It was conceded, upon the argument in this case, that if the evidence, upon the trial at the Oyer and Terminer, established a case of larceny, the conviction was *Page 116 wrong. The simple question for our examination, therefore is, whether the separation of a portion of the iron from the whole, and the felonious conversion of it, constituted larceny
At common law it is well settled that if a carrier or other bailee opens a bale or package of goods, or pierces a vessel of wine, and takes away and disposes of part of it, it is larceny, although if he has disposed of all of it, it is a breach of trust merely (Arch. Cr. Pl., 384; East's Cr. L., 697); and under this it has been held that taking an entire bale from several would not constitute the offence. (5 Carr. Payne, 533.) Various reasons have been assigned by commentators for this distinction, none of which are entirely satisfactory. It has been said to be "such proof of the original felonious intention that it has always been held to be larceny." (Kel. 81, 82.) As suggested in 2 East's Criminal Law (p. 697), if taking a part is evidence of the original felonious intent, no less, surely, would the taking of the whole be. Again, it is said by BLACKSTONE that if a carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away a part, it is larceny, for here the animus furandi is manifest, since he had otherwise no inducement to open the goods. (4 Black., 230.)
But the prevailing principle upon which the distinction is placed is, that the act of breaking the package or bale is an act of trespass in the carrier, by which the privity of contract is determined; and although the principle is said to stand more upon positive law, not now to be questioned, than upon sound reasoning (2 East's Cr. L., 695), yet it seems to be admitted to be the correct principle in all the cases in which the question has been canvassed. (1 Hale, 504; 1 Hawk., ch. 33, §§ 5, 7; 3 CokeInst., 107.)
In the case at bar it is insisted, on the part of the people, that the bailee can commit larceny only where he actually breaks a bale or package; that it is this breaking alone which can determine the privity of contract and render the asportation by the carrier a trespass. But this, I think, is *Page 117 too narrow a construction of the rule, and one not sustained by the commentators and adjudications. Any separation of a part from the whole would seem to be as much a trespass as the breaking of a package. Indeed, it is the separation that constitutes the trespass. This seemed to be conceded upon the argument in regard to grains and things of that kind, but a distinction was attempted to be drawn between grain and iron in the form of pigs.
But I am unable to perceive the force of the distinction. What the rule might be in the case of articles having, as it were, a separate identity, like barrels of flour, saw logs and the like, it is not necessary to inquire. In this case, the iron was in a condition in which it is transferred in bulk by the hundred pounds or by the ton, and not by count. Although more readily separated by individual count than the kernels of grain, it is not a subject of trade or commerce by count any more than grain is; and a separation of part from the rest would seem to be just as much a trespass as the separation of a portion of a load, in bulk, of corn, apples or potatoes from the whole would be. It is this separation of any article conveyed in bulk, by a carrier, from the whole, which constitutes the distinction between larceny and embezzlement.
In 2 East's Criminal Law (p. 698) it is said: "The separation of the part of the goods from the rest, with a felonious intent, seems, however, to be material when they are delivered as one entire body or mass, though no case or package be broken, because such an act equally evinces a determinanation of the privity of the contract." He cites 1 Rolle's Abridgment (p. 73, § 16), where it was held that "if a man says to a miller who keeps a corn mill, thou hast stolen three pecks of meal, an action lies; for, although the corn was delivered to him to grind, nevertheless, if he steal it, it is felony, being taken from the rest."
So HAWKINS (book 1, ch. 33) says: "Those having possession of goods by the delivery of the party may be guilty of *Page 118 felony by taking away a part thereof with an intent to steal it, as if a carrier open a pack and take out part of the goods, or a weaver who has received silk to work, or a miller who has corn to grind, take out part with intent to steal it, in which case it may not only be said that such possession of a part, distinct from the whole was gained by wrong and not delivered by the owner, but that it was obtained basely, fraudulently and clandestinely, in hopes to prevent its being discovered at all, or fixed upon any one when discovered." This latter reason, I apprehend, would apply much more forcibly to the separation of a part from the whole when it is in open bulk than where a package is broken open.
