#### *The State*vs. *James Rufus Thurston.*

1. The defendant was a common carrier, owned aboatonthe Santee, and undertook to transport cotton from Orangeburg district to Charleston, belonging to various persons. Before reaching Charleston, and while passing down the river, he communicated his intention, (to one of the hands on board,) of converting the cotton to his own use. After-wards, at “ *Eucliaw Cnek"*in Charleston district, he consummated his previous intention, by burning a portion of the cotton and disfiguring the marks upon the other bales by patching, and had the cotton shipped on board a steamer to Charleston, and sold and appropriated the sales to his own use. Upon an indictment for grand larceny in Orange-burg district, the jury were charged by the court:

First. “ That to convict the prisoner of larceny, there must be a taking and carrying away of the goods laid in the indictment, with a felonious intent, in the *district of Orangebwg.”*Second. “ That when the prisoner received the goods, if he intended to deliver them in good faith to the consigne in Charleston, then his subsequent fraudulent appropriation of them to his own use, could not malte him guilty of larceny.” Third. “ If when the goods were delivered to him, 'lie received them with the intention of stealing them — then it was larceny from the beginning, as laid in Orangeburg district.”

2. The prisoner was found guilty under this charge of petit larceny — And the Appeal Court *held,*upon appeal, among other thing—

1st. That the jury, under the circumstances, were at liberty to infer that the defendant, at the time he received the cotton in Orangeburg, intended to steal it and convert it to his own use — and the verdict of guilty was very properly given.

2nd. That the cotton so stolen by the defendant, belonged to three different individuals, and' he was very properly indicted in three cases — and a conviction in one case, was no bar to a conviction in the two others. The stealing of the goods of different persons, is always a distinct larceny.

*Before*O’Neall, J., *at Orangeburg, Spring Term,*1842.

The prisoner was indicted for *Grand Larceny*in three several cases. In the first case tried, he was charged with stealing 26 bales of cotton, the property of Wm. Theus. The prisoner was a *common carrier,*owning a boat on the Santee. He undertook to deliver cotton *to Wm.*0. Dukes, Charleston, at $1 50 per hale. He received the cotton in Orangeburgli district, and proceeded below the Santee Canal, to Eucliaw Creek, into which he put and came to anchor. This was in Charleston district. Going down the river, he disclosed his plan to appropriate the cotton to his own use to one of his hands, neighbour Garner; and on his refusal to take part with him, he said he would kill any one that might betray him. He took the bagging off three bales, and burned the cotton. With the bagging thus' obtained, after cutting out the owner’s brands,. he patched *383the bales and had them re-marked W. P. by Dryden, one of his hands. He-then directed Garner to deliver the cotton to Hume, at his landing'on the river, and to say that a steamer would be sent for it by Snowden — which was- accordingly done, and the cotton sold and the proceeds paid over to Dryden, who was sent by the defendant to receive it. After Garner was brought to the jail of Orangeburgh, as a witness, the prisoner told him he was owing him a good deal of money, and if he would swear to suit him, or do as he was desired, he and his brother would make him up $300; if he did not, he (Thurston) would put him in Williamsburg jail.

The Jury were instructed, that to be a larceny, of which the prisoner could be convicted, there must be a taking and carrying away of the goods laid in the indictment, with a felonious intent, *in the district of Orangeburgh.*The possession was delivered to the prisoner as a carrier, and if when he received the cotton, he intended to carry and deliver it to the consignee, then his subsequent fraudulent appropriation of the cotton to his own use could not make him guilty. But if when it was delivered to him, he *received it with the intention of stealing*it, *then it toas a larceny from the*beginning, as *laid in Orangeburgh district.*

The jury found the prisoner guilty of petit larceny.

In the other- cases, the larceny charged in each arose out of the same transaction, but was of different parcels of cotton belonging to different persons.

The prisoner relied on the previous conviction in bar of these indictments, and contended that the whole affair, though consisting of the cotton of various' owners, was only one larcery. The court thouglit otherwise. The evidence already reported was given in them, and the prisoner convicted in each of the other two cases of petit larceny.

