Haywood v. State

41 Ark. 479 | Ark. | 1883

OPINION.

Larceny, at common law, is defined to be “the felonious-taking and carrying away of the personal goods of another.” —Blackstone.

By the common law there can be no larceny of animalsferae naturae, or wild animals, unreclaimed. When reclaimed they become the subject of this offense, provided they are fit for food, not otherwise.

MocMng Sector. But the English courts made exceptions to the rule, that. reclaimed animals, to be the subject of larceny, must be fit for food. Thus the tamed hawk was held to be the subject-of larceny, though unfit for food, because it served to-amuse the English gentlemen in their fowling sports. So-reclaimed honey bees were made an exception, because», though not fit for food themselves, their honey is.

Under decisions of English and American courts, made upon the common law definition of larceny, Mr. Bishop classes the following animals, when reclaimed, as the subjects of the offense: Pigeons, doves, hares, conies, deer» swans, wild boars, cranes, pheasants, partridges and fish suitable for food, including oysters.

To which might be safely added wild turkeys, geese» ducks, etc., when reclaimed.

Of those animals of which there can be no larceny, though reclaimed, he puts down the following: Dogs, cats, bears, foxes, apes, monkeys, polecats, ferrets, squirrels, parrots, singing birds, martins and coons.

In the South, squirrels are in common use as food animals, and the hunters of all climates regard bears as good food.

Iowa is credited with the decision (Warren v. State, 1 Green 106) that coons are unfit for food, and therefore by the common law, not the subject of larceny, when reclaimed.

Among the colored people of the South the coon when fat in the fall and winter, is regarded as a luxury, and the Iowa decision would not be regarded by them as sound law or good taste.

On the whole subject, see 2 Bishop on Criminal Law,. (6th Ed.) secs. 757, 781 and notes.

Every species of personal property was not the subject of larceny at common law. For example, dogs were treated as personal property, and on the death of their owner, if not disposed of by will, went to his executor or administrator as such. So the owner of a dog could bring a civil action against one who injured or took the animal.

So choses in action, as bonds, bills, notes, etc., were classed as personal property, and subjects of the action of detenue, etc., but larceny could not be committed of them*

Under the technical rules of the ancient common law, says Me. Bishop, prevailing still, except as expanded by statutes, larceny was restricted, as to the property of which it could be committed, as well as in some other respects,, within limits too narrow to meet the requirements of a more refined and commercial age. Consequently statutes in England and in the United States have greatly enlarged the common law doctrine. — Ib. sec. 761.

The provisions of the larceny statute of this State are very broad and comprehensive. The first section defines-the crime thus : “Larceny is the felonious stealing, taking and carrying, riding or driving away the personal property ■of another. ” This perhaps is not more comprehensive than the common law definition.

The second section declares that ‘ ‘ larceny shall embrace -every theft which unlawfully deprives another of his money ■or other personal property, or those means and muniments by which the right and title to property, real or personal may be ascertained.”

The third section makes any bank note, bond, bill, note, receipt, or any instrument of writing whatever, of value to the owner, the subject of larceny.

The fourth section declares that “the taking and removing awajr any goods or personal chattels of any kiud whatever, with intent to steal the same, whether the articles ■stolen be in the immediate possession of the owner or not, unless it shall appear that the owner has abandoned his ■claim thereto, shall be deemed larceny. ” — Gantt’s Digest, secs. 1352-7.

Under similar statutes of New York and Tennessee, it has been decided that dogs are the subject of larceny. — Mullalley v. People, 86 New YorJc ( Court of Appeals'), 365; State v. Brown, 9 Baxter (Tennl), 53. Though in the ■States where the common law has not been enlarged by ■statute, the rulings have been otherwise.

In Mullally v. People, it was well said by Justice Eaele, who delivered the opinion of the court, that ‘ ‘in nearly every household in the land can be found chattels kept for the mere whim and pleasure of its owner ; a source of solace after serious labor, exercising a refining and elevating influence ; and yet they are as much under the protection of the law as chattels purely useful and absolutely essential. ”

TrespasmTokiífg The reclaimed mocking bird in question was no doubt personal property. The owner could have brought trespass against the thief, who invaded her portico at night, and deprived her of the possession of her songster, which she prized above price; and she could have maintained replevin against the person to whom he sold it, had he refused to surrender it to her.

The market value of the bird was, perhaps, more than ten times greater than that of the cage, which was the subject of petit larceny. To hold that larceny might be committed of the cage, but not of the bird, would be neither good law nor common sense.

Affirmed.