[*915] person,* and wickedly intending to vilify, scandalize, and bring into disgrace the characters of one J. L. one R. W. and one W. H. M. they the said J. R. and W. H. being at the time of the committing the offence hereinafter mentioned, commissioners duly appointed under and by virtue of an act of parliament, passed in the thirty-ninth year of the reign of his present majesty, intituled, An act to repeal the duties imposed by an act made in the last session of parliament for granting an aid and contribution for the prosecution of the war, and to make more effectual provision for the like purpose by granting certain duties upon income in lieu of the said duties, for hearing and determining appeals relative to the duties upon income, and by virtue of such appointment acting as such commissioners, in the hearing and determining appeals arising in the respective wards of Gumberland, Eskdale and Leath, in the said county of Cumberland, and wickedly and maliciously intending to vilify the proceedings of the said commissioners in hearing and determining appeals as aforesaid, and to bring into contempt and hatred, his majesty's government, on, &c. at, &c. wickedly, wilfully, falsely and contemptuously, in the presence and hearing of the said commissioners, whilst they the said commissioners were acting in the execution of their said office, in hearing and determining appeals relating to the said duties upon income, at a certain meeting duly holden by them for that purpose, on the said, &c. at, &c. uttered and pronounced, and loudly published to the said commissioners, these false, contemptuous, malicious, scurrilous and abusive words, of and concerning the said commissioners, and of and concerning the proceedings of the said commissioners in the execution of their said office following, that is to say, You, (meaning the said J. R. and W. H. as such commissioners as aforesaid) are a blackguard perjured pack, and I (meaning the said M.) will bring you before the court of [*916] King's bench; to the great scandal and* infamy of the said J. R. and W. H. as such commissioners as aforesaid, in disparagement of the said proceedings of the said commissioners, in disturbance of the administration of justice, and in contempt of the government of our lord the king, and his only to the justice in his private ca- names of ass, fool, coxcomb, or blockhead, no indictable offence will have been committed. 2 Stra. 1157, 8. 2 Salk. 698. 2 Campb. 142. And it seems that to make any words thus indictable they must be spoken to the magistrate, and not in his absence. 2 Campb. 142. 2 Stra 1157. 1 Stra. 420, 1. laws, and against the peace, &c. And the attorney general, Second &c. that whilst the said J. R. and W. H. being such com- count. missioners for hearing and determining appeals relating to the duties upon income arising in the respective wards of Cumberland, Eskdale and Leath, as aforesaid, were acting in the execution of their said office, in hearing and determining certain appeals of divers persons, relating to the duties upon income, brought before them at a certain meeting duly holden by them the said commissioners for that purpose, on the said, &c. at, &c. aforesaid, for the said M. J. being a wicked and ill disposed person, and a disturber of the peace of our lord the king, and wickedly intending to bring into disgrace and contempt the said J. R. and W. H. as such commissioners as aforesaid, and the proceedings of the said commissioners in hearing and determining appeals, came, and then and there, to wit, at, &c. aforesaid, scandalized, insulted and vilified the said commissioners, so being in the execution of their said office, by saying to the said commissioners, in the presence and hearing of the said commissioners, these false, malicious, scurrilious and contemptuous words following, that is to say, &c. [set out the words, and conclude as before, and as ante 6.] CHAPTER XV. OF OFFENCES AGAINST PERSONAL PROPERTY. LARCENY. (a) The of ence. PRELIMINARY NOTES. The offence in general. Larceny is the wrongful taking and [*917] carrying away of the personal goods of any one from his possession, with a felonious intent to convert them to the use of the offender, without the consent of the owner, 2 East, P. C. 553. 2 Leach, 838. To constitute this offence, therefore, in any form, there must be a taking from the possession, a carrying away against the will of the owner, and a felonious intent to convert it to the offender's use. We will first consider these requisites and then examine the degrees of larceny, and investigate the aggravations by which it may be attended. I. There must be a taking from the possession. And, therefore, if a party lawfully acquire possession of goods and afterwards misapply them, this is no felony, 2 Leach, 835. For all felony includes the idea of trespass, and, therefore, if the party be guilty of no trespass in taking the goods, he can commit no felony in carrying them away, Hawk. b. 1. c. 33. s. 1. Thus if a man find goods, and convert them to his own use, this will be no larceny; and the same rule applies [*918] where the party is entrusted with the goods* for a specific purpose, so that he is invested with a temporary property in them, Hawk. b. 1. c. 33. s. 2. But if he severs part of them (a) As to this subject, in general, see Hawk. b. 1. c. 33. 4 Bla. Com. 229 to 250. Com. Dig. Justices O. 4, 5, 6, 7, 8. 