his own use, which he subsequently does.' On the other hand, if the owner intends to part with the property and delivers the possession absolutely, and the purchaser receives the goods for the purpose of doing with them what he pleases, it is not larceny, although fraudulent means may have been used to induce him to part with them; and this rule seems to apply where the title is to remain in the vendor until the time set for payment, and the purchaser refuses either to pay or to return the property.' The possession having been lawfully obtained by the defendant, a subsequent conversion by him without the owner's consent is not larceny.*

§ 4. Obtaining possession by threats.-In England, the rule is that if a prisoner obtains money from the prosecutor by means of threats, in consequence of which a fear is engendered in the prosecutor's mind, inducing the payment over of a sum of money, a small part only of which was due to the prisoner, the offense is larceny." In this country such an offense would seem to be either blackmailing or robbery.

§ 5. Taking under claim of title. The rule is well settled that where one in good faith takes the property of another, honestly believing it to be his own, or that he has a right to its possession, such taking is not larceny, there being no criminal intent. If the evidence shows the taking to have been under a fair color of title and claim of right, the accused is entitled to an acquittal. To justify a conviction in such a

7

1 State v. Lindenthall, 5 Rich. 237; 57 Am. Dec. 743; Special Sessions Justices v. People, 90 N. Y. 12; 43 Am. Rep. 135.

2 Elliott v. Commonwealth, 12 Bush 176; Zschocke v. People, 62 Ill. 127; Zink v. People, 6 Abb. N. Cas. 413; reversing 16 Hun 396.

3 Krause v. Commonwealth, 93 Pa. St. 418; 39 Am. Rep. 762.

4 Lott v. State, 24 Tex. App. 723.

5 Reg. v. Lovell, 50 L. J., M. C. 91; 44 L. T. 319; 30 W. R. 416. See infra § 47.

1 Baker v. State, 17 Fla. 406; Lewis v. State (Tex.), 14 S. W. Rep. 1008; Seymour v. State, 12 Tex. App. 391; Small v. State, 18 Tex. App. 336; Boyd v. State, Id. 339; Com. v. Weld, Thach. Crim. Cas. 157; People v. Burton, 1 N. Y. Cr. 297.

8 Harris v. State, 17 Tex. App. 177; Newton Manuf. Co. v. White, 63 Ga. 697; State v. Homes, 17 Mo. 379; 57 Am. Dec. 269; Gardiner v. State, 33 Tex. 692.

case, the evidence must satisfy the jury, beyond a reasonable doubt, that the property did not belong to the accused, that he did not believe it to be his when he took it, and that it was fraudulently taken.'

If the evidence is uncertain, and the ownership is in doubt,' and there is evidence tending strongly to prove that defendant claimed to own the property taken, in good faith and on reasonable grounds, a conviction will be set aside.' In Texas, it seems that the taking of a stray animal, openly, and under claim that the owner has forfeited his property in it, is not Larceny.

§ 6. Bona fide purchase from thief or vendor without title. Possession of personal property being presumptive evidence of ownership, if one finds a thing in the possession of another who claims ownership, and in good faith buys it, he cannot be convicted of larceny, though the thing was stolen and the person from whom he bought was a stranger to him. A fortiori such purchaser cannot be held where his vendor believed the thing sold to be his own and takes upon himself the whole blame of the mistake. In Texas, the courts go much further, and hold that inasmuch as a necessary element of theft is the fraudulent taking of property from the possession of the owner, or some one holding possession for him, a taking by the party accused is essential to his guilt of theft, and no other subsequent connection with the stolen whether in good or in bad faith, will of itself constitute theft; wherefore it is error to charge, in substance, that the jury is authorized to convict if they believe that when he purchased the alleged stolen property from another, the defendant knew that the person from whom he purchased had no title to the property, and no right to sell it. But the law of Texas as to larceny (or theft as it is there called), is peculiar

property,

1

2

3

4

Alexander v. State, 9 Tex. App. 48; Wilson v. State, 27 Tex. App. 577.
Thompson v. State, 26 Tex. App. 466.

Tarin v. State, 19 Tex. App. 359; DeMint v. State, 26 Tex. App. 370.

Debbs v. State, 43 Tex. 650.

State

V. Boone, 70 Mo. 649.

Wilkinson v. State, 21 Tex. App. 501.

McAfee v. State, 14 Tex. App. 668. S. P. Krutson v. State, Id. 570;

in respect to the elements composing the offense, and the various ways in which it may be committed.

999

87. The Texas Rule.-Under the provisions of the Texas Penal Code "stealing" and "theft" are synonymous terms,' and embrace all unlawful acquisitions of personal property, punishable by law,' including false pretenses or "swindling. Thus, in that State, theft includes the obtaining of a parcel from a carrier by falsely pretending to be the owner, if done with intent to deprive the owner of the same, and to appropriate it. And under an indictment for theft one may be punished for wilfully removing live-stock of another from its accustomed range, without consent of the owner, provided the value of the animals be alleged and proved. One case holds that the fact that the property was obtained with the owner's consent, and without false pretext, is immaterial;" but a later one, in the same court, regards the non-consent of the owner as an essential element of the offense.' The rule seems to be recognized that if the property alleged to have been stolen came into the possession of the accused by lawful means, the subsequent appropriation of it is not theft; but, if the taking, though originally lawful, was obtained by any false pretext, or with intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete."

