Larceny

One of the elementary rules for the practitioner in criminal law is to make sure, when prosecuting an accused person that every element of the offence charged is present and can be proved. When defending an accused person, the first step equally is to scrutinize the case for the prosecution with a view to discovering whether some such element is lacking. This will not infrequently result in the finding of a weak spot which can be successfully attacked.  What is true for the parties or their Advocates is true also for the Court. Quite a number of cases arise where justices misdirect themselves or are ill-advised on their law, and a proportion of these arises from neglect of the simple precaution we have indicated.  Where there is a statutory definition of a crime and, in these later days, very few crimes are not expressly or by clear implication defined in some Act of Parliament, it pays to re-peruse the definition and consider it in the light of the facts.  The definition of larceny offers a useful-illustration of the point we are making. Section 1 of the Larceny Act, 1916, runs : “For the purposes of this Act” (an unnecessary piece of cautious phraseology this) “a person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen, with intent, at the time of such taking, permanently to deprive the owner thereof.”  Every word of every one of these phrases has a definite meaning—none must be ignored.  The article stolen must be one capable of being stolen. For instance, goods which have been abandoned are not capable of being stolen, and if the jury (or the justices trying a charge by consent) find that the accused believed the goods to have been abandoned by their owner, he is entitled to be acquitted.  There are other exceptions, mostly derived from the subtleties of mediaeval lawyers. One such is enshrined in the definition section from which we have already quoted : the carcase of a creature wild by nature and not reduced into possession while living, unless after killing the killer has abandoned possession of the carcase. (Fancy that surviving into an age which prides itself on being practical).  The article must be taken fraudulently and without a claim of right made in good faith. If the accused honestly thought he had a right to take possession of the goods, however mistaken he may have been as to the legal position, he is not a thief. We dealt with this aspect of the matter in a discussion at p. 247 of Vol. 102, on the case of B. v. Bernard (1938), 102 J. P., 282. That case threw the emphasis upon claim, where it rightly lies.  There must be present in the mind of the thief an intent permanently to deprive the owner of his property. This was the difficulty which so many laymen, and even some persons who called themselves lawyers, found so hard to comprehend in the cases of motor cars taken for joy rides and abandoned miles from the place whence they had been removed. The difficulty has been met by S. 28 of the Road Traffic Act, 1930, hut it is unreasonable to limit such a provision to motor vehicles. Why should not the owner of a push bicycle or a pony cart be protected in the same way, or the owner of some valuable tool “borrowed” and left lying about ? Our piecemeal legislation of this kind does us little credit.  The intent to deprive the owner permanently of his property must be in the mind of the thief at the moment of taking. A fraudulent conversion where possession is not obtained by a “taking” may be larceny as a bailee or an offence against later sections of the Act but these imply lawful possession in the first place in the fraudulent converter.  Of course, if the taking be with the consent of the owner, there can be no larceny. The definition was rightly made exhaustive but the dullest person could hardly fail to miss this obvious piece of common sense.  The definition section itself explains “takes and carries away.” The taking may be of the “constructive” variety, i. e., obtaining possession by mistake of the owner with guilty knowledge in the taker, taking by a trick or intimidation, or by finding, where at the time of the finding the finder believes the owner could be found by taking reasonable steps. Carries away includes any removal, however slight, but a thing left in situ whatever intent there may be in the mind of the would-be thief has not been stolen.— J. P. Â

Author Name: All India Reporter