NOTES OF RECENT CASES then remain passive and allow the would-be criminal to perpetrate the larceny as to every essential part of such offense, without sacrificing the element of trespass or non-consent; but if one, ostensibly acting as an accomplice, but really for the owner of the property for the purpose of entrapping the would-be criminal, does acts amounting to the constituents of the crime of larceny, although the accused concurred in and supposed he prompted the act, he is not guilty of larceny. Where an owner stands by and permits the taking, for the purpose of detecting and punishing the thief, the taking is none the less larceny. Rex v. Eggington, 2 Leach C. C. 913; State v. Adams, 115 N. C. 775, 20 S. E. 722. This is true even if the owner takes steps to facilitate the taking. Rex v. Williams, 1 Car. & K. 195; Connor v. State, 24 Tex. App. 245, 6 S. W. 138. The fact that a detective employed by the owner acts with the thief does not prevent the taking from being theft. Reg. v. Gill, 1 Dears. C. C. 289; Johnson v. State, 3 Tex. App. 590; People v. Mills, 178 N. Y. 274, 70 N. E. 786; State v. Hayes, 105 Mo. 76, 16 S. W. 514. On the other hand, if the solicitation to take comes originally from the owner the taking is by consent and therefore not larceny. Connor v. People, 18 Col. 373, 33 P. 459; Love v. People, 160 Ill. 501, 43 N. E. 710; McAdams v. State, 8 Lea 456. And if the pretended accomplice takes the goods himself and the defendant afterwards receives them there is no larceny. Reg. v. Lawrance, 4 Cox C. C. 440; Williams v. State, 55 Ga. 391; People v. McCord, 76 Mich. 200, 42 N. W. 1106. The recent decision falls within the latter class. The pretended accomplice caused the goods to be placed at the place where delivery was made and caused the servant who had charge of the delivery of goods to permit the defendant to take them. J. H. B. One of the points raised by this case is a delicate and interesting one. The general principle is, as the court points out, clear, viz., that to constitute a larceny there must be a taking without the consent of the one having possession, and if this consent is given, either expressly or impliedly, there is no larceny. A common form of case is where A, either directly or by an agent, solicits B to steal property in A's possession. This has been repeatedly held to be no larceny for the reason that both common sense and public policy forbid that a man should in the same breath solicit another to take his property and deny that he consented thereto. Connor v. P., 18 Col. 373, 33 Pac. 159; S. v. Waghalter, 177 Mo. 676, 76 S. W. XO28; P. v. Collins, 53 Cal. 185; Love v. P., 160 Ill. 501, 43 N. E. 710. And if the taking is solicited
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by the owner or his agent it would seem immaterial that the exact method thereof or modifications of the proposed scheme emanated from the taker, so long as the original impulse may fairly be said to be traceable to the owner. Such were apparently the facts in the present case and the decision may have been and it would seem was, in part, rested on the ground that the defendant had abandoned his original criminal intent and that the moving impulse for the crime that actually was committed was due to the company. The court says (109 N. W. 1040), " the owner of the property . . . did not suggest the plan for committing the offense of larceny, which was finally adopted, but the evidence shows conclusively that by the consent or direction of the packing company, through words or other wise, he (its agent) suggested the commission of such an offense and invited from the accused plans to that end." The case, however, also raises and considers a more doubtful question, namely, supposing the proposed theft to originate entirely with the defendant whether the acts of the company amounted to a consent to the taking so as to make it not larceny. These acts were two: first, the fact that the company's agent agreed that the meat should be put on a platform which was the only place to which the defendant had access, which was done; second, the fact that the em ployee in charge of the platform was instructed by the company that the defendant should be allowed to take it. These acts did indeed go far to make the way easy for the defendant, but if it was for a crime that he originated it is hard to see the difference between this and instructing the watch man not to resist or not putting up a bar across a door, or pretending to be drunk in order to afford the thief greater opportunity, in none of which cases has the taking been held to be not felonious. Rex v. Eggington, 2 East P. C. 666; S. v. Anone, 2 N. & McC. 27; S. v. Stickney, 53 Kan. 308, 36 Pac. 714; P. v. Hanselman, 76 Cal. 460, 18 Pac. 425; McAdams v. S. 76 Tenn. 456. The court, however, would apparently be inclined to hold that the acts in the case before it might in themselves be suffi cient to raise a sufficient consent to the taking to make it not larcenous (109 N. W. 1039). This would seem open to serious question. There is of course no consent in fact, and the public policy which underlies the line of cases already discussed and which is referred to in Love v. P. (supra), quoted by the court with approbation, has no application where the original impulse for the crime originates with the defendant. H. A. B. DEFINITION. (Flat.) N. J. — In our day of large and over-crowded cities it may be interest ing to know what a flat or a flat-house is, and
