2

one continuous act as where one digs potatoes or cuts cab. bages and carries them away with no lapse of interval-it is trespass and not larceny.' Again, it is not enough that the property is taken for the purpose of destruction, merely. Such an offense would be punishable as malicious mischief; but it would want one of the essential ingredients of larceny-the lucri causa. Thus, it is not larceny, but malicious mischief, to take a buggy from the owner's stable in the night-time, to carry away and burn, to gratify a grudge against the owner.' And an indictment for larceny, at common law, for stealing a cow, is not supported by proof that the defendant shot the cow down and then cut off her ears. Such an act is not larceny, but malicious mischief. But every larceny must include a trespass, and the taking must have been under such circumstances as that the owner might maintain an action of trespass."

56. Distinction between larceny and embezzlement.'— Larceny was an offense at common law. Embezzlement is purely a statutory crime, and everything must be averred which is necessary to bring the case within the statute." There can be no larceny without a trespass or felonious caption. There can be no embezzlement unless the defendant is in the lawful possession of the property of his employer. Indeed, it is clear that if one if guilty of larceny he is not guilty of embezzlement, and, if guilty of embezzlement, he cannot be guilty of larceny. In charging larceny no allegation of any fiduciary relation existing between the thief and the owner of the goods is necessary. In embezzlement, no indictment is good without such an allegation." It is the breach of this fiduciary 1 Bell v. State, 4 Baxt. 426

State v. Hawkins, 8 Port 461. 'Pence v. State, 110 Ind. 95.

4 State v. Butler, 65 N. C. 309.

S People v. McDonald, 43 N. Y 61.

See, also, infra, § 372.

* State v. Gabriel, 88 Mo. 631; People v. Allen, 5 Denio 76; 1 Chit. Crim. Law, (1841,) 281-283; Archb. Crim. Pl. (1846) 50; 3 Chit. Crim. Law 962; 6 Amer. & Eng. Enc. Law 495, notes 4 and 5; Hamuel v. State, 5 Mo. 260; State v. Mohr, 68 Mo. 303; State v. Flint, 62 Mo. 393.

Fulton v. State, 13 Ark. 168; Com. v. Simpson, 9 Metc. 138.

• Washington v. State, 72 Ala. 272; Com. v. Butterick, 100 Mass. 1; Gaddy v. State, 8 Tex. App. 127; Wise v. State, 41 Tex. 139.

relation that constitutes the gist of the offense.' If the goods of a master, fraudulently appropriated by his servant, were in the actual or constructive possession of the master at the time they were taken, the offense of the servant will be larceny, and not embezzlement. Thus the offense of a teller, who, at night, abstracts from a safe which he cannot rightfully open, and converts to his own use money intrusted to his care during the day, is larceny and not embezzlement. But where defendant, the clerk and cashier of a city tax collector, feloniously took and converted money belonging to the city, as the money came lawfully into his hands, he was not guilty of larceny in converting it.

4

§ 57. Distinction between larceny and false pretenses.— The rule is that if, by trick or artifice, the owner of personal property is induced to part with the custody or naked possession to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner parts with not only the possession but the right of property also, the offense of the party taking the property will not be larceny, but that of obtaining goods by false pretenses. Thus, where one pays

1 State v. Johnson, 21 Tex. 775.

2 Com. v. Berry, 99 Mass. 428; 96 Am. Dec. 767.

3 Commonwealth v. Barry, 116 Mass. 1.

4 Snapp v. Commonwealth, 82 Ky. 173; Jones v. State, 59 Ind. 229; People v. Cruger, 102 N. Y. 510; 55 Am. Rep. 830, reversing 38 Hun 500. 'See, also, infra, § 401.

Smith v. People, 53 N. Y. 111; Kelly v. People, 13 N. Y. Supreme 509; Ross v. People, 5 Hill 294; Kellogg v. State, 26 Ohio St. 15. In Frink v. People, 77 N. Y. 114, reversing 16 Hun 396, it was held that where A. ships his goods to B. to be sold, and gives to the latter for that purpose the indicia of ownership, under an arrangement that B. shall advance and pay the freight, sell the goods, and account for the proceeds, deducting the freight; and B. sells the goods and converts the proceeds, he cannot be convicted of larceny of the goods; and this, although A. was induced to enter into the arrangement by false representations on the part of B., made in pursuance of a previous design on his part to obtain the goods, and to cheat A. out of them or the proceeds thereof.

A. represented to B. that certain works of which B. was a director had been destroyed by an explosion, and that the manager had sent him to inform him; that the manager had neglected to furnish him with money for his return expenses, and at his request B. gave

money voluntarily to another who has falsely represented himself as an officer having a warrant for such party's arrest for a crime, this does not constitute either larceny or robbery.' So one who by false representations induces another to part with the possession of money for the purpose of buying medicine for him, obtaining the money, is not guilty of larceny for misappropriating the money, but of obtaining money by false pretenses. But in some jurisdictions it is held that where a person gets possession of goods by false pretenses, intending to convert them to his own use, which he afterwards does, it is larceny; and this is undoubtedly true unless it appear that only a temporary trust or possession was extended to the party. Under the Texas statute, obtaining money by false pretenses constitutes theft."

