isfactory evidence that a letter or package was put into the mail for transmission is that of the person who deposited it in the post-office; and the best evidence of its loss is that of the person to whom it was addressed.'

1 United States v. Crow, 1 Bond, 51.

CHAPTER III.

THE FELONIOUS INTENT IN LARCENY.

§ 18. No larceny in absence of such intent.

19. Intent must be to deprive owner of his property.

20. Intent to convert to taker's use unnecessary.

21. Intent to temporarily deprive owner.

22. Intent to hold for reward.

23. Intent must exist at time of taking.

24. Scope and extent of this rule.

25. Its limits and exceptions.

18. No larceny in absence of such intent. To constitute the taking of another's property a larceny, it must not only be tortious, but it must also be accompanied with circumstances showing a felonious intention.' Thus a person who takes property of another by mistake, without felonious

1 Smith v. Shultz, Scam. 490: 32 Am. Dec. 33; Blunt v. Com., 4 Leigh 689; 26 Am. Dec. 341; Offutt v. Earlywine, 4 Blackf. 460; 32 Am. Dec. 40; State v. Hawkins, 8 Port. 461; 33 Am. Dec. 294; State v. South, 4 Dutch. 28; 75 Am. Dec. 250; Lancaster v. State, 3 Cold. 339; 91 Am. Dec. 288; Wilson v. State, 18 Tex. App. 270; 51 Am. Rep. 309; Ainsworth v. State, 11 Tex. App. 339; People v. Frank, 1 Idaho 200; People v. Walker, 38 Mich. 156; People v. Pollock, 51 Hun 613; Hart v. State, 57 Ind. 102; Hornbeck v. State, 10 Tex. App. 408; Knutson v. State, 14 Tex. App. 570; Deering v. State, Id. 599: Lott v. State, 20 Tex. App. 230; Landin v. State, 10 Tex. App. 63; Mullins v. State, 37 Tex. 337; Martindale v. State, 19 Tex. App. 333; People v. Woodward, 31 Hun 57; Robinson v. State, 1 Coldw. 120; 78 Am. Dec. 487; Umphrey v. State, 63 Ind. 223; Williams v. State, 44 Ala. 396; Winn v. State, 11 Tex. App. 304; Lawrence v. State, Id. 306; Ainsworth v. State, Id. 339; United States v. DeGroat, 30 Fed. Rep. 764.

intent, cannot be made criminally liable because the property is ultimately lost through his negligence.' In applying this principle no larceny was committed where regular customers of a saloon-keeper applied about midnight to be served, and he refused to get up and serve them, and they carried away refreshments, but next day offered to pay for what they had taken; nor where defendant picked up the property on the road, carried it home, made no attempt to conceal it, but, on the contrary, tried to find its owner; nor in taking a horse which had run astray for years without a known owner.*

So, where it is shown that property was delivered to defendants under a contract of sale, and that they were in possession of it several months holding and using it under the contract, and it does not appear that they had any other than an honest intent at the time they contracted for and received the property, they were not guilty of larceny in carrying it away wishout paying for it. Again where, upon a settlement between landlord and tenant, under which an unexpired lease was to be surrendered by the landlord, upon the payment of a sum of money by the tenant, a misunderstanding arose as to the amount of the money, and the tenant carried away the lease, the receipt for the money, and the money offered in payment, such taking was not larceny."

In Texas, the test of the guilt of one who took an article with the leave of one asserted to be the owner's agent is not whether such an one was in fact the owner's agent, but whether defendant believed him to be such." And one can

not be convicted of larceny or of receiving stolen goods in that State, upon proof merely that he bought the chattel from another with notice that it had been stolen; but proof of a felonious intent to convert it to his own use is neccessary."

1 Billard v. State, 30 Tex. 367; 94 Am. Dec. 317.

? Mason v. State, 32 Ark. 238.

3 McLaren v. State, 21 Tex. App. 513.

4 Johnson v. State, 36 Tex. 375. See, also, Ritcher v. State, 38 Id. 643. State v. Shermer, 55 Mo. 83.

Com. v. Robinson, Thach. Cr. Cas. 230.

Heskew v. State, 18 Tex. App. 275.

8 Parchman v. State, Tex. App. 228; Logan v. State, Id. 408.

In Devine v. People, while the accused and others were drinking in complainant's saloon, one of the party gave a dollar bill to the bar-tender, who gave back the change, and put the bill in the drawer, which he left open. While the bartender was stooping to get a bottle from under the counter, accused reached over and took the bill from the drawer. He made no attempt to secrete it, and at once returned it saying that it was done in fun," and the court held that these facts did not justify a conviction of petit larceny.'

2

$ 19. Intent must be to deprive owner of his property.The general rule is that the articles taken must have been taken fraudulently and secretly, with the felonious intent of permanently depriving the owner of them. The taking must be an actual and intended fraud upon the rights of another; it must include the purpose and intent to defraud; it must be an intentional taking without the consent of the owner, an intentional fraud and an intentional appropriation."

