§ 533. Definition.-Larceny is the taking and removing of personal property of another by trespass with knowledge that neither the general nor special ownership of the property is in the taker, and with felonious intent to deprive the owner of his ownership therein.1

1 Baron Parke, in speaking of the early definitions of larceny, says that none of them are complete. He also says that the most nearly complete one among them is East's, which defines the offense as the

wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to

his (the taker's) Own use, and

§ 354. Essentials.-The essential elements of larceny are as follows: (1) The thing taken must be personal property. (2) The taking must be by trespass. (3) The general or special ownership of the property must be in another. (4) The property must be removed. (5) The taking and removing must be done with felonious intent to deprive the owner of his property. (6) The property must have some value.

§ 535. Nature of the subject-matter.-The thing taken must be of such a nature that the law regards it as property, and thus capable of being owned. Hence animals ferae naturae which have not been reclaimed, or which, though reclaimed, are unfit for food or valuable for their fur, can not, at common law, be the subject of larceny. It has been heid, therefore, that dogs, cats, bears, foxes, apes, monkeys, polecats, ferrets, squirrels, parrots, singing birds, martins and coons are incapable of being the subject of larceny. While on the other hand it has been held that deer, hares, conies, pigeons, doves, pheasants, partridges, cranes, swans, wild boars, wild turkeys, wild geese, wild ducks, oysters, and certain kinds of fish, when reclaimed, are capable of being the subject of larceny.2 Yet in many places squirrels, coons and bears are used as food, and a better distinction might be, not whether the animals were capable of use for food, but whether they were kept for food purposes.3

make them his own property without the consent of the owner. Reg. v. Holloway, 2 Car. & K. 942. See also, Holly v. State, 54 Ala. 238; Brown v. United States, 35 App. D. C. 548, Ann. Cas. 1912 A, 388; and extended note on larceny in 88

Am. St. 559; State v. White, 29 Del. 86, 97 Atl. 231.

2 Haywood v. State, 41 Ark. 479. 3 Haywood v. State, 41 Ark. 479; Miller v. United States, 242 Fed. 907, L. R. A. 1918 A, 545 (live fish).

§ 536. Dogs.-Some courts hold that dogs can be the subject of larceny. Other courts, however, hold the contrary.5 The two reasons assigned for the latter view are (1) the baseness of their nature, and (2) the fact that they are kept for the mere whim and pleasure of their owners. This reasoning is scarcely sound. There are many chattels protected which are used only for pleasure. Dogs have a commercial value, large in some instances and in many ways render useful services. It is also held that dogs are subject of larceny for the reason that they are made taxable by statute and therefore are deemed property.7

8

§ 537. Killing animals.-When a hunter kills a wild animal on another's premises and removes it under circumstances which render the killing and the asportation parts of the same transaction, so that in the eye of the law there is continuity of possession in the trespasser, he is not guilty of larceny. If he abandons it after killing it and subsequently returns and removes it animo furandi he is guilty of larceny. In the latter case possession is transferred from the owner of the premises to the trespasser; while in the former case possession is continuous in the trespasser. The question of abandonment in this class of cases involves the question of intention. If the trespasser, at the time he goes away, intends to return for the animal within a reasonable time he does not abandon it. Thus, where hunters killed and concealed one hundred twenty-six rabbits on another's prem

4 Mullaly v. People, 86 N. Y. 365; Commonwealth v. Hazelwood, 84 Ky. 681, 2 S. W. 489.

5 State v. Holder, 81 N. Car. 527, 31 Am. Rep. 517; Ward v. State, 48 Ala. 161, 17 Am. Rep. 31; State v. Lymus, 26 Ohio St. 400, 20 Am. Rep. 772; Findlay v. Bear, 8 Serg. & R. (Pa.) 571.

6 Mullaly v. People, 86 N. Y. 365. 7 Commonwealth v. Hazelwood,

ises, and returned after several hours and carried them away, the court held that there was a continuity of possession in the trespassers and that for this reason they were not guilty of larceny.10 It has been held that where domestic animals were killed and their flesh or hides taken away and sold, it was larceny.11

§ 538. Fruit trees, fixtures, etc.-The principles involved where a hunter kills a wild animal on another's premises and removes it are also applicable where fruit is severed from a tree and carried away, where natural grass or standing trees are cut and removed and where fixtures are severed from the realty and taken away. "If a man enters my orchard and fills a wheelbarrow with apples, which he has gathered from my trees, he is not guilty of larceny, though he has certainly possessed himself of my property; and the same principle is applicable to wild animals."12

The common law distinguished between things that are connected with or savor of the real estate, and those that are personal goods. An apple growing upon a tree was connected with the land by means of the tree that bore it, and so held to partake of the nature of the land and to be real estate. One who plucked it from the tree and at once ate or carried it away was therefore a trespasser; but if he laid it down, and afterward carried it away, so that the taking and the asportation were not one and the same act, then, if the carrying away was done animo furandi, the elements of larceny were present. 13

At common law the gas and water pipes of a house, its doors, window shutters, mantels, etc., can not be stolen, unless they are severed from the house under circumstances

10 Reg. v. Foley, 26 L. R. (Ireland) 299.

11 Flowers v. State, 69 Fla. 620, 68 So. 754, L. R. A. 1915 E, 848n.

12 Reg. v. Townley, 12 Cox Cr.

C. 59. See also note, 49 L. R. A. (N. S.) 966.

13 Commonwealth v. Steimling, 156 Pa. St. 400, 27 Atl. 297.

which render them personal property.14 Similarly, ore which has not been mined and natural ice which has not been cut are incapable of being stolen. Ore which has been mined, and ice which has been cut and stored, or cut and merely placed ready for hauling away, are personal property and therefore capable of being stolen.15 It has been held, however, that where a person takes coal which has been deposited by a stream on another's land, sifts it, loads it on a flatboat and carries it away animo furandi, he is guilty of larceny.10 There have been attempts to connect one who defrauded the owner of land and obtained title to it, of larceny, but this can not be done.17

539. Chandeliers, keys, etc.-Chandeliers, though attached to a house, are deemed furniture, and therefore capable of being stolen.18 And the keys of a house, though they would pass with the inheritance, have been held the subject of larceny. Thus, a refusal by the trial court to instruct the jury "that the key in the lock of a door of a house, and belonging thereto, is part of the realty, and not the subject of larceny, unless the same is first severed from the realty by one act, and then stolen by another and distinct act," was held not erroneous for the reason that the keys of a house, though they follow the inheritance, are nevertheless personal property.19 It has also been held that the valves attached to a pump and boiler which were used for irrigating purposes, and which constituted permanent improvements to the real estate, were capable of being stolen, since they were easily removable. The court held, however, that where they were

14 Rex v. Westbeer, 1 Leach 14, 2 East P. C. 596.

15 State v. Burt, 64 N. Car. 619; People v. Williams, 35 Cal. 671; State v. Berryman, 8 Nev. 262, Derby's Cases 374.

16 Commonwealth v. Steimling, 156 Pa. St. 400, 27 Atl. 297.

17 State V. Klinkenberg, 76 Wash. 466, 136 Pac. 692, 49 L. R. A. (N. S.) 965.

18 Smith v. Commonwealth, 14 Bush (Ky.) 31, 29 Am. Rep. 402.

19 Hoskins v. Tarrence, 5 Blackf. (Ind.) 417, 35 Am. Dec. 129.