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ARTICLE 316.

TAME ANIMALS AND WILD ANIMALS IN CAPTIVITY.

(a.) 1 The following animals are capable of being stolen at common law;

tame animals, whether originally wild or not, birds, bees, and silkworms kept respectively for food, labour, or profit, their young and their produce;

hawks kept for sport;

wild animals in a state of captivity kept for food or profit, 2 but not wild animals kept in a state of captivity for curiosity.

(b.) The following animals are the subject of larceny by

statute:

3 dogs, birds, beasts, and other animals ordinarily kept in a state of confinement, or for any domestic purpose.

(c.) Animals of a base nature are not capable of being stolen either at common law or by statute unless they are ordinarily kept in a state of confinement, or for any domestic purpose, in which case they are the subjects of larceny by

statute.

4 An animal capable of being stolen, whatever may be its nature, does not cease to be capable of being stolen because it is permitted at certain times to wander abroad.

Illustrations.

(1.) 5 The milk of a cow, the wool on a sheep's back, honey in a hive, are the subjects of larceny at common law.

1 2 Russ. Cr. 233-239.

2 2 Russ. Cr. 238.

3 24 & 25 Vict. c. 96, ss. 18 and 21. See Article 354.

4 Coke, 3rd Inst. 108, 9; 2 Russ. Cr. 234-239. Ferrets, so far as I know, are the only animals to which (c) has been applied in modern times. In R. v. Searing, 1818, R. & R. 350, "It appeared in evidence that ferrets are valuable animals, and those in question were sold by the prisoner for

9s. The judges were of opinion (in 1818) that ferrets though tame and saleable could not be the subject of larceny." I know not whether a ferret would fall within (b) or not. It is necessary to mark the distinction between animals which are the subject of larceny at common law and those which are the subject of larceny by statute, because it is recognised in several statutes. See 24 & 25 Vict. c. 96, ss. 21, 23, Oke's Synopsis, p. 406. 52 Russ. Cr. 233-4.

(2.) 1 Young partridges or pheasants reared under a domestic fowl are regarded as tame, and as such are the subjects of larceny at common law till they become wild.

(3.) 2 Deer in a paddock, rabbits in a hutch, are the subjects of larceny at common law. Bears or monkeys kept in dens are

the subjects of larceny by statute.

(4.) 3 Young partridges reared under a common hen do not cease, so long as they are practically under the dominion of their owner, to be the subjects of larceny at common law because they are allowed to wander abroad.

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(5.) Pigeons in a dovecot are the subjects of larceny at common law although they are allowed to fly about.

ARTICLE 317.

WILD ANIMALS LIVING AND DEAD.

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Living wild animals in the enjoyment of their natural liberty, whether they have escaped from confinement or not, are not capable of being stolen although they may be game, and although it may be an offence to pursue or kill them; but the dead body of such an animal is capable of being stolen, and it becomes the property of the person on whose ground the animal dies.7

ARTICLE 318.

DEAD BODIES.

8 The dead body of a human being is not capable of being stolen.

1 R. Shickle, 1868, 1 C. C. R. 158; R. v. Cory, 1864, 10 Cox, C. C. 23. 22 Russ. Cr. 234-238.

3 R. v. Shickle, 1868, 1 C. C. R. 158.

R. v. Cheafor, 1851, 2 Den. 361. It has not, however, been decided that pigeons can be stolen whilst actually flying about apparently at liberty. I suppose the question would turn on the knowledge of the offender that the pigeons were tame.

52 Russ. Cr. 236.

But

See Chapter XLIX. Oysters are the subject of larceny by statute; see Art. 353 (g), but they can hardly be called “living wild animals.” 7 Blades v. Higgs, 1865, 11 H. L. C. 621; 34 L. J. (C.P.) 286. see R. v. Townley, 1870, 1 C. C. R. 315, and Article 322, 3rd paragraph. 8 R. v. Haynes, 2 East, P. C. 652. Can skeletons and anatomical preparations of parts of dead bodies, or which formerly formed parts of bodies when living, be stolen?-teeth, for instance, intended to be used as false teeth.

ARTICLE 319.

THINGS ABANDONED.

1 Things of which the ownership has been abandoned are not capable of being stolen.

Illustrations.

(1.) To convert treasure trove before office found is not theft.

(2.) 3 To convert wreck of the sea is not theft [if the owner is unknown].

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(3.) To convert goods absolutely lost to the owner, and as to which there is no reasonable ground for believing that the owner can be found, is not theft.

ARTICLE 320.

THINGS OF NO VALUE.

5 Things of no value to any one are not capable of being stolen, but things valuable to no one but the owner are capable of being stolen.

Illustration.

5 The paper and stamps of the notes of a firm of country bankers which have been paid by the London correspondent and which are capable of being reissued by the country bankers may be stolen, because they are valuable to the country bankers (as saving the expense of printing new notes), though to no one else.