§ 8. Larceny of animals. One who professes to take up an animal as an estray, intending at the time to steal it, is guilty of larceny, such taking being a trespass which the

Deering v. State, Id. 599; Clayton v. State, 15 Tex. App. 348; Prator v. State, Id. 363.

1 Carr v.

State, 9 Tex. App. 463.

Martin v. State, 9 Tex. App. 293; Mathews v. State, 10 Tex. App. 279. 3 Davison v. State, 12 Tex. App. 214.

* Madden v. State, 1 Tex. App. 204.

Marshall v. State, 4 Tex. App. 549; Foster v. State, 21 Tex. App. 80; Smith v. State, Id. 133.

Keonio v. State, 4 Tex. App. 173. Lindley v. State, 8 Tex. App. 445. 8 Hudson v. State, 10 Tex. App. 215.

intent makes larceny;' and this though the taker up be ignorant as to the ownership of the animal. One who kills an animal, wilfully, and with intent to steal or convert the carcass to his own use, is, in Missouri, as guilty and punishable the same as if he had feloniously stolen the living animal; if, however, he kills an animal he finds upon his own premises, the larceny is complete before the killing.' So, also, the shooting and skinning of another's cattle with the fraudulent intent to appropriate their hides, is larceny; and it is larceny for one authorized by the owner's agent to take up a certain steer, to take up a much more valuable one, and dispose of it with fraudulent intent to deprive the owner of his property and appropriate it to his own use."

89. What is a single offense. The stealing of several articles at one and the same time constitutes but one indivisible offense, and a conviction or acquittal of the larceny of one of such articles is a bar to a prosecution for the larceny of the others; and the fact that the stolen articles belong to different persons makes no difference.' Such an offense may be prosecuted however, in some jurisdictions, either as one offense or as several distinct offenses at the option of the State; and this notwithstanding the statute provides a special penalty for stealing one of such articles. But the stealing, on the same night from places two hundred yards apart, of two parcels of poultry, was held to be two separate offenses."

1

Beatty v. State, 61 Miss. 18; People v. Kaatz, 3 Parker 129.

State v. Martin, 28 Mo. 530.

State v. Crow, (Mo. Sup.) 17 S. W. Rep. 745.

4 McPhail v. State, 9 Tex. App. 164.

Peck v. State, 9 Tex. App. 70.

• Territory

v. Heywood, 2 Wash. (U. S.) 180; Quitzow v. State, 1 Tex. App. 47; 28 Am. Rep. 396; Hudson v. State, 9 Tex. App. 151; 35 Am. Rep. 732; State v. Ward, 19 Nev. 297; Wilson v. State, 45 Tex. 76.

Lowe v. State, 57 Ga. 171; Lorton v. State, 7 Mo. 55; 37 Am. Dec. 179;

State v. Hennessey, 23 Ohio St. 339; 13 Am. Rep. 253; Hoiles v. United States, 3 McArthur, 370; 36 Am. Rep. 106; Wilson v. State, 45 Tex. 76; 23 Am. Rep. 602; Nichols v. Commonwealth, 78 Ky. 180.

8 Nevada

Waters

v. Lambert, 9 Nev. 321.

v. People, 104 Ill. 544.

10 Nichols v. Com., 78 Ky. 180.

§ 10. Attempts to commit larceny.

1

An attempt to steal

is a misdemeanor at common law, and is punishable as such in
Tennessee, where it is a criminal offense to assault another
with intent to commit larceny. Such statutes, however, are
to be strictly construed. Accordingly, where it was made a
felony to enter "any dwelling house, shop, etc., or other
building, etc., with intent to commit any felony," it was held
not an indictable offense to enter a 66
yard "' with intent to
steal. There must also be an overt act in connection with an
attempt to steal, in order to constitute an attempt to commit
larceny, of such a nature as would apparently, if uninter-
rupted, result in the commission of the crime.*

3

§ 11. Who is a principal offender.-The general rule is that the least degree of concert or collusion between the parties to an illegal transaction makes the act of one of them the act of all. Thus where one watches while his confederates rob a house, or steal horses, all are equally guilty. The "acting together" required by the Texas Code defining "principals," is not restricted to the very fact of the perpetration of the crime-one may be a principal in a theft committed by another in his absence, but pursuant to his directions, or to an agreement between them,' or when he assists in procuring and supplying the means by which the offense is committed. In North Carolina, all persons who counsel, aid, abet, or advise a larceny, are equally guilty with those who actually commit the offense, all larceny being punished as

8

1 Nicholson v. State, 9 Baxter 258.

2 Hayes v. State, 15 Lea 64.

3 Commonwealth v. Taggert, 3 Brews. 340.

Sipple v. State, 46 N. J. L. 197.

5 Taylor v. State, 5 Tex. App. 529; Hannon v. State, Id. 549; Wampler v. State, 28 Tex. App. 352.

Thomas v. State, 43 Ark. 149; Com. v. Lucas, 2 Allen 170; Selvidge v. State, 30 Tex. 60.

'Welsh v. State, 3 Tex. App. 413; Commonwealth v. Barry, 125 Mass. 390; Berry v. State, 4 Tex. App. 492; Bybee v. State, 4 Tex. App. 505; Watson v. State, 21 Tex. App. 598; Smith v. State, 21 Tex. App. 107.

8 Watson v. State, 21 Tex. App. 598; Wells v. State, 4 Tex. App. 20; Scales v. State, 7 Tex. App. 361; McKeen v. State, Id. 631; Sutton v. State, 16 Tex. App. 490.