The prisoner moved for a new trial in all the cases:

1st. Because no larceny was proved; the evidence making out only a breach of trust.

2d. Because the larceny, if any, was committed not in Orangeburgh but in Charleston district.

And in the second and third cases especially, on the following ground:

*3843d. Because his Honor charged the jury that the prisoner was liable to be convicted under the two latter indictments, after conviction under the first, notwithstanding it was proved that the goods stolen, although the several property of three different individuals, were at one and the same time, and by one and the same act, appropriated by the prisoner.

4th. Because, in all the cases, there is a variance between the allegata and probata, not described as one transaction.

And the prisoner further gives notice, that a motion will be made to set aside the convictions in the two latter cases, as irregular and void.

Northrop, for the motion,

said: — the first and second grounds of appeal are for error in *the charge*of his Honor the presiding judge.

The third ground may not have been presented in proper technical form at the trial, but it is apprehended that this circumstance will not affect the decision of the court, as the question therein considered can be determined without reference to the mode in which it is introduced. Should this be deemed an objection, however, it may be rectified by supposing that special pleas in bar of *autrefois convict*to the second and third indictments were pleaded, with an averment in each to the same effect, as stated in the said third ground of appeal; and that thereupon his Honor overruled the said special pleas, — ruling that thé said indictments were good, ana that *the offences*charged in each of them, were distinct and not the same. The fourth ground appears to be only a general conclusion from the preceding, and need not be particularly referred to.

X. As to the first ground of appeal, X consider that a larceny was proved by the evidence. It is important, however, to ascertain at what time, and in what place, the original bailment by the owner to the prisoner, (which, being a lawful delivery, rendered the first taking and subsequent possession lawful,) was determined. From the report of his Honor, it appears that the prisoner *received*the several parcels of cotton from their respective owners, with directions from them, and by contract with them, that the cotton should be delivered in Charleston to their several fac*385tors. Did the prisoner at this time so *take*the goods “ of another,” (“ *res*aliena,” in the language .of Bracton,) as would support the words of the indictment *felonice cepit %*Bracton and Lord Coke will be deemed authority. In 3 Inst., chap. 47, p. 107, the definition of larceny is given from the former *:*— Et *sciendum quod furtum est, secundum lege?, contrectatio rei alienee fraudulenta, cim animo furandi invito illo domino cujus res ilia*fuerat.” In explication of which, Lord Coke says, *first,*it must be felonious, *id est cum animo furandi,*as hath been said; and this intent to steal must be *when*it cometh to his hand or possession; for if he hath the possession of it once lawfully, though he hath *animum furandi*afterward, and carrieth it away, it is no larceny ; but this receiveth some distinction, as hereafter shall appear. Secondly, it must be an actual taking; for an indictment *quod felonice abduxit equm,*is not good because it wanteth *cepit.*By taking, and not bailment or delivery, for that is a *receipt*and not a taking; and thereupon agreeth Glanvill — “ *Furtum non est ubi initium habet detentionis per dominum rei.”*

“But herein the law doth distinguish, for if a bale or pack of merchandize be delivered to one to carry to a certain place, and he goeth away with the whole pack, this is no -felony; but if he open the pack and take any thing out *animo furandi,*this is larceny; likewise if the carrier carry it to the place appointed, and after take the whole pack *animo furandi,*this is larceny also : — for the delivery has taken its effect and *the privity of the bailement*is determined.”

