1

petty larceny in that State, in which offense all participants are principals. In Georgia it has been held that one who steals property from others who had previously stolen it, becomes a principal offender."

§ 12. Who is an accessory or accomplice. The mere fact that one renders aid in a larceny does not necessarily render him a principal. Thus, if an animal was stolen by other persons, with or without the prisoner's procurement, brought to his premises in his absence, after the larceny by them was complete, there received by him on his return, and slaughtered, he aiding in the slaughtering, in removing the meat, and in appropriating it to himself and some of his confederates, his offense is not that of a principal felon. If he procured the larceny, he is an accessory both before and after the fact; and if he did not procure it, but knew of it, he is an accessory after the fact, or guilty of the equivalent misdemeanor of receiving stolen goods, knowing them to be stolen.' So if goods be stolen by a servant, under his master's instructions, who is absent, and the master afterwards assists in secreting the goods, he can only be held as an accessory.*

One is guilty of aiding and abetting a larceny if, in accordance with an agreement therefor, he takes care of the family of the felon while the latter is disposing of the stolen property; but knowledge that the property has been stolen is essential to the guilt of one who aids the thief in disposing of it." An accomplice in a theft is one whose acts are auxiliary only; he need not have had any connection with the taking, it is enough that he afterwards became connected with the

offense."

1 State v. Gaston, 73 N. C. 93; 21 Am. Rep. 459; Com. v. 7; 79 Am. Dec. 693.

2

Conner v. State, 25 Ga. 515; 71 Am. Dec. 184.

Gannett, 1 Allen

3 Minor v. State, 58 Ga. 551; Cohea v. State, 9 Tex. App. 173.

Norton v. People, 8 Cow. 137; Vincent v. State, 9 Tex. App. 46.

5 State v.

6

Stanley, 48 Iowa 221.

Buchanan v. State, 26 Tex. App. 52; State v. Empey, 79 Iowa 460.

Cook v. State, 14 Tex. App. 96; Allison v. State, Id. 122; O'Neal v. State,

Id. 582.

8 House v. State, 16 Tex. App. 25.

If one pretending, by way of artifice, to be an accomplice, but believed by the accused to be a real accomplice, performs acts at the instance of the owner of the goods, amounting to the physical constitutents of larceny, the pretended accomplice represents the owner as to such acts, and not the accused, although the accused may have concurred in the acts and thought he prompted them. Such acts of the supposed accomplice cannot be imputed to the accused as legally criminal, inasmuch as they really proceed from the joint will of the owner and the accomplice, and not from the joint will of the accused and the accomplice.'

In North Carolina there are no accessories before the fact."

1 Williams v. State, 55 Ga. 391.

2 State v. Fox, 94 N. C. 928; State v. Stroud, 95 N. C. 626.

CHAPTER II.

THE DIFFERENT KINDS OF LARCENY.

§ 13. Grand and petty larceny.

14. Larceny by trick and device.

15. Larceny from house or building.

16. Larceny from the person.

17. Larceny from the mail.

§ 13. Grand and petty larceny. Whether the offense of one who commits larceny be grand or petty larceny depends upon the value of the subject matter taken. Formerly, in England, the stealing of property above the value of twelve pence was grand larceny, while stealing less was petty larceny. In some of the States the distinction between grand and petty larceny is still retained, but the money value of the property taken must be much higher to render the offense grand larceny. In New York, to raise the offense to the dignity of grand larceny the value of the property stolen must exceed $25, while in California it must exceed $50. criterion of value is the price which the subject of the larceny would bring in open market. If the stolen property had any intrinsic value, however small, the offense amounts to petty larceny. But the value of sundry articles, stolen at different times and by distinct acts of larceny, although from the same person, cannot be added together to make the offense grand larceny."

3

The

In some of the States the distinction has been altogether abolished by statute, all thefts being larcenies, no degrees in

2

4

1 Abolished by 7 and 8 Geo. IV. c. 29, § 2.

Rap. & L. Law Dict., "Grand larceny."

3 People v. Willet, 102 N. Y. 251.

527.

People v. Marshall, 59 Cal. 391; People v. Cheong Foon Ark, 61 Cal.

$ State v. Doepke, 68 Mo. 208; 30 Am. Rep. 785; People v. White, 1 N. Y. Cr. 466.

'Scarver v. State, 53 Miss. 407.

