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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. 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 2 Crim. Law, II, S 863; Com. v. Will- V. S., 50 Ga. 313; Alderman v. S., 57 iams, 3 Gray, 461; Com. v. Maher, 11 Ga. 367; Carter v. S., 53 Ga. 326; Phila. 425; S. v. Small, 26 Kan. 209; Keeller v. S., 4 Tex. Ap. 527; [P. v. S. v. Broderick, 7 Mo. Ap. 19; S. v. Sherman, 133 N. Y. 349, 31 N. E. R. Stone, 68 Mo. 101.

107; 8. v. Chew Muck You, 20 Oreg. 3 Ante, $ 420.

215, 25 Pac. R. 355; S. v. Barry (Minn.), * Reg. v. Bunkall, Leigh & C. 371; 79 N. W. R. 656; S. v. Lindley (S. D.), Reg. v. Henderson, 11 Cox, C. C. 593. 83 N. W. R. 257.)

5 Reg. v. Haigh, 7 Cox, C. C. 403. 8 Crim. Pro., I, SS 611, 612; 8. v.

6 Reg. v. Hassall, Leigh & C. 58, 8 Smith, 20 N. H. 399. Cox, C. C. 491; Reg. v. Robson, Leigh 9 Crim. Pro., II, 8 555; post, $ 602. & C. 93, 9 Cox, C. C. 29; Reg. v. Loose, 10 P. v. Poggi, 19 Cal. 600. In this Bell, C. C. 259, 8 Cox, C. C. 302. case, Norton, J., speaking for the 7 P. v. Jersey, 18 Cal. 337; S. v. Stone, court, said: “The indictment states of the offense is the conversion; it therefore must be distinctly charged. But the analogies of the indictment for embezzlement? explain that even this allegation need not be expanded beyond the statutory terms; as, for example, it is sufficient to say that the defendant did “convert the same to his own use." ? that the defendant'was the bailee certainty. Proof of the circumstances of one hundred and thirty ounces of constituting the bailment must be gold dust, which he converted to his made at the trial, and the essential own use, with intent to steal the facts to be proved should be stated same; the said gold dust being then in the indictment. So are the preceand there the property, goods and dents of indictments under statutes chattels of one Francisco Gallardo.' substantially the same. 3 Chit. Crim. There are no other averments show. Law, 967; Com. v. Merrifield, 4 Met. ing the character or circumstances 468. By the same precedents it of the builment, or that the defend- appears that it is sufficient to state ant was in fact a bailee of gold dust. the fact of the conversion with in. It was decided in the case of P. v. tent to steal in the language of the Cohen, 8 Cal. 42, that an indictment statute, without specifying any par. like this was insufficient, and the ticulars of the mode of conversion." case of P. v. Peterson, 9 Cal. 313, was Pages 600, 601. As to the authorities decided in the same way upon the referred to by the learned judge near authority of the former case. The the close of this quotation, I cannot remarks of the judge upon this point see that they are pertinent to the in the case of P. v. Cohen are rather point, but perhaps I am mistaken. applicable to another statute regard- If, as precedents, they covered the ing certain officers who are charged precise point, I should adapt to the with the custody of public moneys occasion the words of Seawell, J., sit(Wood, Dig., art. 1927) than to the ting in the North Carolina court: statute under which the indictment “Although it is true that precedents in that case was found (Wood, Dig., are high authority as to what the art. 1931); and there does not appear law is, yet, in this case, they only to be any authority for the conclu- prove that they contain these words; sion that the legislature intended to for it is certain that most of them use the word bailee, in the statute contain many things which never last referred to, in a limited sense, as were essential, and some they retain designating bailees 'to keep, to trans- which long since have become use. fer or to deliver.' Any bailee who less." S. v. Sparrow, N. C. Term R. converts the property of which he is 93, 94. the bailee to his own use, with intent 1 Crim. Pro., II, SS 322, 323. to steal the same, may undoubtedly 2 P. v. Poggi, supra. But see Snell be indicted for larceny under that v. S., supra; Hoyt v. S., supra; (Reg. statute. The decision that the in- v. Ashwell, 16 Cox, C. C. 1; Reg. v. dictment was insufficient was, how. Holloway, 18 Cox, C. C. 631; Reg. v. ever, correct, for the reason that it Wynn, 16 Cox, 231; P. v. Campbell did not set forth the necessary facts (Cal.), 59 Pac. R. 593; Mangum v. S., to show that the defendant was a 38 Tex. Cr. R. 231, 42 S. W. R. 291; S. bailee of the property. The facts v. Kasper, 5 Wash. St. 174, 31 Pac. R. and circumstances which are neces- 636; S. v. Hopkins, 56 Vt. 250; P. v. sary to constitute a complete offense Hazard, 158 N. Y. 727, 53 N. E. R. must be stated with directness and 1129.]