I have quoted the language of Lord Coke at length, because the law respecting larceny in cases of bailment, is here laid down in the simplest and clearest terms. Larceny is a crime against the *dominium*or lawful possession of personal goods; a bailment is the lawful delivery of goods by the bailor having the lawful possession of them to another, whose possession is, therefore, lawful, and while the bailment continues, the bailee can never be' said to have *taken felonice et invito domino.*The bailee could hot be guilty of larceny of the goods, because *initium detentionis*was *per dominum, rie.*The bailment may be determined, either by the special purpose for which the *386goods were delivered to the carrier being performed, — as when they are delivered at the place agreed on by the bai-lor and bailee, — or where the bailee commits, pending the bailment, some *tortious conversion*of the goods in his charge. The technical reason of the rule seems to be that the possession of the bailee is in the nature of a trust, which attends the bailment so long as it continues according to the directions of the bailor. The bailor *trusts*the bailee that he shall carry his goods to a certain place; if in the first instance, the bailee performs the contract, the trust is executed, and the bailee being no-longer a trustee, the whole property and interest in the goods are in the owner, and the possession of chattels following the ownership, they are considered in his lawful possession ; if, therefore, the carrier, or any one else, take them, the person so taking may be said to take the personal goods of another (alieni) out of his possession. If, in the second instance, the bailee tortiously convert the goods, by breaking open a package, severing a part from the whole, or doing any thing to the goods inconsistent with his relation of trustee, he is considered as terminating the trust, and with the termination of the trust, all his interest and special property in the goods which were the subject of the trust; whereupon, as above, the property in the owner becomes absolute, the possession *entirely*in him, and if the carrier or any one else take them, the person so taking may be said to *take*the personal goods of another (alieni) out of his possession ; whereas, if the bailee, pending the trust, carries off the goods without any termination of it, either by its execution or infraction, he is only guilty of breach of trust, for having the *special*property and lawful possession as trustee, he cannot be said to *take*the personal goods of another (alieni) out of his possession. This explication of the rule is rendered more manifest by what Lord Coke says of “ the diversity between a possession and a charge; for when I deliver goods to a man, be hath possession of the goods, and may have an action of trespass, or an appeal, if they be taken or stolen out of his possession ; but my butler or cook, that in my house hath charge of my vessel or plate, hath no possession of them, nor shall have an action of trespasse, or an appeale, as the bailee shall; and therefore, if they steal the plate or vessel, it is larceny,”- — 3 Inst. *387108. In 1 Hale’s Pleas of the Crown, p. 504, and 1 Hawk, ch. 33, sec. 5 and 7, the same positions are distinctly laid down; and Hale uses the words, “ and the taking after-wards is a new taking.” The reason of this distinction is-sufficiently manifest, independently of technical considerations, for when a person *receives*goods from another who voluntarily places them in his charge, he is merely a passive agent — he commits no overt act by which his fraudulent intention is evinced. If the person so receiving is *a common*carrier, he is to be regarded as merely engaged in his usual avocation, and certainly not of practising upon the confidence of others by false pretentions. The bailor is bound to exercise proper carefulness in his selection of the bailee, and relies upon his general character. Hence Lord Coke’s distinction between *receipt*and taking, is wise as well as legal, and should always be strictly observed in charging a jury on the legal character of facts upon which -depend a criminal accusation.

The question here considered is fully and elaborately discussed in East’s Crown Law, 2 vol. p. 695, ch. xvi. sec. 115, where several cases are examined. He says “ There are, however, some tortious acts before the regular completion of a contract on which goods are delivered, which may determine the *privity*of it, and amount in law to a *neio taking*from the possession of the owner.” He refers to a case reported in Kelynge’s Reports, p. 81 and 82, which he considers *“*as putting the principle on a far different footing,” and concludes his observations, (p. 697,) thus :

“ But all other writers, as far as I can find, have put this case upon the same footing as Lord Hale, namely, that the privity of contract is determined by the act of breaking the package, which makes him the trespasser; in which the taking the whole or part of the contents, makes no difference, as some have supposed.”

Starkie, part iv. p. 837, 838, and Note x. (to be cited at length.)

It is clear, that when the several parcels of cotton were delivered by the owners, and *received*by the prisoner, he did not at *that time felonice cepit et asportavit rem alienam ■cam animo furandi invito illo*clomino, *cujus res illa fuer at.*It is also clear, that if he be guilty of larceny, he is so be*388cause lie terminated the privity of the contract of bailment between himself and the owners, by the tortious conversion of the cotton, whereby he became a trespasser, and there was a *new taking;*— the new taking and trespass were immediately after ihe conversion, and he did *at that time*“feloniously take and carry away the personal goods alieni,” and was guilty of larceny. And I will proceed to the second ground.

