owner of goods had them shipped for exportation by shipping agents, who gave the usual bond to the custom house; but the owner, for the purpose of defrauding the revenue, had the bales relanded, the goods taken out, and rubbish substituted for them, in which state they were put on board a foreign vessel the owner being indicted for this as a larceny, four of the judges held that it did not amount to that offence, as his intent was, not to cheat or charge the agents, but to defraud the crown; but seven of the judges held it to be larceny, because the agents having given a bond to the custom house, the fraud would have the effect of charging them, by rendering them liable to a suit upon their bond. R. v. Wilkinson and Marsden, R. & Ry. 470.

A wife cannot be guilty of larceny of the goods of her husband except in those cases in which the husband himself might be guilty, as just now mentioned; for they are one person in law. 1 Hale, 514. Where the wife of the prosecutor, and a man with whom she afterwards cohabited, jointly took money and goods belonging to the husband: the judges held that an indictment for larceny would lie against the man, although not against the wife; and that notwithstanding the wife's consent, the property must be considered as having been taken invito domino. R. v. Tolfree, Ry. & M. 243. Or if the wife take the goods, even her own clothes, and give them to an adulterer, or to a person with whom she intends to live in a state of adultery, the man will be guilty of larceny, the wife not. R. v. Tollett and Taylor, Car. & M. 112. But if the wife alone take away the husband's goods, and take them to the adulterer's lodgings, and they are placed by her in a room where the adultery takes place, and where they are afterwards found the adulterer cannot be convicted of larceny merely on this proof, unless it can be proved that he had personal possession of them. R. v. Rosenberg, 1 Car. & K. 233. But if a wife deliver the husband's goods to any other stranger, the latter cannot be deemed guilty of larceny in taking them. 1 Hawk. c. 33, 8. 32.

A joint tenant, or tenant in common of a personal chattel, cannot be guilty of larceny, by taking it, and disposing of the whole of it to his own use; it is merely the subject of a civil remedy. 1 Hale, 513. But if he take it out of the hands of a bailee, with whom it is left for safe custody or the like, and the effect of such taking will be to charge the bailee, it is otherwise. Therefore where a woman, a member of a benefit society, entered the room of a person, with whom a box containing the funds of the society, was deposited for safe custody, and took and carried away the box, with intent to appropriate the contents to her own use: the judges were clearly of opinion that this was larceny, the bailee being answerable to the society for the property. R. v. Phœbe Bramley, R. & Ry.

478. R. v. Cain, Car. & M. 309. But where money belonging to a benefit society was deposited in a box, and placed in the custody of one of the members, and his wife broke open the box and stole the money: the judges held that an indictment as for larceny could not be maintained against her; for a wife cannot be guilty of stealing the goods of her husband, or goods in which he has a property jointly with others. R. v. Willis, R. & Ry. 470.

As to the mode of proceeding against juvenile offenders,— persons under the age of sixteen, charged with simple larceny, see ante, p. 59. And as to larceny by clerks and servants, tenants and lodgers, see post.

Evidence.

1. Presumptive or Circumstantial Evidence of the Larceny. Where there is no direct evidence of the larceny, by some person who actually saw the defendant commit it, his guilt can only be proved from his own admissions, or by evidence of facts from which the jury may fairly presume it. See ante, p. 135. Where goods stolen, are very shortly afterwards found in the posession of a man, who is unable satisfactorily to show by evidence in what manner he came by them, the presumption is that he is the person who stole them. It is therefore a very usual way of proving a larceny, to call the prosecutor or other person, in whose possession the goods were at the time they were stolen, to prove when he last saw them in his possession, and when he missed them; then to call some person who can prove that they were in the possession of the prisoner very shortly after they were stolen; and lastly to call some person to identify and prove the property in the goods. This is deemed good primâ facie evidence of the larceny, and has the effect of throwing the onus upon the prisoner of proving that he honestly came by them. The presumption also may be very much strengthened, by proof of any circumstances of suspicion in the conduct of the defendant, with relation to the goods in question: such as selling them at an undervalue; his pawning them or getting some other person to pawn them for him in a feigned name; his concealing or disguising them; his denying their being or having been in his possession; his giving a false account of how or when he came by them; his being near the place where, and about the time when, they were stolen; or the like. In one case, R. v. Crowhurst, 1 Car. & K. 370, which was an indictment for stealing a piece of wood, it appeared that when it was found in the prisoner's possession, he said he had bought it of one Nash, who lived about two miles off; but Nash was not called as a witness for the prosecution: Alderson, B., laid it down as a general prin