§ 423. What the bailment.--- The bailment, in these cases, is the same as in others in the law. We saw, in another connection, that it takes place where, and only where, the specific thing delivered is to be returned - this is the test ? - either in

a form to which it is to be changed, or in the form received, when the object of the trust is accomplished. The contract of bailment may be express or implied. If, by it, the title passes with the thing, there is no bailment. The conditional purchase and sale of an article on instalments, the ownership to remain in the vendor and possession to be in the vendee until all the payments are made, and in case of default the thing to be restored to its original possessor, constitute a bailment. And the forms of bailment are numberless. Whether or not a married woman can be a bailee, within these criminal statutes, is perhaps an open question, but probably she can be. Even at the common law she could always receive property, though in some circumstances only to transmit the ownership to her husband. She could be an agent.' And she could commit the offense of common-law larceny.10 It is difficult, therefore, to perceive any just ground to preclude her from being a bailee for the statutory larceny, and committing it of the goods in her possession. The recorder of London in one case intimated, and perhaps ruled, that there cannot be a bailment which is procured by the bailee's fraud." And this accords with other rulings where the facts are open to inquiry." But in just prin

1 See the long note to the last sec- 4 Phelps v. P., 72 N. Y. 334, 357; Botion; Reg. v. Hassall, Leigh & C. 58, hannon v. Springfield, 9 Ala. 789; 8 Cox, C. C. 491; Krause v. Com., 93 Newhall v. Paige, 10 Gray, 366. Pa. St. 418, [39 Am. R. 762;] Reg. v.

6 Krause v. Com., supra. Tonkinson, 14 Cox, C. C. 603; Reg. v. 6 Whitney v. McConnell, 29 Mich. Flowers, 16 Cox, C. C. 33.]

12; Dunlap v. Gleason, 16 Mich. 158, 2 Powder Co. v. Burkhardt, 97 U.S. [93 Am. D. 231;] Henry v. Patterson, 110; Marsh v. Titus, 6 Thomp. & C. 57 Pa. St. 346. But see and compare 29, 3 Hun, 550; Mallory v. Willis, 4 Krause v. Com., supra. Comst. 76; [Reg. v. Helier, 18 Cox, Reg. v. Denmour, 8 Cox, C. C. 440; C. C. 267; Bergman v. P., 177 III. 244, Reg. v. Robson, Leigh & C. 93, 9 Cox, 52 N. E. R. 363; Caskey v. S. (Tex. Cr. C. C. 29. R.), 50 S. W. R. 703.]

81 Bishop, Mar. Women, SS 699, 700. 3 Crim. Law,II, 8 857; Grier v. Stout, 91 id. 701; 2 id. 400. 2 Bradw. 602; Foster v. Pettibone, 3 10 Crim. Law, I, SS 361-363; 1 Hale, Seld. 433, (57 Am. D. 530;] Reg. v. P. C. 514, 516. Hoare, 1 Fost. & F. 647; (Reg. v. Mo- Il Reg. v. Hunt, 8 Cox, C. C. 495. Donald, 15 Cox, C. C. 757.]

12 Ante, S 419.


ciple, apart from the adjudications, it would not be unreasonable to refuse to permit a man to set up one fraud as a ground of escape from the consequences of another.

$ 424, Bailee's act of larceny.- The elements of larceny at the common law are stated in another connection. Those of larceny by a bailee are in reason the same, except that in his case the statute dispenses with the trespass. It was once ruled by a single judge to be necessary to show some act of conversion inconsistent with the purpose of the bailment. This doctrine has been both affirmed and denied by other judges; but, where one gave money to another to buy, and bring in the latter's cart, coals for hire, and the person so intrusted bought them in his own name, and on his way with them abstracted some for his own use, it was held that, whichever view of the above point be taken, the conversion here, there being deemed to be a bailment of the coals, was adequate. And a carrier who undertakes to deliver, to persons named in a list, a boat's load of coals in his own cart, commits larceny as a bailee if he fraudulently sells some of them and appropriates the money to himself. In another case it was laid down that a carrier, receiving money to procure goods, becomes guilty of larceny of the money as bailee, if he fraudulently converts it to his own use, though he obtains and delivers the goods.?

