The counsel for the plaintiff in error maintains that, under the statute, a conviction might have been had in this case for larceny, though it should be held that, at common law, the act would have been only breach of contract, or of the defendant's duty as a carrier. (2 R.S., 679, § 62.) The statute declares, in effect, that if a carrier shall take, embezzle or convert goods entrusted to him to carry, though under such circumstances that he could not be convicted of larceny at common law, "he shall, upon conviction, be punished in the same manner as if he had taken, embezzled, converted or secreted such goods, c., after breaking the trunk," c. There is some plausibility in the suggestion that the statute abolishes the distinction, so much discussed, in cases where carriers are charged with larceny, and that they may be indicted for that offence whether they break open a package or not, and whether they steal the whole or only a part of the goods delivered to them to carry. The offence is certainly made indictable criminally in either case, and the punishment is the same in both; but I am inclined to think, though with some hesitation, that it is not technically larceny now where it would not have been before the statute, but that a new statutory offence is created, and that the indictment should state the circumstances made necessary by the act to constitute the crime. By section sixty-eight of the same article, the severing of anything from the soil, or from a building, gate or fence, with intent to steal it, which acts would have been mere civil trespass at the common law, are made indictable as larcenies; but there it is declared in terms that the offender "shall be deemed *Page 122 guilty of larceny in the same manner and in the same degree as if the article so taken had been severed at some previous and different time." The omission of a similar expression in the section respecting carriers is significant to show that a statutory offence was designed to be created.
The remaining question is, whether the taking from the boat and disposing of the bars of pig iron under the circumstances was larceny at common law; for if it was, the plaintiff in error ought to have been convicted under the former indictment, and was entitled to an acquittal upon the one upon which he was last tried. According to the argument made in his behalf, the taking and disposing of a part of the property entrusted to a carrier, at the same time, for the same transit, is larceny; while it is conceded that if the whole had been thus disposed of it would not have been larceny at common law, and could only be punished under the statute referred to. There is some authority for this position. In Commonwealth v. Brown (4 Mass., 580), a wagon load of goods, in casks and packages, was delivered to a carrier for transportation. One package, which was on the bottom of the wagon, between a cask of spirits and another package, was purloined by a person whom the carrier had temporarily engaged to drive his team. The driver was convicted of larceny, and the court held the conviction right, affirming the position taken by the counsel for the convict in this case. All the judges, it is true, said that the driver did not stand in the place of the carrier and had no special property in the goods, but they all likewise agreed that it would have been larceny in the carrier if he had committed the act. In Commonwealth v. James (1Pick., 375), the prisoner, who was a miller, had converted a portion of a parcel of barilla sent to him to grind, and had supplied its place with plaster of paris, and the mixture was returned to the owner. There was a conviction for larceny. The court seem to have assumed that the defendant had a special property in the barilla, and was not guilty, except under the *Page 123 doctrine which subjects a carrier who breaks bulk, c. But on the ground that a part had been taken from the mass of the article, they held that the privity of bailment was at an end, and hence that the defendant was properly convicted. The case of Rex v.Howell (7 Carr. Payne, 325), also relied upon on behalf of the plaintiff in error, does not appear to be in point. I understand that the stave which the learned justice thought the prisoner guilty of stealing had been landed from the boat at the place of delivery. The bailment was therefore at an end, and there could be no question concerning a separation of this stave from the others during the transit. I cannot understand all that the judge is reported to have said to the jury, as the case is very loosely reported.
I do not think the rule as laid down in the case in Massachusetts is in accordance with the law as it is understood in England. The principle is stated by COKE as follows: "If a bale or pack of merchandize be delivered to carry to one, at a certain place, and he goeth away with the whole pack, this is no felony; but if he open the pack and take anything out animofurandi, this is larceny; likewise if the carrier carry it to the place appointed, and afterwards take the whole pack animofurandi, this is larceny also; for the delivery had taken effect, and the privity of the bailment is determined." (3Inst., 107.) But suppose he take several packs, and during the transit dispose of one and deliver the rest, this would not seem to be in any respect different from the case of taking a single pack; and so it has been repeatedly held. In Rex v. Madox (1Russ. Ry. C.C., 92), the captain of a ship disposed of several casks of butter, which formed part of her cargo, for his own benefit, and afterwards pretended to the consignees that he had been obliged to throw them overboard. This was held not to be larceny.
In Rex v. Fletcher (4 Carr. Payne, 545), the prisoners were intrusted with goods in packages to carry. They did not deliver them, but the goods were afterwards found, out *Page 124 of the packages, in the possession of a third person, who was included in the indictment as receiver. The trial was before the same judge who presided in Rex v. Howell (Mr. Justice PATTESON). He directed an acquittal, saying "there is no evidence that the packages were opened while the goods were in the possession of the two persons who are charged as principals; and a prisoner cannot be guilty of larceny unless he break bulk."Rex v. Pratley (5 Carr. Payne, 533), was a similar case. Three trusses of hay were delivered to the defendant, a cartman, to carry. He took away one of the trusses, which was found in his possession not broken up. Mr. Justice J. PARKE said, "this is no larceny, as the prisoner did not break up the truss," and he directed an acquittal.
These pigs or bars of iron were as distinct and separate as the casks of butter, or the trusses of hay. The act of taking away a portion of them was no more a breaking of bulk than the taking of one or more of a parcel of any articles resembling each other. They were not mixed, and were incapable of being mixed like the barilla, or like corn taken to a mill to grind. I express no judgment upon such cases; but I am of opinion that according to the English authorities, which I think we ought to follow, the plaintiff could not have been convicted of larceny upon the evidence in this case.
The language of the section of the Revised Statutes was supposed, by the prisoner's counsel, to imply that this case was considered by the legislature to be larceny. It seems to me that a careful consideration of it will lead to a contrary conclusion. If the conversion by a carrier of part of a quantity of goods intrusted to him to carry would be larceny without other circumstances, the only case for the legislature to provide for would have been the conversion of the whole. None of the circumlocution would have been needed if the law had been so understood. The section does indeed speak of "separating any of them from the others." This *Page 125 may refer to things mixed, like the barilla. The pig iron was neither attached together or mixed, and the term separating would not be strictly applicable. They probably lay scattered upon the deck as is usual with such cargo, and taking a portion of the bars would not be a separating of them from the rest, any otherwise than from all the other property on board the boat.
I think the Supreme Court decided correctly in holding that the plaintiff in error could not be convicted except under a special indictment, like the one under which the last trial took place, and that the judgment should be affirmed.
JOHNSON, Ch. J., expressed no opinion.
Judgment reversed and the discharge of the prisoner ordered.