II. If then it be true, as laid down in East’s Pleas of the Crown, p. 696, that “to constitute larceny, there must be an unlawful *taking*and trespass, and up to the moment of his parting with the whole package his possession is lawful, and he has no unlawful possession afterwards, whereby to constitute a *new*taking, unless he break the package or some part of the commodity from the rest while it continues in his possession” — if it be true that the unlawful taking or trespass was committed immediately after the prisoner converted the cotton to his own use, and thereby terminated the bailment and his special property therein as trustee for the owners ; then the larceny was not committed *before*this tortious conversion occurred, and it follows, either that there was no larceny, or that it was committed at Euchaw creek, in Charleston district.

The prisoner, therefore, should have been tried in Charleston district, and the jury should have been charged that the offence being laid to be in Orangeburgh district, and proved to have been committed in Charleston district, the prisoner was entitled to his acquittal. The law is so well settled, that I will only refer to Hawkins’s Pleas of the Crown, book 2, ch. 25, sec. 35, as follows : “ But of whatsoever nature an offence indicted may be, whether local or transitory, if upon not guilty pleaded, it shall appear that it was committed in a county different from that in which the indictment was found, the defendant shall be acquitted;” and to Thomas’s Case, in 2 Leach’s Crown Laws, 634, “All offences must be tried in the proper county where they are committed.” The prisoner is entitled to his acquittal on every of the indictments preferred against him in *Orangeburgh district.*

Every question in this case may be considered as depending on the settlement of the doctrine, either *as laid**389down in East and Starkie above cited, or as stated in Kelynge’s Reports, which is as follows ;

“ The case was, one bargained with another to carry some packs of goods for him to Southampton, and delivered! the goods to the carier, and he taketh them and carries them to *another*place, and there *opens*the packs, and takes the goods and disposes of them to his own use, and the question was whether that was felony or not; and though it was objected the goods were bailed to the carrier, and therefore, there could be no felony, that was agreed generally to be good law. And it was also objected, that an indictment against one that he *fehnice asportavit*such goods, is not good, but it must be *felonice cepit and asportavit,*and in that case the taking was lawful; yet it was resolved that it was felony, because his *subsequent*act of carrying the goods to *another*place, and there *opening of them*and disposing of them to his own use, declareth that his intent originally was not to take his goods upon the agreement and contract of the party, but only with a design of stealing them.”'

Here the decision was correct, and the reasons given “ because his *subsequent*act of carrying the goods to *ano-, ther place,*and *there opening of them*and disposing of them to his *own use,”*would have sustained the conclusion *that the bailment was determined,*and that there was then a *neto taking*and trespass; and the fraudulent intent being manifest, the larceny was complete. The doctrine of “the carrier’s case,” as it is termed, has become settled, and has been repeatedly recognized in all criminal courts governed by the English Law. It is the pivot of this case, and must be either now confirmed or abolished. It cannot be said that the question of intention was altogether for the jury, and that by their verdict it has been disposed of. This doc-, trine should have been expounded to them, and they should have been charged that according to the decided cases, and the facts in evidence, the crime was not proven to have been committed in Orangeburg district, but at the place where the *new taking*occurred, and the trespass was committed.

The third ground also, respecting which his Honor distinctly ruled that there were as many larcenies as there were *owners*of the goods stolen, is also intimately connect *390ted with the above doctrine; for if the larcenies were committed when the prisoner *received*the cotton, then the ruling of his Honor was altogether *obiter,*asno question could have arisen thereon. The larceny (or larcenies, according to the dictum of his Honor,) was or were manifested by the conversion with fraudulent intent, and it should be conceded at least arguendo, that the *criminal*acts were committed *when*the owners’s marks were obliterated, and part of the cotton burnt.

III. And I now come to the third ground, in reference to which I lay down the following propositions:

*(a) “*A crime is an *act*committed or omitted in violation of a public law either forbiding or commanding it.” Black. Com. iv. p. 5.

*(b)*“ The King in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is, therefore, in all cases the proper prosecutor for every public offence.” Black. Com. iv. p. 2.

*(c)*Crime imports intention, for “ *actus non facit reum nisi mens sit rea.”*3 Inst. 107.