In Rex v. Howell (7 Carr. Payne, 325), the prisoner was employed to land a boat load of staves from a ship, and he landed all but two which he secreted in the bottom of the boat, and one, which he landed, he carried to his mother's house. The court held, in the words of PATTESON, J., that the non-delivery of the two was not larceny, "but the prisoner separating one of the articles from the rest, and taking it to a place different from its destination, was, if he did it with intent to appropriate it to his own use, equivalent to breaking bulk, and therefore would be sufficient to constitute larceny."
The learned judge who read the opinion in the court below suggested that the decision of this case might have been based upon the actual delivery of the staves at the place of destination and a subsequent asportation, which would constitute larceny within all the cases. It is enough that the court in that case did not put their ruling upon any such ground; and I assume, from the remarks of Justice PATTESON, that the stave was taken directly from the boat to the place where it was found, notwithstanding the imperfect statement of the facts would indicate that it was first landed.
In Commonwealth v. Brown (4 Mass., 580), a wagon load of goods, consisting of several packages, was delivered to be *Page 119 transported from one place to another, and the prisoner fraudulently took away one of the packages; it was held to be larceny. This was carrying the rule much farther than is necessary in this case, but the court considered that the goods were delivered to the prisoner already loaded, "as one mass or body, and his taking away one package was separating a part from the whole, and thus he determined the supposed privity of contract."
So, in Commonwealth v. James (1 Pick., 375), the same court held that where a miller having received barilla to grind, fraudulently retained a part of it, returning a mixture of plaster of paris, it was larceny.
The case of Rex v. Madox (1 Russ. Ry., 92), was cited in the court below as a case in point against the prisoner. In that case the prisoner, who was the master of a vessel, received two hundred and eighty casks of butter to carry in his ship; most of the casks were stowed in the hold and battened down, but some were put upon deck. The master disposed of thirteen of those upon deck upon the voyage. It was held that this was not larceny, although it seemed to be admitted by the court that if the prisoner had broken bulk, by taking the thirteen from those battened down, it would have been larceny. This case, it seems to me, is not in point at all. These casks were delivered to the master by count and not in bulk, and consequently there was clearly no breaking bulk, no taking part from the whole of the mass or bulk delivered, but it was a mere separation of a number of separate articles from the whole number. The casks were clearly what might be deemed separate packages, as they lay upon the deck. But it seemed to be conceded that if the master had taken them from those battened down it would be larceny.
In the case of Rex v. Fletcher and others (4 Carr. Payne, 545), the goods were in packages, and were taken out, but the prisoners were acquitted on the ground that it did not appear that the packages had been broken open while in *Page 120 their possession. If the prisoners had broken open the packages it would have been larceny within all the cases I do not see, therefore, wherein the case has any bearing upon the point in this case.
In Rex v. Pratley (5 Carr. Payne, 533), the prisoner was employed to carry in his cart three trusses of hay, and he took away one of them, which was found in his possession but not broken up. It was held not larceny. Here there was clearly no breaking bulk. The three trusses were three separate packages, and the conversion of one whole package was held by the court not to be larceny. If the pig iron had been put up in separate boxes, and the prisoner in the case at bar had been indicted for stealing one or more boxes, that case would have been in point.
I have now referred to the principal cases upon the question, and it seems to me quite clear that this was breaking bulk within the meaning of the rule as established by those cases. The separation of a part from the whole bulk or mass was a trespass, determining the supposed privity of contract; and I think our statute for the punishment of embezzlement is based upon this view of the law. It provides "that if any carrier or other person to whom property shall be delivered to be transported for hire shall convert, c., in the mass, as they were delivered, without breaking the box, trunk, pack or other thing in which they shall be contained, he shall be punished in the same manner as if he had taken, c., such goods after breaking the trunk, box, pack or other thing containing the same, or after separating any of them from the others." The language of this provision clearly recognizes the separation of a part from the rest as breaking bulk.
This case turns upon a narrow point, and no actual injustice to the prisoner, perhaps, would be done by affirming the judgment below; but our decisions are precedents for future cases, and although this prisoner may go unwhipt of justice in consequence thereof, yet we must propound the *Page 121 law as we find it, whatever the consequence may be in this particular case.
SELDEN, ROOSEVELT, HARRIS and STRONG, Js., concurred in this opinion. DENIO and COMSTOCK, Js., dissented, the former delivering the following opinion: