CHAPTER VII.

OFFENSES AGAINST THE PROPERTY OF INDIVIDUALS.

I. LARCENY, §§ 303-340.

A. In General, § 303.

B. The Subject of Larceny, 88 304-313.

C. The Taking in Larceny, §§ 314-320.

D. The Asportation in Larceny, §§ 321-325.

E. The Felonious Intent in Larceny, §§ 326-333.

F. Grand and Petit Larceny, §§ 334-336.

G. Compound Larcenies, §§ 337-340.

II. EMBEZZLEMENT, §§ 341-349.

III. CHEATS AND FALSE PRETENSES, §§ 350-369.

A. Common-Law Cheats, §§ 350-351.

B. False Private Tokens, §§ 352-354.

C. False Pretenses, §§ 355-369.

IV. ROBBERY, §§ 370-379.

V. RECEIVING AND CONCEALING PROPERTY STOLEN, EMBEZZLED, ETC., §§ 380-387.

303. Definition and Classification.-Larceny is of two kinds, namely:

1. Simple larceny, and

2. Compound larceny.

Simple larceny at common law is the taking and carrying away of the mere personal goods of another of any value from

any place, with a felonious intent to steal the same. This definition includes the following elements:

1. The subject of the offense must be the mere personal goods of another. Other things, however, are made the subject of larceny by statute.

2. The goods must be taken, and the taking must be under such circumstances as to amount technically to a trespass.

3. There must be some asportation or carrying away of the goods.

4. Both the taking and the carrying away must be with a felonious intent,—an intent to steal,-existing at the time.

Grand and Petit Larceny.-By statute in some jurisdictions larceny has been divided, according to the value of the property or other circumstances, into

1. Grand larceny, and

2. Petit larceny.

Compound larcenies are larcenies committed under certain aggravating circumstances. Thus

1. At common law, robbery, which is larceny from the person or in the presence of another by violence or by putting him in fear, is a compound larceny.

2. By statute in most, jurisdictions, it is a compound larceny, punished more severely than simple larceny, to steal

(a) From the person of another, or

(b) From a dwelling house, or certain other places specified in the statute.

(B) The Subject of Larceny.

304. In General.-At common law the subject of larceny must be the mere personal goods of another. Therefore,

1. It must be personal, as distinguished from real prop

erty.

2. It must be something which the law recognizes as property and the subject of ownership.

3. It must be of some value, but the least value to the owner is sufficient.

4. It must be the property of another. But a special property in another is sufficient, even as against the general owner; and mere possession is enough as against others than the owner.

305. Real Property.

(a) In General.-Real property is not the subject of larceny at common law. The property must be personal,—the "mere personal goods" of another.1 At common law, therefore, it is not larceny, but a mere trespass, to sever and immediately carry away trees, grass, crops, fruit, vegetables, and the like.2 The same is true of ores and minerals before they have been mined, ice before it has been cut, and turpentine or maple sap before it has been drawn from the trees.5

11 Hale, P. C. 510; 1 Hawk. P. C. c. 33, § 1; 2 East, P. C. 587; 4 Bl. Comm. 232.

21 Hale, P. C. 510; 1 Hawk. P. C. c. 33, § 21; 2 East, P. C. 587; 4 Bl. Comm. 232; Anon., Year Book 11 & 12 Edw. III. 640, Beale's Cas. 488; Anon., Year Book 19 Hen. VIII. 2 pl. 11, Beale's Cas. 490; Carver v. Pierce, Style, 66 Mikell's Cas. 639; Holly v. State, 54 Ala. 238; Bradford v. State, 6 Lea (Tenn.) 634; Bell v. State, 4 Baxt. (Tenn.) 426.

At common law, title deeds and boxes containing them, and other instruments concerning real property, such as a commission out of a court of chancery to settle the boundaries of a manor, were held not to be the subject of larceny, "because they savour of the same nature." 2 East, P. C. 596; 1 Hale, P. C. 510; Rex v. Wody, Year Book 10 Edw. IV, pl. 9, 10, Beale's Cas. 489; Rex v. Westbeer, 2 Strange, 1133, 1 Leach, C. C. 12, Mikell's Cas. 640.

3 People v. Williams, 35 Cal. 671; State v. Burt, 64 N. C. 619. It makes no difference that the ore has been severed from the land by natural causes, and is lying loose upon it, for this does not change its character as real property. State v. Burt, supra. And see Com. v. Steimling, 156 Pa. 400, 27 Atl. 297, Beale's Cas. 588, Mikell's Cas. 659. 4 Ward v. People, 3 Hill (N. Y.) 395, 6 Hill (N. Y.) 144.

5 See State v. Moore, 11 Ired. (N. C.) 70.

The common-law rule that real property cannot be the subject of larceny has been changed to some extent by statute both in England and in this country. Thus, it is made larceny in some jurisdictions to steal outstanding crops, though the severance and the carrying away may be one continuous act.