*(d)*Larceny is “ *secundum leges, contrectalio rei alienee fraudulenta, cum animo furandi,”*(fee. Bracton, Lib. 3, fol. 150. Coke, 3 Inst. 107.

*(e)*All moveable things are either subjects of property, or they are not.

(/) These subjects of property are “ bona” in the language of the law, and are distinguished as “ *bona conjus-dam*propositi,” (i. c.) the goods of a *certain*person proposed, or *bona alieni,*(i. e.) of another.

The terms *“alieni,”*or “ of another,” are used as opposite to *sui,*or of his own.

*(g)*The gist of the crime of larceny is not the personal wrong to any individual, but the taking and carrying away personal goods not the property of the thief, with the intention of stealing them.

Lord Coke, in his explication of this part of the definition “of another” merely considers it as a term of distinction from such things, as being the property of the person taking, could not involve him in the charge of larceny. The *391things which may he stolen, must he subjects of property in somebody, ‘and not such things as are said to be *nulliüs in- bonis.*The *act*of taking and carrying away with *intent*to steal, is the crime; and indeed, if the true owner of goods take them out of the possession of a carrier, with intent to defraud the carrier of his hire, or to charge him with their value, he is guilty of larceny ; for then there is *the fraudulent*taking and carrying away, which constitutes the crime.

In the question of *whose*property, it is only important to shew that it was not that of the thief, except where it becomes a part of *the description*of the larceny, and then *for certainty*should be truly alleged, and proved as alleged, whether known or unknown. The particular ownership of the property is not material to the essence of the crime. “ An indictment of larceny of the goods *cujusdam*ignoti, is good, for it is the King’s suit, and though the owner be not known, the felony must be punished.” Hale’s Pleas of the Crown, 1, p. 512. Indeed, it would seem that all that is really requisite in an indictment, is to describe the goods stolen as things which are *properly,*and all edge that they were feloniously taken; for the allegation of stealing, implies that they did not belong to the accused, and the crime is made out if the things taken' are described as chattels of value, or property. So Hale immediately after says, “ An indictment *quod A verberarit £,*and 20 *jacks pretii*20s. *felonice*cepit, *(Sic.,*.held good *loithout sheioing whose they are.”*10 Henry Vlth. Greater particularity is now required in indictments, but it is apparent that the private injury is not the gist of the crime, but the offence to the sovereign or State, and which is prosecuted by public authority.

(/¿) If a person at one and the same time, at one and the same place, and by one and the same act, steal the personal goods of several different persons, he has committed but one larceny, and is liable to but one indictment, trial, conviction and sentence therefor. This position is so clear and well established, that it is of rare occurrence to find cases in which the contrary has been contended. Larceny is simply the “felonious taking and carrying away the personal goods alieni,” whether of one or of many, known •or unknown. Suppose on an indictment for stealing goods, *392the property of a person or persons unknown to the jury, •the defendant was acquitted or convictedsuppose the goods were so particularly described by *marks*or in any other way, that they could be designated precisely, although the ownership was not known, *pretii*$100. Suppose after defendant’s acquittal or conviction, the owner or the several owners of these identical goods were to be discovered, and defendant was again indicted for stealing *a part*or *ali*of these identical goods — would not his plea of *autrefois acquit*or convict,'on proof of the identity of the goods themselves, be a sufficient plea in bar *1*

If the position *(h)*be not sound, then, in this supposed case, the defendant would be liable to conviction for stealing, say “ 20 *jacks pretii*20s.” the property of a person unknown, and after being punished therefor, he might be convicted of stealing 5 *jacks pretii*5s., the property of A, and after being punished therefor, he might be convicted of stealing 10 *jacks pretii*10s., the property of B, and after being punished therefor, he might be convicted of stealing the remaining 5 *jacks pretii*5s., the property of C.; for according to the rule which was laid down at Orangeburgh, the indictments being all different in their allegations of ownership, the pleas of *autrefois convict*would have to be overruled. Now is it not evident, that in each of the three last cases the defendant would have been tried for the same crime for which he was convicted in the first'?

