The true doctrine, however, on this point, is that the liability of a man who takes and carries away another's property with the consent of the owner's wife, or when it is delivered to him. by her, or who aids her in doing so, does not depend upon the fact that he has committed, or intends to commit, adultery with her, but upon whether the circumstances are such that the husband's consent to the taking may be presumed, and that, if he knows that the husband does not assent, he may be guilty of larceny, though he has not committed adultery with the wife, and does not intend to do so.74 If he has committed adultery with her, or is eloping with her with intent to do so, he is guilty because the assent of the husband under such circumstances cannot be presumed.75

(C) The Taking in Larceny.

314. Manner of Taking Possession.-To constitute larceny the property must be taken; but, except as hereafter stated, it need not be taken in any particular manner or by any particular means. The taking may be

1. By the hands of the thief.

2. By means of an inanimate agency.

3. By means of an innocent human agent.

4. It need not be secretly.

5. It must not be from the person by violence or putting in fear, for this is robbery.

The taking in larceny is generally by the hand of the thief, so that he acquires actual possession of the property. But it

.

74 Rex v. Tolfree, 1 Mood. C. C. 243; Reg. v. Berry, Bell, C. C. 95, 8 Cox, C. C. 117, 5 Jur. (N. S.) 228; People v. Cole, 43 N. Y. 508; People v. Schuyler, 6 Cow. (N. Y.) 572.

75 Reg. v. Berry, Bell, C. C. 95, 8 Cox, C. C. 117, 5 Jur. (N. S.) 228; People v. Schuyler, 6 Cow. (N. Y.) 572.

76 An indictment for larceny always uses this word. It charges that the accused "did feloniously take, steal, and carry away" the property. To take an article feloniously is accomplished by simply laying hold of, grasping, or seizing it animo furandi, with the hands or otherwise. Gettinger v. State, 13 Neb. 308, 14 N. W. 403.

need not be so. A man may take constructive possession, so as to be guilty of larceny, by employing some inanimate agency. For example, he may steal gas from a gas company by fraudulently attaching a pipe to the pipes of the company, and thus drawing the gas into his house and consuming it, without its passing through the meter;77 or he may steal a hog by dropping corn along the ground, and thereby enticing it from the premises of the owner into his own inclosure.78

The taking may also be by the hand of an innocent human agent, as an insane person, or a child of tender years, or a person who is ignorant of the facts.79 Thus, a man may steal a trunk by fraudulently changing the baggage checks at a railroad station, and thereby causing the trunk to be removed by the employes of the railroad company from the possession of the true owner, and put into his own possession. It has been held in such a case that the larceny is complete as soon as there is the least removal of the trunk by the company. 80 A person is also guilty of larceny if, intending to steal property, he fraudulently takes out a writ of replevin or other legal process, upon a false affidavit, and without color of title, and thereby obtains possession.81

77 Reg. v. White, 3 Car. & K. 363, Dears. C. C. 203, 6 Cox, C. C. 213, Beale's Cas. 506, Mikell's Cas. 679; Com. v. Shaw, 4 Allen (Mass.) 308, 81 Am. Dec. 706, Beale's Cas. 501. And see the other cases cited ante, § 306.

A person may steal property from a slot machine by dropping into the slot a piece of metal other than money. Reg. v. Hands, 16 Cox, C. C. 188, Beale's Cas. 614.

78 Edmonds v. State, 70 Ala. 8, 45 Am. Rep. 67, Beale's Cas. 511. And see State v. Wisdom, 8 Port. (Ala.) 511.

79 3 Chit. Crim. Law, 925; Rex v. Pitman, 2 Car. & P. 423; Com. v. Barry, 125 Mass. 390, Beale's Cas. 508; Cummins v. Com., 5 Ky. L. R. 200, Mikell's Cas. 682; Sikes v. State (Tex. Cr. App.) 28 S. W. 688; Lane v. State, 41 Tex. Cr. R. 558, 55 S. W. 831; State v. Hunt, 45 Iowa, 673.

so Com. v. Barry, supra.

811 Hale, P. C. 507; 1 Hawk. P. C. c. 33, § 12; Rex v. Chissers, T. Raym. 275, Beale's Cas. 515.

Stealth and Secrecy not Necessary.-Property is generally stolen secretly, but this is not at all necessary. If it is taken openly, this fact may have great weight in showing that there was no felonious intent; but, if it appears that there was in fact a felonious intent, an open taking is as much larceny as a secret taking.82

Violence or Putting in Fear.-The property must not be taken from the person of the owner by violence or by putting in fear, for in such a case the offense is robbery.88

315. Trespass in Taking Possession-In General.-To constitute larceny, the act of taking possession must involve a trespass. The property, therefore, must be taken

1. From the possession of the owner, actual or constructive, and

2. Without his consent.

At common law, it is well settled that larceny cannot be committed without a trespass. The taking, therefore, must be under such circumstances as to amount technically to a trespass. There must be such a taking, said an English judge, as would give rise to an action of trespass de bonis asportatis.84 To amount to a trespass, and therefore to constitute larceny, the property must be taken from the actual or constructive possession of the owner,85 and it must be taken without his consent. One who is himself in lawful possession of goods cannot com

82 See Rex v. Francis, 2 Strange, 1015, Beale's Cas. 699; Clemmons v. State, 39 Tex. Cr. R. 279, 45 S. W. 911.

83 Long v. State, 12 Ga. 293, 318. See post, § 370 et seq.

84 Reg. v. Smith, 2 Den. C. C. 449, 5 Cox, C. C. 533; 1 Hawk. P. C. 142, Mikell's Cas. 684. And see Rex v. Raven, J. Kelyng, 24, Beale's Cas. 631; Reg. v. Reeves, 5 Jur. (N. S.) 716, Mikell's Cas. 708, and other cases more specifically cited in the notes following.