While it is true that in Texas, under an ordinary indictment for theft, a conviction may be had on proof of a taking, with the owner's consent obtained by false pretext or with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker, yet in such a case the proof must show affirmatively that the taking was obtained by means of the false pretext or with the intent to de-prive the owner of the value of the property and to appropriate the same to the taker's own use.* If one takes a horse with intent to convert him to his own use, and wholly to deprive the owner of his property, it is larceny; but otherwise, if he took the horse to facilitate his escape, and left him at a livery stable, without any intention to deprive the owner of his property. In the latter case it would only be a breach of

2

120 Hun 98.

* Dodd v. Hamilton, 2 Tayl. 31; State v. Hawkins, 8 Port. 461; Smith v. Schultz, 1 Scam. 490; Com. v. Low, Thach. Cr. Cas. 477; Felter v. State, 9 Yerg. 397; State v. Ledford, 67 N. C. 60; Johnson v. State, 36 Tex. 375; U. S. v. Durkee, 1 McAll. 196.

3 Wolf v. State, 14 Tex. App. 210. 4 Dow v. State, 12 Tex. App. 343. 'State v. York, 5 Harring. 493.

trust.' So an indictment for larceny of a slave will not be supported by proof that defendant took the slave from the possession of his master, with the intention of enabling him to obtain his freedom by sending him to a free state."

3

4

§ 20. Intent to convert to taker's use unnecessary. It is not necessary to constitute larceny that the taking should be in order to convert the thing stolen to the pecuniary advantage or gain of the taker. It is sufficient if the taking be fraudulent, and with an intent wholly to deprive the owner of the property. Thus it was larceny where the prisoner ran away with a horse and carriage, without the owner's knowledge or consent and with no intention of returning them, and afterwards abandoned them in the street; also where the prisoner went secretly and unlawfully to the stable of another, led therefrom a jack belonging to the latter, and, when fifteen or twenty feet from the door of the stable, killed the jack and left it lying on the owner's premises. It does not matter that the object of the taking was revenge and not gain. So the taking of money with the design to apply it on a debt which the person from whom it is taken owes the taker, is larceny.' And one who steals a coat, in the pocket of which is a watch of which the thief does not know, steals the watch.*

6

The taking

§ 21. Intent to temporarily deprive owner. of the property of another, with the intent of only depriving the owner of the use of it temporarily, is not larceny; as where defendant took a locket and necklace belonging to his mistress, not to steal it, but to prevent her going to a place of

1 State v. Self, 1 Bay, 242.

2 State v. Hawkins. 8 Port. 461; 33 Am. Dec. 294.

3 Hamilton v. State, 35 Miss. 214; People v. Juarez, 28 Cal. 380; State v. Ware, 10 Ala. 814; State v. Caddle, (W. Va.) 12 S. E. Rep. 1098; State v. Slingerland, 19 Nev. 135; Williams v. State, 52 Ala. 411; State v. Davis, 38 N. J. L. 176; Coombes v. State, 17 Tex. App. 259.

7 Com. v. Stebbins, 8 Gray, 492. Contra, Wolf v. State, 14 Tex. App. 210. 8 Stevens v. State, 19 Neb. 647.

* State v. South, 4 Dutch. 28; 75 Am. Dec. 250; Fields v. State, 6 Coldw.

524.

amusement;' or where the accused took his neighbor's horse publicly in the street of a town, leaving word that he had done so, and manifesting an intention to return him after riding him a few miles; and where the defendants broke into a tool-house of a railroad company, took out a hand-car, propelled themselves for twelve miles on the track, and left it at the side of the track." 22. Intent to hold for reward. The intent need not be to defraud any particular person, wherefore one may be guilty of theft, although he does not know the owner of the property stolen. Consequently the wrongful taking and carrying away of the property of another, without his consent, with intent to conceal it until the owner offers a reward for its return, and for the purpose of obtaining the reward, is larceny. Thus taking a horse trespassing on the taker's land, with intent to conceal it either until the owner shall offer a reward and then to return it and claim the reward, or until the owner may be induced to sell it for less than its value, is larceny."

8

23. Intent must exist at time of taking. To constitute larceny there must have been a felonious intent at the time of the taking;' and no subsequent appropriation, however fraudulent, is sufficient, if the taking was lawful. Thus there is no larceny where, after an innocent taking by mistake, the property was converted to the use of the defendant with a felonious intent.' And to make one who sells a horse

1Cain v. State, 21 Tex. App. 662.

* McDaniel v. State, 33 Tex. 419.

3 State v.

4

Ryan, 12 Nev. 401.

Lawrence v. State, 20 Tex. App. 536.

Berry v. State, 31 Ohio St. 219; 27 Am. Rep. 506.

Com. v.

Mason, 105 Mass. 163; 7 Am. Rep. 507.

Fulton v. State, 13 Ark. 168; McDaniel v. State, 8 Smed. & M. 401; State v. Stone, 68 Mo. 101; Wolf v. State, 14 Tex. App. 210; State v. Ware, 62 Mo. 597; Dow v. State, 12 Tex. App. 343; State v. Wood, 46 Iowa, 116; Wilson v. State, 20 Tex. App. 662; Roberts v. State, 21 Tex. App. 460. * People v. Call, 1 Denio 120, 43 Am. Dec. 655; Billard v. State, 30 Tex. 367; 94 Am. Dec. 317; Morrison v. State, 17 Tex. App. 34; 50 Am. Rep. 120; People, 39 N. Y. 459; Cunningham v. State, 27 Tex. App. 479; Quitzow v. State, 1 Tex. App. 65; Hernandez v. State, 20 Tex. App. 151;

Wilson v.

Lott v.

State, 24 Tex. App. 723.

'People v. Miller, 4 Utah, 410.