The whole difficulty is occasioned because the most usual mode of *describing*goods, is by alleging the name or names of the owner or owners; and hence writers, in illustrating the nature of the pleas of *autrefois*acquit and convict, refer to the name or names of the owner or owners,as the *designation of the goods.*It matters not, therefore, whether there be one or many owners, known or unknown, so far as the essence of the crime is considered ; that consists in the *act*and the accompanying *intent.*Suppose gamblers are playing round a table, and have placed their stakes, undistinguishable, as coins of the same denomination usually are, in a plate or oup, and the sum total of the stakes were taken up by a thief and poured into his pocket —is it not clear that he would have committed but one criminal act and one felony *1*If the game had been broken *393up, the players would have had a right each to his own stake — therefore, the thief took the property of different persons, who we will suppose are gone and unknown. Suppose he had been indicted for taking the coins of a person unknown, and on evidence it appeared that one of the gamblers, unknown by name, had placed five silver dollars in the plate — and that the thief had taken *all*the money — he would be convicted ; if again indicted for taking the coins of another person unknown, would he not show that he had been convicted for the *act*of stealing *all*the coins,— for those *he*stole were u nd is ti n gu i s h abl e, — and that he could not be tried more than once for this offence *1*It is as hard to prove this position, as it is to demonstrate an axiom in mathematics. Probably authority is better in such a case than reasoning.

Let it be remembered that grand and petit larceny are of the same nature, differing only in the *value*of the thing stolen.

Hale, Pleas of the Crown, vol. 1st. p. 531, says, “If at the same time he steals goods of A. of the value of sixpence, goods offB. of the value of sixpence, and goods of C. of the value of sixpence, being perchance in one bundle or upon a table, or *in one shop,*this is grand larceny, because *it was one entire felony, done at the same time, though the persons had several*properties.”

East’s Pleas of the Crown, p. 934, in the case of *Rex vs. Thomas,*“on a count for uttering several forged receipts, the court will not put the prosecutor to his election on which receipt to proceed,” “ as the receipts were charged to have been uttered *at one and the same time,*and might constitute *only one*offence of uttering many forged receipts. And accordingly it was proved, that the several receipts there stated were forged, and were uttered at one and the same time in one bundle by the prisoner.”

Leach’s Crown Laws, vol. 1st. p. 538, Doran’s case, per Chief Baron Eyre, “ the grand jury cannot with propriety find two indictments for the same offence at the same time.”

Burrows’ Reports, *Rex vs. Bmjiekl & Saunders,*980. This case arose under an information filed for a libel *upon several persons.*The court “ looked upon this to be one offence; the gist of the charge is *singing*of these songs in *394the manner and with the intent charged in the information.”

In Thurston’s case,' the gist of the charge is the taking and carrying away of the goods with the intent charged in the indictment.

I presume it will be conceded, that if the felonious taking and carrying away the personal goods of several persons, is a distinct offence of larceny, it cannot at the same time be contended that it is *a distinct*larceny, and also *several*larcenies. It would be like the evil spirit whose name was Legion', because *he*was *many.*It is a rule that “ every count should charge the defendant as if he had committed a distinct offence yet the first form of indictment for larceny in Chitty’s Criminal Law, vol. 3, p. 950, charges as one larceny the stealing of several different articles of property belonging to different persons. The position now contended for is not only reasonable as a logical deduction from the terms of the law, and established by the highest authority, but its converse would be iniquitous, and contrary to the spirit of our laws. When penalties and punishments aré prescribed, they are considered as rods in the hands of' the Roman Lictors, to be used by command of the Magistrate, and not at the caprice or enmity of a revengeful prosecutor. Can it be endured, that in such a case as this, it shall be optional with the prosecutor and Solicitor, whether the prisoner shall be subject to one or several trials and accumulated punishments *1*Common sense, law and humanity, are all opposed.

It seems unnecessary to make any’application of thepoints discussed to the facts of the present case, as their relevancy is apparent.

Edwards, Solicitor, contra,

did not argue the case in the Appeal Court.

*Curia, per*

O’Neall, J.

