BOOK V. STATUTORY EXTENSIONS OF THE COMMON-LAW OFFENSES. CHAPTER XXX. STATUTORY ENLARGEMENTS OF THE COMMON-LAW LARCENY. § 409-411. Introduction. 412-416. Purely and partly statutory. $409. Elsewhere.-In "Criminal Law" and "Criminal Procedure," under the titles "Larceny," and "Larceny, Compound," the extensions of the offense by statutes are largely explained. There also is discussed the statutory larceny called "Embezzlement." § 410. Here we shall follow out the departures of the statutes from the common law, into details which it seemed best there to postpone. 411. How chapter divided.- We shall consider, I. In general of larcenies purely and partly statutory; II. Larcenies under bailments; III. Larcenies of animals. I. IN GENERAL OF LARCENIES PURELY AND PARTLY STATUTORY. § 412. Degrees of departure from common law.— The statutes of our states differ considerably in this, that, by some of them, a statutory larceny is scarcely distinguishable from one at common law, by others the difference is very broad, and between these extremes there is every variety. Perhaps the widest departure from the common law is in § 413. Texas. In this state the word "theft" takes the place of the common-law term larceny; and it "includes," to quote from the code, "swindling, embezzlement, and all unlaw ful acquisitions of personal property punishable by the penal code." The consequence of which and other provisions is, that theft has there become a crime of degrees; that, for example, swindling is an inferior degree of it; and that, on an indictment for theft, the conviction may be for swindling.1 So it may be for receiving, or for removing without consent another's live-stock from its accustomed range. There are various statutory provisions, but the one indicating its ordinary form declares it to be "the fraudulent taking of corporeal personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking." § 414. How the indictment-(Expositions of definition). Under a statute like this Texas one, an indictment in the common-law form for larceny is wholly inadequate. It must allege, for example, that the goods were taken "from the possession" of one mentioned," "with intent to deprive the owner of the value of the same," and "without his consent,' and the proofs must negative the consent, no one of which particulars is essential at the common law. On the other hand, 8 -- as this statutory definition omits the "carried away" of the common-law definition, the asportation, which the commonlaw indictment alleges, may be omitted from that on the statute.10 But, though the statute has wrought these and some other departures from the common-law doctrines, still,— 1 Mathews v. S., 10 Tex. Ap. 279, 284; Martin v. S., 9 Tex. Ap. 293; [Doss v. S., 21 Tex. Ap. 505, 57 Am. R. 618; Atterbury v. S., 19 Tex. Ap. 401; Frank v. S., 30 Tex. Ap. 381, 17 S. W. R. 936.] 2 Vincent v. S., 10 Tex. Ap. 330. Marshall v. S., 4 Tex. Ap. 549; Powell v. S., 7 Tex. Ap. 467; Turner v. S., 7 Tex. Ap. 596; Counts v. S., 37 Tex. 593. 6 Ridgeway v. S., 41 Tex. 231; [Bullard v. S. (Tex. Cr. R.), 53 S. W. R. 637; Knutson v. S., 14 Tex. Ap. 570; Tallant v. S., 14 Tex. Ap. 234; Spain v. S., 19 Tex. Ap. 469.] 7 Johnson v. S., 39 Tex. 393. See Berg v. S., 2 Tex. Ap. 148; Jackson v. S., 7 Tex. Ap. 363; [Bowling v. S., 13 Tex. Ap. 338.] 8 Crim. Pro., II, § 752a; Stewart v. S., 9 Tex. Ap. 321; [Taylor v. S., 18 4 Quitzow v. S., 1 Tex. Ap. 65, 68; Tex. Ap. 489.] Berg v. S., 2 Tex. Ap. 148, 149. 5 Watts v. S., 6 Tex. Ap. 263; Castello v. S., 36 Tex. 324; [Bailey v. S., 20 Tex. Ap. 68: Lane v. S. (Tex. Cr. R.), 55 S. W. R. 831.] And see S. v. Jones, 7 Nev. 408; Burns v. S., 35 Tex. 724. 10 Musquez v. S., 41 Tex. 226; Hall v. S., 41 Tex. 287; Austin v. S., 42 Tex. 345; [Dukes v. S., 22 Tex. Ap. 415. Following common law. In particulars not provided for by the statute, the courts, in giving bounds to the statutory theft, follow, alike as to the law, the pleading, and the evidence, the rules of common-law larceny.1 § 416. Simply providing punishment.—If a statute merely declares, as many of our statutes do, that one "guilty of larceny" shall be punished in a way pointed out,' the offense created differs in no respect from larceny at the common law. The rule as to all offenses is so. For example,— Attached to freehold, etc.- Under such a statute it is not larceny to take and carry away, with a felonious mind, copper pipe which was attached to the freehold; because it would not be larceny at the common law. But there are statutes in terms to include things of this sort and other things partaking of the realty, as explained in other connections. In all these and other like cases, the indictment must charge, in the terms of the statute, besides following the common-law form, whatever else the statute has added to the common-law definition of the offense." II. LARCENIES UNDER BAILMENTS. § 417. The trespass in larceny.-Trespass is an element in every larceny at the common law. And the common-law form of the indictment-"did steal, take and carry away "8_ charges, among other things, a trespass. Now,— 998 § 418. Statute dispensing with trespass.- If a statute provides that, in circumstances which it points out, one's wrongful appropriation of another's goods shall be larceny though 192; Harris v. S., 29 Tex. Ap. 101; 2 La. Rev. Stats. of 1870, § 812. 