Page:Harvard Law Review Volume 12.djvu/297

NOTES. 277 Constructive Grand Larceny. — Where property stolen consists of separate articles or has different owners, and where the act of asportation is separable, the question will often arise, when must the prosecution proceed for several larcenies, and when may it indict for a single lar- ceny. The issue becomes of practical importance when the several thefts are merely petty larcenies but the total theft would constitute grand lar- ceny. Such was the fact in two recent cases which illustrate both branches of the general problem. In one, several sheep of different owners were stolen at the same time. This theft was held by the Wyoming court to constitute a single offence of grand larceny. Ackerman v. State, 54 Pac. Rep. 288 (Wyo.). In the other case, the prosecutor, a mining company, had missed from its reduction works, at various times, small quantities of cyanide product. The defendant was later found with thirty pounds in his possession. The jury convicted him, upon an indictment, for grand larceny. Upon exceptions, the Nevada court sustained the verdict, taking the ground that where there is a continuing transaction several distinct asportations do not constitute different offences, and the de- fendant may be convicted upon the final asportation. State v. Man- dich, 54 Pac. Rep. 516 (Nev.). The fact that property stolen is of several articles or in separate owners is immaterial, and the decision to that effect by the Wyoming court is un- exceptionable. Courts have held otherwise, but, it seems, from mistaken views. U. S. V. Beerman, 5 Cranch C. C. 412. It is the entire offence against the State which the criminal law considers, without regard to the circumstance that various civil actions may arise from the same transac- tion. Wilson V. State, 45 Tex. 76. This is none the less true, although in theory a separate indictment might be found for each item. Reg. v. Bret- tel, C. & M. 609. But as a matter of policy, it is generally agreed that the prosecution should bring the whole affair before the court once for all, and that the one time shall be jeopardy of the whole. State v. Ingles, 2 Hayward, 4. It follows that any severalty in the property should be disregarded, and that the single test of the entirety of the offence should be the entirety of the act of asportation. Thus a single act of asportation seems to be recognized as the one requisite of a proper indictment for a single larceny, but the Nevada case cannot be supported without taking the further step of saying that several distinct takings may become a single act by construction. The courts indeed have never been over-precise in determining what will be considered a single transaction. So the leading English case holds that where the thief returned to steal in two minutes after the first theft, it was one " continuing transaction," but where he returned in half an hour the offences were separate. Reg. v. Birdseye, 4 C. & P. 386. This conces- sion has been carried to extremes in America. State v. Martin, 82 N. C. 672. If the present Nevada case represent the law, whenever a thief accumulates the spoils of his petty larcenies, it will be possible to con- solidate the offences under a single charge of grand larceny. Scarver v. State, 53 Miss. 407. But is not this theory of a continuing trans- action indefensible whenever there is in fact more than a single asporta- tion ? If before the last taking there was a time when a complete larceny had been committed, it seems impossible to add this to another larceny and find entirety in the whole criminal transaction. If in the present Nevada case the defendant had accumulated the cyanide with no intent to take possession, and then had taken it away at one time, such a spe-