The first and second grounds, applying to all the cases, will be considered first, and together. For if the convictions are good, it is upon the ground that the prisoner, when he received the cotton, in Orangeburg, intended to steal it, and afterwards consummated that act. There is no doubt, as was said to the jury, *395if the prisoner received the cotton, with the intention of carrying and delivering it, according to his contract, and afterwards changed his mind and fraudulently appropriated it to his own use, he would not have been guilty of a larceny in Orangeburg district. It has been conceded herej that the act done at Echaw creek, in Charleston district, was a plain larceny; and the only question is, whether the jury were at liberty to ascribe the beginning of the felonious intent to the time at which the prisoner received the cotton. It is plain, from Garner’s testimony, that on the voyage, and before they reached Echaw creek, the prisoner communicated to him the scheme of appropriating the cotton to his own use. This, from any thing which appears, might have been in Orangeburg district, and is enough to sustain the verdicts. But I have no disposition to evade the question. For I hold that the jury were at liberty to infer, from the felonious intent manifested at Echaw creek, where the prisoner first broke bulk, burned three bales of his load and altered the marks of the others, and sent on the cotton to a different consignee; under a false name, that he received the cotton intending to steal it; and when they came to that conclusion in fact, they did right in finding him guilty in Orangeburg district. In the *State vs. Pleasant*Gorman, 2 N. *&*McC. 90, Judge Johnson stated the law to be that “whatever might have been the old rule on the subject, there can be no question that, at this day, a larceny may be committed of goods obtained by delivery, from the owner, if done *anomo*jurancli.” In another part of the case, he states the effect of the verdict to be conclusive of the question of the prisoner’s intent in receiving the goods.- For he says, “that the prisoner got possession of the horse, with the stealing of which he is charged, with a felonious intention, is determined by the verdict of guilty.” Putting these two principles together, it is plain, that where the jury have evidence which may or may not bring them to that conclusion, they have the right to say, from all the facts, whether the felonious intent existed *eo inslan-ti,*at the reception of the goods, or arose afterwards. This view has the sanction of a very eminent criminal lawyer. Archbold’s Crim. Plead. 187, lays down the law as follows : “If A obtain goods, *animo*furandi, *or receive them**396harboring, *at the*time, *an intention wrongfully to convert them to his own*use, *it is larceny.*Thus where the defendant was employed to drive sheep to a fair, but instead of driving them to the fair, he drove them in a contrary direction and sold ten of them on the morning he received them, and *the jury were of opinion that at the time he received*them, *he intended to convert them to his own use: this was held to be larceny."*This comes up so fully to the cases before us, that I will not pursue this part further. The remaining ground only applies to the two cases last tried, and will now be considered. It must be tested under the plea of *auterfois convict.*The same rules apply to it, as to the plea of *auterfois acquit.*Archbold’s Crim. Plead. 88, speaking of the plea of *auterfois*acquit, says, “the true test by which the question, whether such a plea is a sufficient bar in any case may be tried is, whether *the evidence*necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the first.” Inquire under this rule whether the evidence under the second and third cases, could havepro-duced a conviction under the first *1*It is plain it could not. For in it, the cotton stolen is charged to be the property of William Theus. In the second and third, the cotton is laid as the respective property of Mack *&*Fogle. The property must be proved, as laid, or there can be no conviction. Hence the' proof, in this respect, must be different in each case-; and therefore the plea could not be sustained. In *The State vs. Ryan &*Jones, 4th McC. 16, the property stolen was laid to be the “goods and chattels of A. B. &c.” It appeared that a part belonged to A., a part to B., and a part to C.; it was held that the proof did not sustain the allegation. That case not only sustains the position which I have already laid down, but that the stealing of the goods of different persons is always a distinct larceny, or *may at least be so treated by the*Solicitor, if *in his discretion*he *thinks proper so to do.*The only authority which has been cited for the contrary position, is that from 1st Hale’s P. C. 531. That, when examined, will be found to amount to no more than this, that several petit larcenies on different days of the goods of A; or of the goods of A. B. *&*C., if committed by one and the same act, *may7 in order to make**397*out the higher offence of grand*larceny, *be joined in one indictment.*The first position laid down by that great Judge and good man, Sir Matthew Hale, is, “ If A. steals the goods of B., to the value of 6d, and at another time to the value of 8d, so that all put together exceeds the value of 12d; yet this is held grand larceny, *if he be indicted of them altogether*.” The result, by the authority, is made to depend upon the offences being united in one indictment. It is therefore not opposed to the view, that for the goods of B. stolen at different times, different indictments would lie. Again he says, “ *it seems to*me, that if he (the prisoner) steals goods of A., of the value of 6d, goods of B. of the value of 6d, and goods of C. of the value of 6d, being perchance in one bundle, or upon a table, or in one shop, this is grand larceny, because it was one entire felony, at the same time, though the persons had several properties, and *therefore if in one*indictment, they make grand larceny.” This qualification again shews, that by treating the different larcenies as one act, they become one offence. But I apprehend that it never entered into the head of the learned Judge, that each of these could not be regarded as *separate petit larcenies.*For that would be in favor of the prisoner, and hence if separated by the Solicitor, the court would have regarded them according to their intrinsic character. So if they had been grand larcenies, an indictment would have laid for each; and an acquittal in one, would not have barred the others. But the moment a conviction took place in one, it might have suspended the others, and if clergy had been allowed and the judgment of branding had been executed, then *that*operating as a statute pardon, would have discharged the prisoner from the other indictments. 2d Hale’s P. C. 254.