ciple, that when a man in whose possession stolen property is found, gives a reasonable account how he came by it, as by telling the name of the person from whom he received it, and who is known to be a real person,-it is incumbent on the prosecutor to show that such account is false. See 2 East, P. C. 665. And in a more recent case, Ld. Denman, C. J., said that he agreed with Baron Alderson in what he had stated on that occasion, and that the case was correctly reported. R. v. Smith, 2 Car. § K. 208. Before the case above mentioned, however, it was the generally received opinion, that if a person set up that defence, either before the magistrate or at the trial, it was his duty to produce the witness to prove it, or if he were too poor to do so, the magistrate should send for the person named, and examine him if the prisoner wished it. However if the account given by the prisoner be not a reasonable one, if for instance he say on one occasion he bought the article, and on another that he and two others found it hid in a hay-rick, R. v. Dibby, 2 Car. & K. 818, or the like, -this will impose no such burthen on the prosecutor. The possession of the goods by the prisoner, however, must be proved to be very recent after the felony committed. Where the goods were found in the prisoner's possession sixteen months after they were stolen, this was holden to be no evidence that he stole them. Anon. 2 Car. & P. 459. And in another case, where the stolen property was found in the prisoner's possession three months after it was stolen, Parke, J., ordered the prisoner to be acquitted without putting him upon his defence. R. v. Adams, 3 Car. & P. 600. But where cloth was stolen in an unfinished state, and was found in the possession of the prisoner three months afterwards in the same state, Patteson, J., held that under the circumstances the possession was sufficiently recent to raise the presumption of the prisoner's guilt. R. v. Partridge, 7 Car. & P. 551. However, in order to raise this presumption from the prisoner's possession of the goods, the previous possession of them by the prosecutor or his bailee, and the loss of them, must be clearly proved. Where upon an indictment for horse stealing, the prosecutor proved that he put the horse to agist with a person at a distance ; that having heard from that person of the loss of the horse, he went to the field where it had been put to feed, and discovered it was gone; but the agister or his servant was not called, nor was any other evidence given of the loss of the horse: Gurney, B., held this to be insufficient, for it was consistent with all this that the prisoner might have obtained the horse honestly from the agister, and not by felony. R. v. Yend and Haines, 6 Car. & P. 176.

There may be cases in which, from circumstances, it may appear doubtful whether the possession of the goods by the prisoner does not prove, rather that he received them from

another who stole them, than that he stole them himself. Where goods stolen were shortly afterwards found concealed in an old engine-house, and the place being watched, the prisoners were observed to go there and take them away: the prisoners being indicted as receivers, there being no evidence of the goods having been stolen by any of them, Patteson, J., after remarking that this seemed to be evidence more of stealing than receiving, told the jury that if they were of opinion that the prisoners stole the goods, they must be acquitted on the present indictment; and the jury being of opinion that the prisoners stole them, they were accordingly acquitted, R. v. Dursley et al., 6 Car. & P. 399. In all such cases, and indeed in all cases where there is only presumptive or circumstantial evidence of the defendant's guilt, it is prudent to add to the count for larceny a count for receiving the goods knowing them to have been stolen. See post, tit. "Receiving."

It is only in the absence of direct evidence of the larceny, or where there is such evidence but it cannot prudently be depended upon, that the above mode of proving it by circumstantial evidence is resorted to. Where there is direct evidence, however, the larceny of course is proved by the persons who actually saw the prisoner commit it; and if there be at all a doubt whether their testimony will be believed by the jury, such part of the above circumstantial evidence may be given, as may be necessary to strengthen and confirm it.

Although there be but one count for larceny, the prosecutor may give in evidence three distinct larcenies by the prisoner of different portions of the goods mentioned in the indictment, at different times within six months from the first to the last of them. 14 & 15 Vict. c. 100, s. 17.

2. Direct Evidence of the Larceny.

The direct evidence of the larceny, consists of proof of the taking, the carrying away,—and the felonious intent:

1. The prosecutor must prove the taking:-and the taking in larceny, we have seen (ante, p. 362), is actual or constructive.

An actual taking is, where the party actually takes the goods out of the possession of the owner or his bailee, invito domino, by force or by stealth, or the like, with a felonious intent. Upon this it is not necessary to make any further observation; but in what I am about to state, I shall confine myself entirely to the doctrine of constructive takings in larceny.

A constructive taking, is, where a man, with a felonious

intent to convert goods to his own use, or to deprive the owner wholly of them, obtains possession of them by some trick or artifice or the like-by which he acquires the possession only, but which has not the effect of transferring any right of property in the goods from the owner to the party who has thus obtained possession of them; if a right of property pass, the offence is not larceny, but the obtaining of goods under false pretences. This distinction is strongly exemplified by the following

cases :

Davenport was indicted for larceny, in stealing two silver cream ewers from the prosecutor, a silversmith; he was formerly servant to a gentleman, who dealt with the prosecutor; sometime after he left this gentleman's service, he called at the prosecutor's shop, and saying that his master (meaning the gentleman whose service he had left) wanted a silver cream ewer, desired the prosecutor to give it to him, and put it down to his master's account; the prosecutor gave him two ewers, in order that his master might select that which he liked best; the prisoner took both, sold them, and absconded: the prosecutor at the trial swore that he did not charge his customer with these cream ewers, nor did he intend to charge him with either, until he should have first ascertained which of them he would have chosen; it was objected for the defendant, that this amounted merely to the obtaining of goods by false pretences, and not to larceny; but Bayley, J., held, that as the prosecutor had parted with the possession only, and not the right of property, the offence was larceny; if indeed he had sent but one cream ewer, in the execution of the pretended order, and had charged the customer with it, it would have been otherwise. R. v. Davenport, cor. Bayley, J., Newcastle Spring Assizes, 1826. In a case similarly circumstanced, but where the person in whose name the goods were obtained was not called as a witness, nor was there any evidence that she had not sent the prisoner for the goods: Patteson, J., held that on that account the prisoner should be acquitted; for non constat but that the prisoner had been sent for the goods, as she had stated, and had delivered them to the person who sent her. R. v. Ann Savage, 6 Car. § P. 143. The substance of this last decision is, that the pretence by which goods have been obtained, must be proved to be false, in larceny, in the same manner as upon an indictment for obtaining them by false pretences. So, where it appeared that a servant of the prosecutor, being sent to a fair with some oxen, to sell them for ready money, the prisoner bargained with him, and desired him to go to the inn, and he would pay him for them; he went accordingly to the inn, but the prisoner never came; and upon his going back to the fair, he found that the oxen were gone; the prisoner had taken them, and sold some of them: upon the trial of the