2 East, P. C. 524 to 791. Burn J. Larceny. Williams J. Felony. Dick. J. Larceny. for the purpose of taking, he destroys the privity of the bailment, and commits a new trespass, which makes his offence complete, id. s. 4. In order to determine whether a particular appropriation is larceny, it will be often necessary to enquire whether the owner parted with the property in his effects, or only with the actual possession, retaining still the dominion over them. Thus a shepherd who has the charge of a flock, a butler who takes care of plate, a servant who keeps the key of a chamber, and a guest who has valuable property to use at an inn, have manifestly no interest in the things they are to use or preserve, and may be said with propriety to take them, Hawk. b. 1. c. 33. s. 6. So if a master delivers property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or deposit with a banker, the latter will be guilty of felony in applying it to his own use, for it still remains in the constructive possession of its owner, 2 Leach, 870. And if a surrogate gives his clerk a sum of money for the express purpose of buying bank licences, and he embezzles it, he will be criminal, 2 East, P. C. 563. If a banker's clerk is sent to the money-room to bring cash for a particular purpose, and he takes the opportunity of secreting some for his own use, 1 Leach, 344.-if a tradesman entrusts goods to his servant, to deliver to his customer, and he appropriates them to himself, 1 Leach, 251.-if a person wilfully retains goods delivered to him to repair, to cleanse, to pawn, or to preserve, Hawk. b. 1. c. 33. s. 10. the parties are respectively guilty of felony. And if several persons play together at cards and deposit money for that purpose, and one sweep it all away and take it himself, he will be guilty of theft if the jury find that he acted with a felonious design, 1 Leach, 270. But as the property must, at the time of the offence, be either in the actual or constructive possession of the owner, it was held that where a banker's clerk had received a note for th use of his master, and applied it to his own, he was guilty only of a breach of trust, 2 Leach, 835. In consequence of this determination the 39 Geo. III. c. 85, was passed, with enacts," that if any servant or clerk, or any person employed for the purpose or in the capacity of a servant or clerk to any person or persons whomsoever, or to any body corporate or politic, shall, by virtue of such employment, receive or take into his possession any money, goods, bond, bill, note, banker's draft, or other valuable security or effects, for, or in the name, or on account of his master or masters, or employer or employers, and shall fraudulently embezzle, secrete, or make away with the same, or* any part thereof; every such offender shall be deemed [*919] to have feloniously stolen the same from his master or masCrim. Law. VOL. III, X X ters, employer or employers, for whose use, or in whose name or names, or on whose account, the same was or were delivered to, or taken into the possession of such servant, clerk or other person so employed, although such money, &c. was or were no otherwise received into the possession of such master or masters, employer or employers, than by the actual possession of his or their servant, clerk or other person so employed, and every such offender, his adviser, procurer, aider or abettor, shall be liable to be transported for fourteen years, in the discretion of the court in which he is convicted." (b) But though there must be a taking from the actual or constructive possession of the owner, there is no occasion that it should be by the hand of the party accused. For if he procured an innocent agent, as a child or a lunatic to take the property, or if he obtained it from the sheriff by a replevin, without colour of title, and with a felonious design, he will himself be a principal offender, Hawk. b. 1. c. 33. s. 12. II. There must be a carrying away.-And therefore, if a thief cuts a belt on which a purse is hung, and it drops to the ground where he leaves it, or if he compels a man to lay down goods which he is carrying, and is apprehended before he raises them from the ground, the crime is incomplete, 1 Leach, 322. n. b. 1 Hale, 533. And if goods are tied to a string, which is fastened at one end to a counter, and a person intending to steal them take hold of the other, and removes them towards the door as far as the string will permit him, this will be no felony. So where the prosecutor had his keys tied to the strings of his purse in his pocket, which the prisoner endeavoured to take from him and was detected with the purse in his hand, but the strings still hung to the pocket by the keys, this was holden to be no asportation, and therefore no larceny was committed, 1 Leach, 321. n. a. 1 Hale 508. But a very slight asportation will suffice. Thus to snatch a diamond from a lady's ear, which is instantly dropped among the curls of her hair, 1 Leach, 320; to remove sheets from a bed and carry them into an adjoining room, 1 Leach, 222, in notes-to take plate from a trunk, and lay it on the floor with intent to carry it away, ibid.—and to remove a package from one part of a wagon to another, with a view to steal, 1 Leach, 236. have respectively been holden to be felonies. But if the defendant merely change the position of a package from lying endways to lengthways, for the greater convenience of taking out its contents, and cuts the [*920] outside of it for* that purpose, but is detected before he has (b) See post 935. by whom larceny may be committed, and the precedents. |