The distinction between a mere trespass and a forcible trespass on the one side, and simple larceny and robbery on the other, when the two, like light and shade run into each other, is hard to draw, and it requires clear discrimination to mark the dividing fine. I attempted, with the aid of Mr. Justice Poster, whose prominence as a criminal lawyer all admit, to mark the line in State v. Sowls, Phil. 151. It seems I was not fortunate enough to make my meaning clear, and I will u run and mark the line over again.”
*273If one takes the property of another, it is a mere trespass, for which an action lies: if mamuforti, the owner being present, it is a forcible trespass, for which an action lies, and also an indictment. If the taking he with a felonious intent, the act is larceny, either stealing, or robbery. So it turns upon the felonious intent; and the question is, what is meant by a felonious intent.
A prominent feature of it is, that the act he done in a way showing an intention to “ evade the law,” that is, not to let the owner know who took his property, and, against whom to bring his action; or who is to he indicted. If one takes property slyly, — by stealth — he steals: if he takes the property forcibly, under a mask, or with his fáce blacked as a disguise, or when he supposes the owner .’cannot identify him, as on the high-way, he commits robbery. So the prominent feature of a felonious intent is “an attempt to evade justice.” Such is the doctrine laid down by Foster as the common law, and such I know was the opinion of Chief Justice Henderson; whose power of reflection exceeded that of any man who ever had a seat on this bench, unless Judge Haywood be considered his equal in this respect. Judge Henderson used to ask: “ What is the difference between trespass and larceny? Beply:“A felonious intent.” “What is meant by a ;felonious intent ?” Eeply: “ An intent to conceal from the owner, who took his property, so that he may not know against whom to bring his action, or, whom to indict.” If a man takes my property openly and above board, I know whom to sue, and, if force is used, I can also have him indicted. So, such acts are not apt to occur, and the . public needs no special protection against them: Beccaria on Crimes. But where there is an attempt to do the thing slyly, or do it by force under circumstances of disguise, the community needs protection, and these acts are treated as being done with a felonious intent, and are punished accordingly: Id.
Again, when the act is done under color of right, or some seeming excuse for it, provided there be no fraudulent con*274cealment of the person doing the act, there is no felonious intent, and the act is not larceny: Regina v. Holloway, 61 E. C. L. 941.
In our case there was no attempt to conceal; the party knew who had his note, and against whom to bring his action r so there was no effort to “evade the law,” and there was some color of right, or seeming excuse for the act. The defendant alleged that the title to the land for which he had executed the note, was not good, for that it was subject'to a dower right, and, being dissatisfied with this state of things, he resorted to a trick to get hold of the note, for the purpose of cancelling it. This is the “ head and front of his offending:” his conduct was reprehensible, but it does not make him guilty of stealing.
" There is no one feature of a felonious .taking in the face of this transaction; ’ho attempt to “evade the laws;” and there is a seeming excuse for the artifice by which he got possession of the note. The distinction is between artifice to to get possession of the note, and artifice to conceal the fact that he had gotten it in possession. This would have made the taking felonious. But no concealment was attempted in regard to his having gotten the note into his possession. It is strange to me that gentlemen af legal science cannot -see the distinction between artifice to get hold of the note, and artifice to conceal the fact of his having gotten it into possession. On this distinction, new, it is true, in our cases, rests the question of taking with a felonious intent.
This case has no feature of larceny. It is the trick of an '.ill-advised man, who, thinking he had been imposed on in a trade, thought, if he could get hold of the note and cancel it, he would he thereby relieved from all further obligation. The law does not visit rare instances of this kind, with the infamy of the crime of larceny. Indeed, if this act has any feature of larceny, it would fall under the head of robbery, and not of stealing; so the man was convicted upon the wrong count. This shows that the distinction between *275trespass and larceny was not understood either by the Judge or the jury. If one finds a shawl that has been lost, and tempted by the opportunity^ conceals the fact, and appropriates’ to his own use, it is not stealing, the hooks say, because there was no wrongful taking: See Roper’s Case, 3 Dev. 473; hut the reason of the law goes deeper into human nature. It is because of the temptation, to which many a man may yield who would not steal. “Lead us not into temptation,” is a prayer enj oined by One who knew the frailty of human nature. The defendant was held not guilty of stealing, becmise of the temptation, to which many a man may yield, who would not steal, and because such occasions are rare, and society needs no special protection against thernrj 1A. man finds the. pocket-book of a stranger; after several years, the owner not appearing, the man uses the money; the owner then appears; the man denies all about it; the facts are proved: The man ' is not guilty of stealing; the books say, because the taking was not wrongful; but the philosophy of the law is, because such cases rarely occur, and the man was “ led into temptation.”
In Rex v. Webb and Moyle, 1 W. C. C. 4 31, it is held that “ it is not larceny for miners to bring ore to the surface, and, when paid by the owner according to the quantity produced, to remove from the heaps of other miners ore produced by them, and add it to their own, in order to increase their wages, the ore still remaining in the possession of the owners.” This case was put upon ground that the owners are not deprived of their property, and as between the miners, the fraud is one not of frequent occurrence, and which may be easily guarded against; so the public needs no special protection against the offenee.J
We are satisfied the facts do not make out a case of stealing, or of robbery. There is error. This will certified.