingly it has been held that one who hires a horse to go to one place intending all the time to go to another is guilty of larceny if he subsequently sells the horse; for the wrong which accompanied the hiring unites with the wrong afterwards designed and executed to make the taking larceny (32). There may be considerable doubt as to whether the courts generally would follow this decision. There would be no larceny in the subsequent conversion and sale if the intention at the time of the hiring was honest and according to the agreement made with the owner. The decisions. concerning breaking of bulk by carriers (33) would seem contrary to the principle now under discussion, but they are reconciled on the ground that the breaking of the package is a new taking and original trespass.

§ 136. What is intent to deprive owner of his property. To the crime of larceny it is not necessary that the defend