The motions in all the cases are dismissed.

Richardson, Evans and Butler, JJ., concurred.

Earle, J.

dissenting. I am not satisfied with this conviction. It is the case of a common carrier, to whom goods have been delivered to be carried to a certain place, and who thereby acquired a special property and a legal possession. To make the taking in such case before the goods are brought to the place of delivery larceny, it *398should be proved that the delivery was *fraudulently procured,*with a felonious intent to convert the property so acquired. Such I have always understood the law to be ; and such is stated by Mr. East, in his Pleas of the Crown, 2 E. P. C. 393, to be the result of all the cases. “ It is to be collected from them, says he, that if a person obtain the goods of another by lawful delivery, without fraud, although he afterwards convert them to his own use, he cannot be guilty of felony. As if a tailor have clotlr delivered to him, to make clothes with; or a carrier receive goods to carry to a certain place, <fec. But if such delivery be obtained by any falsehood, or fraud, and with an intent to steal, though under the pretence of a hiring or even a purchase, the delivery in fact by the owner will not pass the legal possession so as to save the party from the guilt of felony.” The case of Gorman, 2 N. *&*McC. 90, who by falsehood and fraud obtained the delivery of a horse as a loan, and immediately rode off in another direction and sold him, was one of this description, and the intention to convert, manifested by the falsehood in obtaining possession, made the taking larceny. But in the case before us, the cotton was delivered by the act of the owners to the prisoner, in the way of his ordinary employment, without any other procurement on his part; without any fallacious appearances, or other inducements held out to them to repose this confidence in him. There is nothing therefore to distinguish this case from that of every other carrier who takes goods entrusted to him, before they come to the place of delivery ; and then the larceny is complete only upon the actual taking, which dissolves the privity and constitutes the larceny. Now whether the taking by the prisoner was of such a sort at the time and place of its being committed, I will not inquire. But I conclude from the rule to which 1 have referred, that it could only be a larceny in Charleston district, where the cotton was converted. The case of four prisoners, Barnet and others, at Worcester, reported in 2 Russ, on Cr. 191, was of a similar kind, and it was held to be larceny at the place of taking. The case cited from Kelynge, 81, of the carrier who carried the packs of goods to the appointed place, and opened them and took the goods, is there put, it is true, upon the ground of an intent *399originally not to take the goods upon the agreement, but only to steal them. The ground of decision, however, is put by all the other writers upon a different principle, that breaking the package dissolved the privity and made him a trespasser. 2 E. P. C. 696, 697. I see nothing in the proof here from which the jury could infer that the cotton was obtained with an intent to convert. If the rule adopted by the court be correct, and the larceny was committed when the cotton was received, it follows that each parcel constituted a different offence.