him money therefor. Held, no larceny.—Thorne v. Turck, 94 N. Y. 90; 46 Am. Rep. 126. Defendant, after being told by the owner of certain eggs that he could not have them at a certain price, went to the owner's son, who had possession of them, and told him that he had bought them of his father at the price which had been refused. On this statement the son let him have them, and he paid for them. Held, that this was not theft, but swindling.--Frank v. State, (Tex. App.) 17 S. W, Rep. 936. It appeared that the accused had induced the prosecutor to give him a shilling for a purse, into which he had dropped three coins, by first showing the prosecutor three shillings, and then making it appear as if he had dropped them into the purse; and in like manner had induced the prosecutor to give him a half-crown for the purse into which he had made it appear that he had dropped two halfcrowns. Held, that he had been guilty, if at all, of obtaining the coins by false pretenses, and could not be convicted of larceny.-Reg. v. Solomons, 62 L. T. 672.

1 Perkins v. State; 65 Ind. 317; Williams v. State, 49 Ind. 367. Collins v. State, 15 Lea 68.

2 State v. Ludenthall, 5 Rich. 237; Anable v. Com., 24 Gratt. 563; Watson v. State, 36 Miss. 593.

Wilson v. State, 1 Port. 118. The clerk in a store referred the defendant to the owner, who refused to sell him certain articles except upon his father's order, which was not obtained. Subsequently, telling the clerk in the absence of the owner that he had made it all right with the latter, he took the goods. Held, larceny.-Com v. Wilde, 5 Gray 83. Where the owner of goods was prevailed upon by false pretenses, by the prisoner, who had engaged to sell them on commission, to send them to R. H. & Co., who did not mean to buy the goods, and had never agreed to do so, and the prisoner afterwards took the goods away from the store of R. H. & Co., and converted them to his own use, it was held that he was guilty of larceny.— People v. Jackson, 3 Park. 590.

'Porter v. State, 23 Tex. App. 295.

§ 58. Distinction between larceny and robbery.— The distinction between these two offenses lies in the presence in one of them and the absence in the other of the elements of force and putting in fear. Robbery cannot be committed without the existence of one or both of these elements. Thus, it is larceny, not robbery, to snatch from one his property without violence or putting in fear. In Texas, a conviction may be had for theft notwithstanding the evidence shows such a "putting in fear" as would have sufficed to sustain a prosecution for robbery.' So in Indiana, as larceny is included in robbery, the prosecution may elect to try the accused of the former, though by so doing it deprives itself of the right to prosecute for the latter."

1 State v. Sommers, 12 Mo. App. 374; Bonsall v. State, 35 Ind. 460; State v. Henderson, 66 N. C. 627. On a prosecution for the robbery of H., it was proved that H. was discovered by a policeman lying on the ground at night in an unconscious state from intoxication, with his pockets turned inside out, and the defendant standing astride his body, taking from his pockets property, and putting it in his own. Held not robbery, but larceny.-Brennon v. State, 25 Ind. 403. On a trial for robbery, it appeared that while A. was traveling in a wagon on the highway he was overtaken about nine o'clock in the evening by B., who, after some conversation, requested A. to examine a bank bill, which B. said he had found; that while A. was looking at the bill he felt B.'s hand in his pocket on his pocket-book, and immediately seized his arm, the prisoner at the same time snatching the bill; and that thereupon a scuffle ensued, in which A. was thrown out of the wagon, and the prisoner escaped with the pocket-book and bank bill. Held larceny, and not robbery.-State v. John, 5 Jones, 163, Battle, J., dissenting. Skipworth v. State, 8 Tex. App. 135.

Hickey v. State, 23 Ind. 21.

CHAPTER IX.

JURISDICTION.

59. General principles.

60. Jurisdiction as dependent on value.

61. Federal courts; conflict; Indian country.

62. Stealing in one state and carrying into another.

63. Stealing in one county and carrying into another. 64. Committing larceny in a moving train.

65. Affidavit; complaint; warrant, etc.

66. Search warrants.

3

§ 59. General principles.- Larceny is a felony at common law. In the federal courts, and also in Vermont, this offense cannot be prosecuted by information, it being an "infamous crime" within the meaning of the constitutional provisions." In Maine, it is held that a prisoner is guilty of theft at all times while he retains possession of the stolen goods, and may be punished under the revised statutes for goods still retained by him, though stolen prior thereto. In Colorado, where the law in force at the time a larceny was committed was repealed without any saving clause, a subsequent presentment, trial, conviction and sentence, was held to be without authority of law and void; and the fact that the legislature substituted for the repealed section substantially a similar provision was held to make no difference. The repeal being effected by express and positive words, the only question is the effect of the repeal. A theft committed in connection with a burglary may be treated as a distinct crime, and separate prosecutions may be maintained for each offense. The legislature may lawfully authorize cities to punish known thieves, etc., found in the municipality."

5

1 Sneed v. State, 5 Ark. 431; 41 Am. Dec. 102.

* Ex parte, McClusky, 40 Fed Rep. 71; State v. Magoon, 61 Vt. 45.

* State v. Somerville, 21 Me. 14; 38 Am. Dec. 248.

* Hirschburg v. People, 6 Colo. 145.

6

5 Smith v. State, 22 Tex. App. 350.

Morgan v. Nolte, 37 Ohio St. 23; 41 Am. Rep. 485.