property he is not guilty of larceny, unless she has committed, or intends to commit, adultery with him.78 Where clothing or other chattels are stolen from the body of a dead person ownership may be laid in his executors.79 § 554. Asportation of the property.-One of the essentials of larceny is removal of the property. The slightest removal, however, is sufficient, provided the taker has absolute control of it even for only an instant.80 Where, in a case, the proof showed that the accused went behind the prosecutor's counter, opened the money drawer, took the money contained therein in his hand and disarranged the bills, but upon being discovered left the money in the drawer, the conviction was affirmed. In another case the proof showed that the accused opened a money drawer, lifted six dollars, but upon being discovered dropped it, and his conviction of the larceny of the entire contents of the drawer, fifty-one dollars, was affirmed.81 Where the thief snatches an earring from a lady's ear and drops it in her hair;82 or lifts money an appreciable distance in another's pocket;83 or takes clothes from a bedroom into a hall adjoining ;84 or lifts a sword partly out of its scabbard;85 or removes a chattel from one end of a wagon 78 Reg. v. Flatman, 14 Cox Cr. C. 396; People v. Swalm, 80 Cal. 46, 22 Pac. 67, 13 Am. St. 96. 79 Hayne's Case, 12 Coke 113. 80 State v. Jones, 65 N. Car. 395, Derby's Cases 386; Eckels v. State, 20 Ohio St. 508. See also, Harrison v. People, 50 N. Y. 518, 10 Am. Rep. 517, Derby's Cases 388; State v. Higgins, 88 Mo. 354, Derby's Cases 389; Thomas v. State (Ala. App.), 72 So. 686; Looney v. State, 80 Tex. Cr. 317, 189 S. W. 954; People v. Ostrosky, 95 Misc. 104, 160 N. Y. S. 493 (chickens); McKenzie v. State, 111 Miss. 780, 72 So. 198 (hog); Starnes v. State, 128 81 Harris v. State, 29 Tex. App. 843 Inst. 108, 1 Hale P. C. 507, 508. 852 Russ. on Crimes (9th Am. ed.) 153. to the other;86 or removes grain from the owner's garner in a mill to the thief's garner adjoining;87 or removes a money drawer from a safe to the floor;88 or rolls tubs of butter from one end of a car to another and changes the address tags, so that the carrier will transport them as his agent,89 the asportation is sufficient to render the offense larceny. On the other hand, merely setting a bale," or barrel, 91 upon end; or killing or trapping an animal;92 or shooting and wounding an animal; 93 or unfastening a dress on a display model in order to remove it,94 has been held insufficient. § 555. Asportation by enticement.-The asportation may be effected by means of enticement. Thus, an animal may be stolen by enticing it away by means of food. It is essential, however, that the thief acquire dominion over it. "If one entice a horse, hog, or other animal, by placing food in such a situation as to operate on the volition of the animal, and he assumes the dominion over it, and has it once under his control, the deed is complete; but if we suppose him detected before he has the animal under his control, yet after he has operated on its volition, the offense would not be consummated."95 It is to be observed, therefore, that "It would seem there can be no asportation, within the legal acceptation of the word, without a previously acquired dominion."96 86 Coslet's Case, 1 Leach 271. 87 State v. Craige, 89 N. Car. 475, 45 Am. Rep. 698. 88 State v. Green, 81 N. Car. 560. 89 State v. Rozeboom, 145 Iowa 620, 124 N. W. 783, 29 L. R. A. (N. S.) 37, Derby's Cases 395. 90 Cherry's Case, 2 East P. C. 556. 91 State v. Jones, 65 N. Car. 395, Derby's Cases 386. 92 Ward v. State, 48 Ala. 161, 17 Am. Rep. 31; Williams v. State, 63 Miss. 58; State v. Alexander, 74 N. 93 Minter v. State, 26 Tex. App. 217, 9 S. W. 561; Molton v. State, 105 Ala. 18, 16 So. 795, 53 Am. St. 97. 94 Clark v. State, 59 Tex. Cr. 246, 128 S. W. 131, 29 L. R. A. (N. S.) 323, Derby's Cases 392. 95 State V. Wisdom, 8 Port. (Ala.) 511. 96 Edmonds v. State, 70 Ala. 8, 45 Am. Rep. 67. But, as said in the same opinion, "Where a person takes an animal into an enclosure, with intent to steal it, and is apprehended before he can get it out, he is guilty of larceny." In this case the defendant was convicted of the larceny of a hog. The proof showed that his confederate got some corn and an ax; that the confederate, having given defendant the ax, tolled the hog some twenty yards by dropping some of the corn on the ground; that the defendant then struck the hog with the ax which caused the animal to squeal, whereupon both men ran away leaving the hog where it fell. The conviction was set aside on the ground that there was not a sufficient caption and asportation to constitute larceny. § 556. Asportation by innocent agent.