5

the offense being recognized;' in others the stealing of certain kinds of property is made grand larceny, irrespective of its value, and such statutes are held to be valid. These enactments punish the stealing of horses,' and other living domestic animals, outstanding crops, property contained in railroad cars, or in a dwelling house,' or on the person of the victim.' Again, in some jurisdictions, larceny committed in the commission of burglary is grand larceny irrespective of value.' In others the distinction between the two grades still exist, and for a full view of them the statutes of the States in question should be consulted. 1o

6

10

14. Larceny by trick and device.-If by trick or artifice the owner of property is induced to part with the custody or naked possession of it to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny.' Thus it is larceny where the defendants so fraudulently conduct a gambling game or lottery as to give the prosecutor no chance of winning, and he parts with his money through fraud or fear." So a conviction of larceny is warranted on proof that the

1 State v. Murray, 55 Iowa 530; Exp. Bell, 19 Fla. 608; Boody v. People, 43 Mich. 34.

2 People v. Townsley, 39 Cal. 405.

3 Wells v.

State, 11 Neb. 409; State v. Pierre, 39 La. An. 915.

4 Hunt v. State, 55 Ala. 138; Golden v. State, 63 Miss. 466.

'Pinckard v. State, 62 Ala. 167.

State v. Sharp, (Mo. Sup.) 17 S. W. Rep. 225.

* State v. Butterfield, 75 Mo. 297; State v. Brown, Id. 317; State v. Riley, 100 Mo. 493.

8 Johnson v. Commonwealth, 24 Gratt. 555.

9 State v. Brown, 73 Mo. 631.

10 See, also, Jenkins v. State, 50 Ga. 258; State v. Willis, 66 Mo. 131; State v. Henderson, 35 La. An. 45; State v. Sharp, (Mo. Sup.) 17 S. W. Rep. 225; People v. Rawson, 61 Barb. 619.

11 Smith v. People, 53 N. Y. 111; 13 Am. Rep. 474; Huber v. State, 57 Ind. 341; Loomis v. People, 67 N. Y. 322; 23 Am. Rep. 123; State v. Bryant, 74 N. C. 124; Reg. v. Hollis, L. R., 12 Q. B. D. 25; 49 L. T. 572; Walters v. State, 17 Tex. App. 226; 50 Am. Rep. 128.

12 U. S. v. Murphy, 4 McArth. 375; 48 Am. Rep. 754; Miller v. Com., 78 Ky. 15; 39 Am. Rep. 194; People v. Shaw, 57 Mich. 403; 58 Am. Rep. 372; Hall v. State, 6 Baxt. 522; People v. Tweed, 1 N. Y. Cr. 97; Defrise v. State, 3 Heisk. 53.

defendant went into a shop and asked to buy the chattel, but was referred by the clerk to the owner, who refused to sell it to him except upon his father's order, which was not obtained, and thereafter the defendant asked the clerk to be shown the chattel, which he took and carried away, saying to the clerk that he had made it all right with the owner.' If the false token used be a written instrument it need not be such as, if genuine, would be of legal validity.' If the property is obtained by defendant through the connivance of a servant of the owner, the defendant may be guilty of larceny though the servant's offense is embezzlement.' The obtaining possession of a soldier's discharge paper, by falsely personating the owner,* and the getting possession of the property of another by the suing out of a writ upon a fictitious demand, have been held to be larceny.'

1 Com. v. Wilde, 5 Gray 83; 66 Am. Dec. 350.

* State v. Henn, 39 Minn. 464.

* State v. McCarty, 17 Minn. 76.

* Com. v. Lawless, 103 Mass. 425.

'Com. v. Low, Thach. Cr. Cas. 477.

The following cases afford good illustrations of the application of the principles stated in the text:

Defendant and his confederates inveigled the owner of horses into a sale stable, and while defendant's confederates were trying to trick the owner of the horses into believing that he had exchanged them for certain mules, defendant went off with them against the owner's will and remonstrance. Held, that the defendant was properly convicted of larceny.—State v. Zumbunson, 86 Mo. 111.

B. agreed to pay A. $105 for his horse, if B. could sell his (B.'s) horse for $100. C. thereupon offered to pay B. $100 for his horse. It was then arranged that A. was to get B.'s horse, take it to C. and receive from him $100. He went to B's house, left his horse there, and, taking B.'s horse, went to the house designated as C.'s, but C. did not live there and was not to be found. A. could not afterwards find B., nor his own horse. Held, that the property in A.'s horse had not passed, and that B. and C. could be convicted of larceny.-United States v. Rodgers, 1 Mackey (D. C.), 419.

On indictment for larceny of a hog, it appeared that defendant shot the hog and hid it; that he then went with another to the owner, and told him that they had found one of his hogs killed in the field; that it was spoilt and unfit for use; that the owner told him he might have it for soapgrease; that the owner found it at defendant's house next morning, and that it was not spoilt. Held, that, as possession was obtained by trick or fraud, there was a felonious taking and carrying away.-Frazier v. State, 85 Ala. 17.

Defendant falsely represented to the wife of M. that M. had been arrested