1 And see Crim. Law, II, SS 264, jecting the bailee, who converted it 768. See further as to what is a bail. to his own use, to indictment under ment, Reg. v. Loose, Bell, C. C. 259; the statute. Reg. v. Reeves, 5 Jur. Reg. v. Bunkall, Leigh & C. 371, 9 (N. S.) 716. Cox, C. C. 419; Reg. v. Davies, 14 2 Crim. Law, I, S 757 et seq. W. R. 679, 14 Law Times (N. S.), 491; 3 And see S. v. Stone, 68 Mo. 101; Hunt v. Wyman, 100 Mass. 198; Krause v. Com., 93 Pa. St. 418, [39 Becker v. Smith, 59 Pa. St. 469; Reg. Am. R. 762; Reg. v. Banks, 15 Cox, v. Cosser, 13 Cox, C. C. 187; Zschocke C. C. 450; S. v. Fisher, 38 Minn. 378, 2. P., 62 Ill. 127; Reg. v. Oxenham, 13 37 N. W. R. 948.] Cox, C. C. 349; Hutchison v. Com., 4 Reg. v. Jackson, 9 Cox, C. C. 505. 82 Pa. St. 472; Coldwell v. S., 3 Bax. 5 Reg. v. Bunkall, Leigh & C. 371, 9 429. A man on the ground, partly Cox, C. C. 419; [Reg. v. Holloway, 66 intoxicated and partly asleep, saw L. J. Q. B. 830, 77 L. T. 247.] another, with whom he was 6 Reg. v. Davies, 14 W. R. 679, 14 quainted, take from his pocket his Law Times (N. S.), 491; (Washington watch, and made no effort to prevent v. S., 106 Ala. 58, 17 S. R. 546; Holeit, believing the object to be to pre- brook v. S., 107 Ala. 154, 18 S. R. 109.] serve the watch for him; this was Reg. v. Wells, 1 Fost. & F. 109. ruled to constitute a bailment, sub



III. LARCENIES OF ANIMALS. $ 425. At common law.— As seen in another connection, most, not absolutely all, animals of which there may be ownership at the common law are the subjects also of common-law iarceny. There is, therefore, no such urgent occasion for the statutes within this sub-title as for those within the last, and they have not wrought consequences so wide.

The statutes. The present English enactment on this subject, condensing the prior ones, is 24 and 25 Vict., ch. 96, § 10,“Whosoever shall steal any horse, mare, gelding, colt, or filly; or any bull, cow, ox, heifer, or calf; or any ram, ewe, sheep, or lamb,— shall,” etc.? The South Carolina statute makes punishable "any person found guilty of the larceny of any horse, mule, cow, hog, or any other live-stock.”3 And similar to these two, yet differing more or less from them and from one another, are the enactments in our other states.*

$426, Word to designate in indictment the animal. - In determining by what statutory word to designate the animal in the indictment, some discussions in an earlier chapter will be helpful. For example, the term “horse," primarily denoting the male, includes also, if it stands alone, mares and geldings.? So, therefore, by the better opinion, it does in the statutory expression “horse, mare or gelding." But some would here restrict it, holding, under this expression, an indictment which employs the word “horse” not sustained by proof of a "mare" or a “gelding.". While this rule prevailed in Eng1 Crim. Law, II, SS 771-779.

6 Ante, SS 246c-2-18. 2 The prior statute of 7 and 8 Geo. 7 Baldwin v. P., 1 Scam. 304; Reg. 4, ch. 29, § 25, was in nearly the same V. Aldridge, 4 Cox, C. C. 143; (S. v. words. But there were earlier en- Gooch, 60 Ark. 218, 29 S. W. R. 640; actments in forms perhaps less com. P. v. Monteith, 73 Cal. 7, 14 Pac. R. pact. See 2 East, P. C. 614–617. 373; P. v. Pico, 62 Cal. 50; Smythe v. 38. v. Corley, 13 S. C. 1, 4.

S., 17 Tex. Ap. 244.] 4 S. v. Buckles, 26 Kan. 237; Hunt 8 Ante, SS 246c-248; P. v. Butler, 2 v. S., 55 Ala. 138; Lavenner v. S., 60 Utah, 504; P. v. Sensabaugh, 2 Utah, Ala. 60; Watson v. S., 55 Ala. 150. In 473. Texas, the words, differing from the Mule.- That this word will inearlier form (ante, & 248), are: “If clude a “mule,” see Allison r. Brookany person shall steal any cattle he shire, 38 Tex. 199; that it will not, shall be punished,” etc. Duval v. S., see Com. v. Edwards, 10 Phila. 215. 8 Tex. Ap. 370, 371; (S. v. Gilbert, 68 9S. v. Buckles, 26 Kan. 237; (S. v. Vt. 188, 34 Atl. R. 697.]

McDonald, 10 Mont. 21, 24 Pac. R. 5 And compare with post, SS 440- 628, 24 Am. St. R. 25.) In Georgia 442

the code requires the sex to be des




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