-The asportation may also be effected by means of an innocent agent. "There is no occasion that the carrying away be by the hand of the party accused, for if he procured an innocent agent, as a child or a lunatic, to take the property, *he will himself be a principal offender."97 "An asportation may be effected by means of innocent human agency. as well as by mechanical agency; or by the offender's own hand."98 In the case from which the quotation is taken the proof showed that one Kerr, owner of a trunk, checked it at Worcester for Hartford; that one Briggs, defendant's confederate, checked his valise at Worcester for New York; that defendant surreptitiously interchanged the checks on the trunk and valise, in consequence of which the trunk went to New York, where Briggs took it from the station. The defendant was convicted of the larceny of the trunk and its contents, and appealed the case to the Supreme Court. In the opinion, Justice Lord observes: "The real question was, whether the defendant, at that time, feloniously and with intent to steal, set 97 3 Chit. Crim. L. 925. 98 Commonwealth v. Barry, 125 Mass. 390. See also, Aldrich v. People, 224 Ill. 622, 79 N. E. 964, 7 L. R. A. (N. S.) 1149, 115 Am. St. 166, 8 Ann. Cas. 284. in motion an innocent agency, by which the trunk and contents were to be removed from the possession of the true owner, and put into the defendant's possession, and whether such purpose was actually accomplished," and the conviction is affirmed. § 557. The caption and asportation must be felonious.The taking and removal must be done animo furandi. The intent must be to deprive the owner permanently of his property, and it must concur with the caption and asportation. Thus, where one borrows or hires a horse intending to return it, but subsequently changes his mind and converts it by selling it, he is not guilty of larceny.99 Nor is the taker guilty of larceny where his intent is merely to deprive the owner of his property temporarily. Thus, where he takes another's horse to go a short distance, intending to return it, he is not guilty of larceny. It has been held, however, that where a person takes another's horse, without his consent, to ride a short distance, intending to turn it loose to stray back, that he is guilty of larceny;2 but this view is not sustained by the weight of authority.3 Where one takes another's property with intent to return it to its owner upon receiving a reward for so doing he is guilty of larceny. And where his intent is to sell it back to the owner, or to apply it on a debt owing to the owner by the thief, or to induce the owner to sell it at a reduced price, it is sufficient to render the offense larceny. Where the property is taken with intent to 99 Gooch v. State, 60 Ark. 5, 28 S. W. 510. 1 State v. South, 28 N. J. L. 28, 75 Am. Dec. 250; Schultz v. State, 30 Tex. App. 94, 16 S. W. 756. See also, Wilson v. State, 18 Tex. App. 270, 51 Am. Rep. 309n, Derby's Cases 477. 2 State v. Ward, 19 Nev. 297, 10 Pac. 133. 3 Rex v. Crump, 1 Car. & P. 658; Umphrey v. State, 63 Ind. 223; Dove v. State, 37 Ark. 261; State v. York, 5 Harr. (Del.) 493. 4 Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506; Commonwealth v. Mason, 105 Mass. 163, 7 Am. Rep. 507. 5 Reg. v. Hall, 3 Cox Cr. C. 245, 2 Car. & K. 947; Commonwealth v. Stebbins, 8 Gray (Mass.) 492; Fort v. State, 82 Ala. 50, 2 So. 477. pledge it and subsequently to redeem and return it to the owner, the act constitutes larceny. Some decisions are to the contrary. According to the better view the taker's intent to redeem and return the property to the owner, and his ability to do so, are immaterial.8 It is to be observed, therefore, that the term "permanently," as used in the definition of larceny, has a restricted meaning. It does not mean precisely keeping the specific property from the owner's possession. So a conviction of larceny was upheld where the defendant and two others took from the owner, without his consent, two geldings which they secreted in the woods, some three miles distant, for the purpose of securing a reward which the parties to the transaction expected would be offered for their return and the result contemplated was accomplished by their return and a receipt of the reward offered.9 § 558. Asportation need not be for benefit of taker.Some authorities hold that to constitute larceny the caption and asportation must be done lucri causa.10 These authorities, however, are not in accord with the better view, or weight of authority." It has been declared not to be larceny, but malicious mischief, to take the horse of another, not 6 Reg. v. Beecham, 5 Cox Cr. C. 181; Reg. v. Trebilcock, 7 Cox Cr. C. 408. 7 Rex v. Wright, 9 Car. & P. 554n. 8 Reg. v. Phetheon, 9 Car. & P. 552. 9 Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506. 10 McDaniel v. State, 8 Smedes & M. (Miss.) 401, 47 Am. Dec. 93; State v. Brown, 3 Strob. (S. Car.) 508; Pence v. State, 110 Ind. 95, 10 N. E. 919; Respublica v. Teischer, 1 Dall. (Pa.) 335, 1 L. ed. 163; United States v. Durkee, Fed. Cas. No. 15009, 1 McAll (U. S.) 196; 11 Williams v. State, 52 Ala. 411 (overruling State v. Hawkins, 8 Port. (Ala.) 461, 33 Am. Dec. 294); State v. Davis, 38 N. J. L. 176, 20 Am. Dec. 367; Warden v. State, 60 Miss. 638; Delk v. State, 64 Miss. 77, 1 So. 9, 60 Am. Rep. 46; State v. Wellman, 34 Minn. 221, 25 N. W. 395; State v. Caddle, 35 W. Va. 73, 12 S. E. 1098; Dignowitty v. State, 17 Tex. 521, 67 Am. Dec. 670; Best v. State, 155 Ind. 46, 57 N. E. 534; State v. Slingerland, 19 |