owner consents thereto, even though his consent be obtained by fraud, it is no taking. But such consent must be to the severance of the property from his possession, as distinguished from a consent to the transfer of its temporary custody. For one, who by fraud or by persuasion, procures the owner to deliver to him an article, the owner not intending thereby to transfer the possession thereof, is guilty of a taking, if, after receiving it into his custody, he detains it against the owner's will. Read 4 Bl. Comm., pp. 229-231. Broom Comm., pp. 945, 949-953. 1 H. P. C., pp. 504-508. 3 Chitty C. L., pp. 917–920, 935–938. 2 Russ. Cr. Pr., pp. 2, 5-7, 19-62, 153–165. 2 Arch. Cr. Pr., pp. 375, 385–388, 404-428, 431 459. 2 Whart. C. L., §§ 1802-1817, 1840-1868. 2 Bish. C. L., §§ 758, 794-839, 853-883. 3 Greenleaf Ev., §§ 150, 154-156, 161, 162. § 431. Of Larceny. The Property. Real The property taken must be personal property. property, and things permanently annexed thereto, are not subjects of theft. If portions of the realty are severed from the mass thereof, and are thereby changed into personal property, such act of severance is not a theft, because, in their movable condition, these objects never were in the possession of their owner. But if this severance takes place at one time, and afterward such objects pass into the possession of their owner, a subsequent removal of them, with intent to steal, will be a theft. Thus if a person plucks apples from a tree, or tears a shutter from a house, and carries them immediately away, it is a trespass and no theft But if he lays the shutter or the apples on the ground of the owner, for a single instant after such severance, they pass into the possession of the owner in their movable condition, and the subsequent taking of them, with felonious intent, will be a theft. The property must not only be personal property, it must also be personal property in possession, as distinguished from such property in action. A chose in action is incapable of being stolen. Its very name implies that it is not in, and therefore cannot be taken out of, the possession of the owner. Bills, notes, bonds, and other instruments, which evidence the existence of such choses, are, however, frequently called choses in action, even by law-writers. Such instruments are not, at common law, subjects of theft, though generally made so by statute. The property taken must also be of some intrinsic value. Read 4 Bl. Comm., pp. 232-236. Broom Comm., pp. 946, 947. 1 H. P. C., pp. 510-512. 2 Russ. Cr., pp. 62-86. § 432. Of Larceny. The Ownership of the Property. Ownership, in larceny as in other crimes, consists in the legal right of possession, and must reside in some one other than the taker. Things which can have no owner, as the corpse of a human being, animals of a base nature, or animals feræ naturæ and unreclaimed, cannot be stolen. Ownership is not devested either by the accidental loss of the property, or by the tortious and unlawful act of another. One person may have a general, and another a special, ownership in the same chattel. In such cases, the taking of the property by the general owner, with intent to steal, will be a theft from the special owner, and the taking of it, with that intent, by a third person will be a theft from both owners. Joint-tenants and tenants in common have no ownership as against each other, nor has a husband any ownership as against his wife. The ownership of property attached, or held under an execution before sale, is still in the general owner, and property in the possession of an agent belongs, as against all third parties, to the principal. Clothing, worn by children, is owned both by them and by their parents. Read 4 Bl. Comm., pp. 235, 236. 2 Arch. Cr. Pr., pp. 357-368, 394-396, 431-460. 2 Whart. C. L., §§ 1818-1836. 2 Bish. C. L., §§ 788-793. § 433. Of Larceny The Felonious Intent. The intent to steal is that which distinguishes theft from a mere trespass. This intent is called the animus furandi, and has been said to characterize the taking as a taking lucri causa, or for the sake of gain. The intent to steal embraces two intents: (1) The intent to permanently deprive the owner of his possession of the property; and (2) The intent to derive some benefit, actual or imaginary, to the taker. A taking with intent to return after using is not the intent to steal. Thus, where a servant took his master's goods and pawned them for his own benefit, but with the intention to redeem and restore them, it was held to be no theft. So where a thief, without permission, takes a horse merely to aid him in his flight with other property which he has stolen, and with the intent to abandon the horse and suffer him to return to the owner, it is not a stealing of the horse. The taker must also intend some advantage to himself, but such advantage need not be of a pecuniary character, nor need it be a real advantage as distinguished from an imaginary one. Thus where a woman took and destroyed the letter of another, which she feared might injure her character; where a servant took his master's beans to save himself the trouble of preparing other food for the master's horses; where a man killed the horse of another to prevent it from being used as an evidence against him; where one stole a towel to make a present of it to another; in all these cases, and in many others similar thereto, it has been held that the taking was for the sake of gain, and that a complete intent to steal existed. This doctrine of lucri causa has, however, been the subject of much discussion by law-writers; and the courts, in which it has been considered, are not harmonious in their decisions. The intent to steal must exist at the time of the taking. If the taking be without intent to steal, that is, if the intent to steal is first formed in the mind of the taker after the severance of the object from the possession of the owner, there is no theft. And, on the other hand, if the taking be with the intent to steal, the theft is complete even though afterwards the thief repent and return the property. The intent to steal is a specific intent, and must be alleged and proved like any other part of the criminal act. Read 4 Bl. Comm., p. 232. Broom Comm., pp. 953-960. 2 Arch. Cr. Pr., pp. 389-394. 2 Whart. C. L., §§ 1769-1801. 2 Bish. C. L., §§ 840-852. 2 B. & H. L. C. C., pp. 409-432. § 434. Of Robbery. The Element of Larceny. Robbery is the theft of property from the person, or in the presence, of the owner, accomplished by violence, or by putting him in fear. Three things are here to be regarded: (1) The theft; (2) The person or presence of the owner; and (3) The violence, or putting him in fear. The theft, in robbery, consists of the same elements, and is governed by the same rules, as when perpetrated out of the presence of the owner, and without violence or putting him in fear. There must be a taking and carrying away, from the possession of the owner and against his will, of personal property, with the intent to steal. Read 4 Bl. Comm., p. 242. 1 H. P. C., pp. 532, 533. 3 Chitty C. L., p. 802. 2 Whart. C. L., §§ 1695, 1697. § 435. Of Robbery. The Person or Presence of the Owner. In robbery, however, the property must be taken from the person, or in the presence of, the owner. How far the limits of this presence extend is not easily determined. It includes all property which is in the sight of the owner, and under his immediate and personal care and protection. It is also held that property, however near to him, if not actually in his sight or under his control, is not in his presence. Thus where a master's goods were stolen by violence from his servant in the master's presence; where a traveller was assaulted by a thief, who then took away his horse standing by him; and where a person under fear threw his purse |