4S. v. Davis. 22 La. An. 77; [Langston v. S., 96 Ala. 44, 11 S. R. 334.] 5 Crim. Law, II, §§ 783, 784; Crim. Pro., II, § 733. 6 Reg. v. Trevenner, 2 Moody & R. 476; Reg. v. Rice, Bell, C. C. 87; Reg. v. Jones, Dears. & B. 555; Reg. v. Gooch, 8 Car. & P. 293; U. S. v. Davis, 5 Mason, 356; S. v. Scott, 68 Ind. 267; [P. v. Opie, 123 Cal. 294, 55 Pac. R. 989.] 7 Crim. Law, II, §§ 758, 799-839. 8 Crim. Pro., II, § 697. there is no trespass, a rule of pleading brought to view in the last sub-title requires the circumstances to be set out, in an indictment for the statutory offense. The mere common-law form is inadequate. So it was held in Tennessee, not only on common-law principles, but the court added that, to accept the mere common-law form would violate the provision of the constitution of the state securing to an accused person the right "to demand the nature and cause of the accusation against him." On this principle proceeds the doctrine that, though a statute of embezzlement declares it to be larceny, it cannot be indicted as such, but the allegation must be special. Now, 1 § 419. Whether larceny by bailee.-A bailment of goods, honestly received by the bailee, transmits to him a special property in them, rendering a trespass, therefore a larceny, impossible except in circumstances which terminate the bailment, as explained in "Criminal Law." If he obtains a thing originally by fraud, even though not intending to steal it, as where he gets possession of a horse to drive to a particular place, and be absent a specified time, meaning to get to another place and be gone longer, the bailment does not attach, and, like a servant in custody, he commits.larceny of it by appropriating it to himself with felonious intent." § 420. Statutory larceny by bailee. To do away with the necessity of a trespass in cases of bailees in possession, and place them as to larceny on like ground with servants and others who have a mere custody of the thing, statutes have been enacted in England and pretty generally with us. Thus, in England, by 24 and 25 Vict., ch. 96, § 3, "Whosoever, being a bailee of any chattel, money, or valuable security, shall fraudulently take or convert the same to his own use or the use of any person other than the owner thereof, although he shall not 1 Hall v. S., 3 Coldw. 125. Perhaps, if the statute should declare the element of trespass never to be necessary, the case would be different, and the common-law form would suffice; the allegation of trespass being deemed surplusage. Prim v. S., 32 Tex. 157. 2 Crim. Pro., II, §§ 316, 317. 3 Crim. Law, II, §§ 809, 813, 833, 834, 836, 857-871; Abrams v. P., 6 Hun, 491, 492; [P. v. Cruger, 102 N. Y. 510, 7 N. E. R. 555, 55 Am. R. 830; Hill v. S., 57 Wis. 377, 15 N. W. R. 445.] 4 S. v. Coombs, 55 Me. 477, 480, [92 Am. D. 610. See also Johnson v. P., 113 Ill. 99; S. v. Taberner, 14 R. I. 270, 51 Am. R. 382; S. v. Woodruff, 47 Kan. 151, 27 Pac. R. 842, 27 Am. St. R. 285; Frazier v. S., 85 Ala. 17, 4 S. R. 691, 7 Am. St. R. 21; Shell v. S., 32 Tex. Cr. R. 512, 24 S. W. R. 646.] break bulk or otherwise determine bailment, shall be guilty of larceny, and may be convicted thereof upon an indictment for larceny;" the latter clause not having been in the earlier enactment of 20 and 21 Vict., ch. 54, § 4. The statutes of our states are similar to these, yet in terms not absolutely uniform. § 421. How the indictment (In England - On principle). We have just seen,' that, by the present English statute, the "indictment for larceny " is expressly made sufficient in these cases. But the foregoing discussions have disclosed that, in the absence of such a provision, and on the principles of sound pleading, it is not adequate. Under the earlier English enactment, a single jury case occurred, wherein, the indictment being in form as for a common-law larceny, and concluding against the statute, the presiding judge with some hesitation sentenced the prisoner thereon. Yet it seems not to have satisfied the profession; for, in the subsequent cases which the author has observed, the indictment was special, with a count added as for larceny at the common law. And § 422. With us.- Such decisions also as our own books afford require the allegation to be special, on the statute. Therefore, as in other indictments on statutes, the statutory terms must be so far pursued as to identify the statute and comprehend the offense in full. The bailment must be averred; but, on principle, the particulars of it need not be, because it is matter of inducement, and so the mere general allegation will suffice. Yet, contrary to this, the California court has required the facts out of which the bailment arises to be stated.10 The gravamen 1 Reg. v. Henderson, 11 Cox, C. C. 68 Mo. 101, 104; Gaddy v. S., 8 Tex. 593. Ap. 127; Snell v. S., 50 Ga. 219; Hoyt v. S., 50 Ga. 313; Alderman v. S., 57 Ga. 367; Carter v. S., 53 Ga. 326; Keeller v. S., 4 Tex. Ap. 527; [P. v. Sherman, 133 N. Y. 349, 31 N. E. R. 107; S. v. Chew Muck You, 20 Oreg. 215, 25 Pac. R. 355; S. v. Barry (Minn.), 79 N. W. R. 656; S. v. Lindley (S. D.), 83 N. W. R. 257.] 8 Crim. Pro., I, SS 611, 612; S. v. Smith, 20 N. H. 399. 9 Crim. Pro., II, § 555; post, § 602. 10 P. v. Poggi, 19 Cal. 600. In this case, Norton, J., speaking for the court, said: "The indictment states |