85 Pyland v. State, 4 Sneed (Tenn.) 357. We shall use the word "owner" throughout our treatment of this subject, but, as we have seen, the person from whom property is stolen may be described as the "owner" in the indictment, though he has not the general ownership. See ante, § 313b.

mit a trespass in converting them to his own use, however fraudulent his intent may be, and therefore he cannot commit larceny in doing so. Nor can trespass or larceny be committed by taking goods with the free consent of the owner to part with his property therein, if the taking does not go beyond the consent. These principles will be applied in the sections following.

316. Conversion by Persons Having Lawful Possession.

(a) In General. Since a trespass cannot be committed unless the property is taken from the actual or constructive possession of the owner, and without his consent, it follows that one who has lawfully acquired the possession of property with the owner's consent, and without a felonious intent or fraud, does not commit larceny by afterwards fraudulently converting it to his own use. There is no larceny when he acquires possession, for there is then neither a felonious intent, which is an essential element of larceny, 86 nor a trespass, which is also essential; and there is no larceny when he converts the property, for there is then no trespass. It may therefore be laid down as a general rule that one who lawfully takes possession of property by the direction or with the consent of the owner cannot commit larceny by afterwards converting it to his own use, provided he has done nothing to terminate his right to possession.87 We are

86 Post, § 326.

87 Rex v. Raven, J. Kelyng, 24, Beale's Cas. 631; Leigh's Case, 1 Leach, C. C. 411, n., 2 East, P. C. 694, Beale's Cas. 632, Mikell's Cas. 731; Rex v. Banks, Russ. & R. 441, Beale's Cas. 632; Reg. v. Thristle, 3 Cox, C. C. 573, Beale's Cas. 633; Reg. v. Pratt, 6 Cox, C. C. 373, Beale's Cas. 635; Reg. v. Matthews, 12 Cox, C. C. 489, Mikell's Cas. 333; Rex v. Dingley, Show. 53, Leach, C. C. 835, Mikell's Cas. 684; Reg. v. Reeves, 5 Jur. (N. S.) 716, Mikell's Cas. 708; Reg. v. Reynolds, 2 Cox, C. C. 170; Reg. v, Hey, 3 Cox, C. C. 583; State v. England, 8 Jones (N. C.) 399, 80 Am. Dec. 334; State v. Fann, 65 N. C. 317; Hill v. State, 57 Wis. 377, 15 N. W. 445; Abrams v. People, 6 Hun (N. Y.) 491; Watson v. State, 70 Ala. 13; People v. Smith, 23 Cal. 280; and cases cited in the notes following. See, also, Murphy v. People, 104 Ill. 528.

speaking here of possession, as distinguished from the bare custody. As we shall presently see, a man may part with the custody of his goods and retain the constructive possession, and in such a case a different rule applies.

88

(b) Conversion by Bailees.-This principle applies in all cases of bailment. A bailee cannot be guilty of larceny at common law in fraudulently converting the property to his own. use, if he had no fraudulent intent when he acquired possession, and has done nothing before the conversion to terminate the bailment, for, as his possession is lawful, there is no trespass. Thus, one who hires or borrows a horse or other property without any fraudulent intent does not commit larceny in appropriating it to his own use during the continuance of the bailment.89 The same is true of a watchmaker or other mechanic who obtains possession of property for the purpose of repairing it, etc., and afterwards converts it to his own use, 90 and of carrier, pledgee, warehouseman, or any other bailee.91

(c) Possession Obtained with Felonious Intent. This rule does not apply in any case if a felonious intent existed at the time the property was obtained. If a person obtains the posses

88 See the cases above cited.

89 Rex v. Raven, J. Kelyng, 24 Beale's Cas. 631; Rex v. Banks, Russ. & R. 441, Beale's Cas. 632; Rex v. Meeres, 1 Show. 50, Mikell's Cas. 730; Watson v. State, 70 Ala. 13; People v. Smith, 23 Cal. 280. And see Rex v. Pear, 2 East, P. C. 685, Beale's Cas. 648; and Rex v. Semple, 1 Leach, C. C. 420, Mikell's Cas. 742.

90 Reg. v. Thristle, 3 Cox, C. C. 573, Beale's Cas. 633.

Where a man received materials to be made up into coats and returned, and, after making the coats, sold them, and converted the proceeds, it was held that he was not guilty of larceny unless he intended to steal at the time he received the materials. Abrams v. People, 6 Hun (N. Y.) 491, Mikell's Cas. 733. And see Reg. v. Saward, 5 Cox, C. C. 295, Mikell's Cas. 771.

91 Leigh's Case, 1 Leach, C. C. 411 n., 2 East, P. C. 694, Beale's Cas. 632, Mikell's Cas. 731; Reg. v. Matthews, 12 Cox, C. C. 489, Mikell's Cas. 333; Reg. v. Evans, Car. & M. 632, Mikell's Cas. 732; Rex v. Savage, 5 Car. & P. 143; Rex v. Fletcher, 4 Car. & P. 545; Reg. v. Hey, 3 Cox, C. C. 582; State v. England, 8 Jones (N. C.) 399, 80 Am. Dec. 334; State v. Fann, 65 N. C. 317.

C. & M. Crimes-29.