12 East, P. C. 606–7.

See Article 371.

23 Inst. 108. It is however a misdemeanor. 31 Hawk. P. C. 149, s. 38. This must be understood of wreck of the sea unclaimed, and not of wreck not forming part of or belonging to a vessel in distress, as to stealing which see Article 351 (g) and Oke's Synopsis, p. 682. Penalties for various offences as to wreck are contained in the Merchant Shipping Act, 1894, for the contents of which previous to consolidation see 1 Oke, p. 614.

4 The law as to finding property is more fully stated in Article 328. 5 Clarke's Case, 1809, 2 Lea. 1036.

CHAPTER XXXVI.

*THEFT IN GENERAL.

ARTICLE 321.

DEFINITION OF THEFT.

1 THEFT is the act of dealing, from any motive whatever, unlawfully and without claim of right with anything capable of being stolen, in any of the ways in which theft can be committed, with the intention of permanently converting that thing to the use of any person other than the general or special owner thereof. Provided that the offences defined in Articles 368 and 369 do not amount to theft.

The ways in which theft can be committed are specified in Articles 322 to 326, both inclusive. In those articles the word "convert" means such a conversion as is hereinbefore specified.

A claim of right may be founded on a mistake of law.

Illustrations.

(1.) A takes B's horse from his stable and backs him down a coal-pit a mile off, in order to prevent the horse from being identified in the trial of C for stealing it. A steals B's horse. (2.) 3 A, a post-office clerk, drops two letters down a watercloset in order that a mistake which he had made in sorting them might not be discovered. A steals the letters.

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(3.) * A, a servant, gets B's letters from the post-office, and destroys one of them written to B by C, A's mistress, making inquiries of B as to A's character, delivering the rest. A steals the letter.

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(4.) A, a puddler, throws an iron axle into his furnace in order to increase the apparent amount of iron puddled therein,

* 3 Hist. Cr. Law, ch. xxviii. pp. 121-176.

1 R. v. Holloway, 1848, 1 Den. 370.

2 R. v. Cabbage, 1815, R. & B. 292; 2 Russ. Cr. 205.

3 Wynn's Case, 1848, 1 Den. 365.

4 R. v. Jones, 1846, 1 Den. 188.

5 R. v. Richards, 1844, 2 Russ. Cr. 207; 1 C. & K. 532.

This case is

not altogether easy to reconcile with R. v. Webb; see Illustration (9).

on which A's wages depend.

The axle, worth 58., is destroyed, though the iron of which it is composed, and which is much less valuable, remains for the owner. A has stolen the axle.

(5.)1 A, without his master's leave, takes his master's corn to feed his master's horses. This was theft till the passing of 26

& 27 Vict. c. 103.

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(6.) A gleans corn,

a legal right to do so.

not having, but believing himself to have, This is not theft.

(7.) 3 B, a gamekeeper, takes snares set by A, a poacher, and a dead pheasant caught therein. A, honestly believing that the snares and pheasant were his property, and that he had a legal right to them, forces B by threats to return them. This is not

robbery, and if no violence were used would not be theft.

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This is

(8.) A, believing that B owes him £11, and seeing B receive £7, knocks down B and tries to get the £7 out of his pocket, saying, "Pay me the eleven sovereigns you owe me. not robbery, and if no violence were used would not be theft. (9.) 5 The ore in a mine belongs to adventurers, and is to be excavated by tributers. One set of tributers are to be paid a larger sum in the pound than the other set for the ore excavated by them. The ore excavated by each set is placed in a heap by itself. A, one of the tributers, moves a quantity of ore from the heap to be paid for at the lower to the heap to be paid for at the higher rate. A has not stolen the ore.

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(10.) Workmen in the glove trade are paid according to the number of gloves finished by them. A (a workman) takes gloves from his master's warehouse and puts them in the place where the newly finished gloves are put to be counted, so as to increase the apparent number of newly finished gloves, and with intent fraudulently to obtain payment for the gloves so removed from the warehouse. This is not theft.

(11.) B uses many bags in his trade, and is supplied with them by C. A, B's servant, takes old bags supplied by C to B from B's house and puts them in a place outside B's house,

1 R. v. Morfit, 1816, R. & R. 307.

22 Russ. Cr. 203; commenting on Woodfall, Landlord and Tenant. 3 R. v. Hale, 1828, 3 C. & P. 409.

4 R. v. Boden, 1844, 1 C. & K. 395. 5 R. v. Webb, 1835; 1 Moo. 431. By 24 & 25 Vict. c. 96, s. 39, which re-enacts an earlier Act passed in consequence of this decision, this is now felony; see Article 369.

6 R. v. Poole, 1857, D. & B. 345; R. v. Holloway, 1848, 1 Den. 370, is similar in principle.

7 R. v. Manning, 1852, D. & P. 21; R. v. Hale, 1848, 1 Den. 381, is very like this case.

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