ant designed that the owner should get no benefit from his property. It is enough that he intended to convert it to his own use, and it is no defense that that use was beneficial to the owner also, nor that he was the person principally benefited. A servant who stole oats from his master's granary with design to feed them to the horses which the servant was accustomed to drive, designed to deprive his master of the oats, and it was not material that the master was indirectly benefited by having his horses fed with them. The servant knew that he was taking the master's property without his consent, depriving him of it permanently, and converting it is the use of the servant, in getting the pleasure of feeding his favorite team; and consequently he was convicted of larceny for taking the oats (34). If A. wrongfully takes from B., without his consent, a bushel of wheat, and returns and sells it to B., no one will contend that the fact that the wheat was thus returned, and intended to be so returned, when taken, relieves the act of taking of its felonious character. In such case the offense of larceny would be as complete as if the wheat had been sold to a stranger. On an indictment for stealing tallow it appeared that prosecutor was a tallow-chandler and that about the noon hour the defendant, who was in his employ put some of the prosecutor's tallow on the scales and told him there was some tallow on the scales for him which came from a butcher he named, the design of the defendant being to obtain pay for the tallow and divide the money with the butcher's driver, who came with him for the money. (34) Queen v. Privett, 2 Cox C. C. 40. It was contended for the defendant that there was no design to deprive the chandler of his tallow. One of the judges said: "If a man takes my bank note from me and then brings it to me to change, does he not commit larceny?" Another judge asked: "How could he deprive the owner of it more effectually than by selling it? To whom he sells it cannot matter. The case put of the bank note would be an ingenious larceny, but no case can be more extreme than this." Finally it was concluded that the conviction was right; for one who takes property from another intends wholly to deprive him of it, if he intends that he shall get it back under a contract by which he pays the full value for it (35). It is not necessary to the crime of larceny that the defendant shall have intended to deprive the owner wholly of his property. One who found a horse trespassing on his premises concealed it with intent to hold it till the owner would offer a reward for it and then return it and claim the reward. This was held to be larceny. The guilt cannot depend on the intent to exact the full value or a less amount. To the extent that the defendant expects to be paid he designs to deprive the owner of his property. The cases are clear and numerous on this point (36). But when a skin dresser in a tannery, who was to be paid by the piece for the work done by him, the foreman coming about each day and counting the hides on his peg and crediting him for the work done, hung on his peg some skins that had been dressed by others and paid for, (35) Queen v. Hall, 3 Cox Cr. Cases 245. (36) Commonwealth v. Mason, 105 Mass. 163. the court held that his act amounted to no more than a piece of dishonest bookkeeping, the same as if he had been required to put down a tally mark as he finished each skin, and had put down more marks than he dressed skins (37). On the contrary, it was held that a cotton picker who broke into the warehouse, and stole cotton, and carried it to the field, to be paid for picking it, was guilty of statutory burglary as much as one who takes another's property and holds it for a reward (38). § 137. Intent to deprive the owner permanently. It is often said that it is essential to larceny that the defendant have the purpose to deprive the owner of his property permanently; and to this effect are such cases as the one where a man took a girl's clothes to a hay-mow where they had been together, with the intent to induce her to come to get them. He was not guilty of larceny because his design was only to deprive the owner of her property temporarily and for a special purpose (39). An indentured servant who mounted a horse he found hitched by the road, and rode it away to make good his escape, was held not guilty of larceny, because he did not design to deprive the owner of it permanently; and the same was held of one who took the gun from the guard at a work-house, to prevent its use in hindering his escape, though he afterwards sold or gave it away (40). But if the defendant had the purpose to convert the property to a use of his own which might result in depriving the owner of it permanently, it is not a defense that he had an intention at some uncertain time in the future to make good to the owner the return of his property or hoped that he would get it again. One being convicted of the larceny of a box of plate worth £600, which the prosecutrix had left him for safe keeping, a question was reserved as to whether the conviction could be sustained in view of the finding that the prisoner intended when he took the plate to redeem it when he could get the money and then restore it to the owner. The judges agreed that this was no excuse. The views of the court can be gathered from the following opinion by Crowder, J. "It seems to me, also, that upon the facts of this case no other rational conclusion could be arrived at, except that the prisoner stole the plate. He broke open the box, and took out the plate and stole it, but the jury recommended him to mercy because they thought that he had an intention of ultimately restoring it. Probably it very often happens that when stolen goods are pawned, there is an intention to get them back again, if the person pawning them should ever be able to do so, and in that case to return them; but such an intention affords no ground for setting aside a verdict of guilty, when the offense of larceny is satisfactorily proved by the evidence" (41). § 138. What is conversion to taker's own use. It has often been argued that the essence of the crime of larceny is the design of the accused to profit by taking the prop (41) Queen v. Trebilcock, 7 Cox C. C. 408. erty of another, and that if there is no design on his part to profit by the act it is not larceny. There is some support for this contention in the decided cases; but whether the doctrine is admitted or not, it is clear that the profit intended by the wrong-doer in cases of larceny is very different from what is ordinarily understood. In many cases it is flatly denied that intention to profit by the act is essential to the crime of larceny. A few illustrations will make the state of the law clear to the reader. On an indictment for stealing two letters containing money and stamps, it appeared that the defendant was a clerk in the postal service, had failed to deliver the letters on time, and had put them into the water-closet to avoid the discovery of his fault and the resulting penalty. This was held to be a sufficient profit to him to make the taking larceny (42). In another case a woman who had applied for work learned that her former employer had written an unfavorable report concerning her to the woman to whom she had applied for work. To avoid the delivery of this unfavorable report, she went to the post-office, called for the letter, received it, and destroyed it. In this case all but one of the judges held that, even admitting that profit to the accused was an essential ingredient of the offense, here was sufficient profit to sustain the conviction (43). On a prosecution for larceny the defendant admitted that he took the horses, saddle and spurs, with which he was charged; but said that he had no design to profit thereby, and that his only object was to harass and annoy the (42) Queen v. Wynn, 3 Cox Cr. Cases 271. |