(b) Fixtures. For the same reason it is not larceny at common law to sever and immediately carry away fixtures,—that is, property which is so annexed to the land by man as to acquire the character of real property, such as the whole or part of a building or fence, or water pipes, gas pipes, doors, mantles, windows, machinery, etc. If a thing is merely used in con

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6 See Holly v. State, 54 Ala. 238; State v. Stephenson, 2 Bailey (S. C.) 334.

71 Hale, P. C. 510; 1 Hawk. P. C. c. 33, § 21; 2 East, P. C. 587; Rex v. Millar, 7 Car. & P. 665 (lead from the roof of a building); U. S. v. Wagner, 1 Cranch, C. C. 314, Fed. Cas. No. 16,630 (rails of a fence inserted in posts fixed in the ground); U. S. v. Smith, 1 Cranch, C. C. 475, Fed. Cas. No. 16,325 (logs in a fence). And see the cases cited in the notes following.

81 Hale, P. C. 510; Langston v. State, 96 Ala. 44, 11 So. 334; State v. Hall, 5 Harr. (Del.) 492; State v. Davis, 22 La. Ann. 77. See, also, Ex parte Wilkie, 34 Tex. 155.

In State v. Davis, supra, it was held that a copper pipe affixed to an engine which was affixed by masonry to a building was realty, and not the subject of larceny. And State v. Hall, supra, and Langston v. State, supra, were to the same effect.

Some of the courts, regarding the rule as technical, have refused to follow it to its logical extent. In Kentucky, for example, chandeliers were held to be the subject of larceny, though they were attached to pipes in a building, and it was conceded that they were so far a part of the realty that they would pass as such on a sale of the building. The court said: "The modern authorities, instead of following the common-law doctrine on the subject, apply it only to things issuing out of or growing upon the land, and such as adhere to the freehold, but not to personal chattels that are constructively annexed thereto." Smith v. Com., 14 Bush (Ky.) 31, 29 Am. Rep. 402. See, also, Jackson v. State, 11 Ohio St. 104.

This decision, as was conceded by the court, was certainly a departure from the common-law rule, and there is no principle upon which it can be sustained. If the common law is defective in this respect, it is for the legislature, not the courts, to supply the remedy.

nection with the realty, and not annexed at all, as in the case of pictures, furniture, keys, and the like, it is personal property, and the subject of larceny. And the same is true of things which are temporarily annexed, and which are intended to be removed, and may be removed without injury to the freehold, as in the case of leather belts connecting the wheels in a sawmill,1o or wire used in a temporary fence on the public domain.10a In some jurisdictions statutes have been enacted making it larceny to take and carry away fixtures with felonious

intent.

(c) Severance of Property before Taking-(1) By the Owner or by a Third Person.-Things which constitute a part of the realty may acquire the character of personalty by being severed by the owner, or by a third person, and they then become the subject of larceny even at common law.11 After the owner of land has cut down his trees, harvested his crops, or gathered his vegetables or fruit, they are no longer real property, and may afterwards be stolen.12 The same is true when

Rex v. Hedges, 1 Leach, C. C. 201, 2 East, P. C. 590, note; Rex v. Nixon, 7 Car. & P. 442; Hoskins v. Tarrance, 5 Blackf. (Ind.) 417, 35 Am. Dec. 129, Mikell's Cas. 642.

A key, though in the lock of a door in a house, is personal property, and the subject of larceny. Hoskins v. Tarrance, supra.

10 Reg. v. Hedges, 1 Leach, C. C. 201, 2 East, P. C. 590, note; Langston v. State, 96 Ala. 44, 11 So. 334; Jackson v. State, 11 Ohio St. 104. In Reg. v. Hedges, supra, a window frame, not hung or beaded into the window frame, but fastened there by laths nailed across, so as to prevent it from falling out, was held to be the subject of larceny, as such a temporary fastening did not make it a part of the realty. So of a bell in a chapel, if not fixed. Rex v. Nixon, 7 Car. & P. 442. 10a Junod v. State (Neb.) 102 N. W. 462.

11 "Severance of ore, as of a nugget of gold, by natural causes, is not such a severance as to make it personal property, and the subject of larceny. State v. Burt, 64 N. C. 619; ante, § 305, note 3.

12 3 Inst. 109; 1 Hale, P. C. 510; 1 Hawk. P. C. c. 33, § 21; 1 East, P. C. 587; Year Book 19 Hen. VIII. 2 pl. 11, Beale's Cas. 490; State v. Parker, 34 Ark. 158, 36 Am. Rep. 5; Bradford v. State, 6 Lea (Tenn.) 634; Bell v. State, 4 Baxt. (Tenn.) 426.