
    * Commonwealth versus Joel Brown.
    If one, to whom a wagon load of goods, consisting of several packages, is delivered to be transported from one place to another, fraudulently take away one of the packages, such taking is felony.
    The defendant was indicted of larceny in stealing two pieces of cloth, alleged to be the property of one Willis.
    
    Upon the trial before Sedgwick, J., at the last April term of the Court in this county, it appeared that the goods charged to have been stolen were the property of Messrs. Bridge; that they, with other goods, constituting a wagon load, were delivered by the owners to Willis, a common carrier, to be transported from Boston to Sudbury; that Willis, in driving his team, met with a hurt on the road, which disabled him to proceed farther, and he employed the defendant to drive the load to Sudbury, which he accordingly did; that the goods mentioned in the indictment were contained in a package, and placed at the bottom of the wagon, between a cask containing spirituous liquor and another package; that all the load was safely driven and delivered at Sudbury, except the package containing those goods, which package without breaking it, was taken by the defendant.
    The direction of the judge to the jury was, that if they believed the goods were taken by the defendant fraudulently, either before or after the load was delivered at Sudbury, the taking was theft.
    The jury returned a verdict against the defendant, who thereupon moved for a new trial as for the misdirection of the judge, and the cause was continued to this term for the decision of the Court upon that motion.
    
      Bigelow, of counsel for the prisoner,
    cited 2 East’s C. L. 695, 6, 7, in which the opinion in Kelynge, 24, is controverted. He also read 1 Hawk. P. C. c. 33, § 3, and 5, and contended that when goods come to the possession of a person by the delivery of the owner, the embezzlement of an entire package is not larceny, although it is otherwise where a package is opened, and a part of its contents taken out with intent to steal.
    Upon the Chief Justice’s desiring Bigelow to consider the differ ence between taking one of several packages, and breaking up one package and taking away a part, Bigelow said he [ * 581 ] * could not contend that there was any difference between the two acts considered in a moral view. But, technically considered, (at least in the case of a carrier,) the crime consisted in breaking the package, and having the possession in a different plight and manner from those in which they were at the time of the delivery. For, in this case, as Hawlcins observes, the possession of the part taken out of the package is not only gained by wrong, but is obtained basely and clandestinely, in hopes to prevent its being discovered at all, or fixed upon any one if discovered.
    
      Bidwell, Attorney-General.
    
    This motion is not an application to the discretion of the Court founded on any circumstances favorable to the defendant, but claimed as a matter of right arising out of a rule of law purely technical, which the defendant’s counsel supposes to have been misstated by the judge. As there is no equity in his case, he must bring himself strictly within the rule, of which he claims the benefit.
    The distinction contended for appears to be merely artificial. East and some other modern writers on crown law argue that the reason of it is not very obvious. Kelynge, indeed, understood the principle to extend no farther than this, that the breaking of the package is a circumstance from which it may be inferred that the possession was originally obtained by the bailee fraudulently, and, therefore, is void, ab initia, upon the ground that, notwithstanding an actual delivery acquired by fraud, the legal possession still remains in the owner. But Hale and other authorities in general have gone farther, and they hold that by the breaking of the package, and separation of the goods, they are put into a state different from that in which they were bailed, and that, thereupon, without regard to the intent with which the possession was first obtained, such an alteration of their condition, effected by the bailee, without the consent of the owner, terminates the bailment, as to any protection of the bailee from the consequences of an embezzlement. Accordingly his taking them in that state, for the purpose of converting them to his own use, is a felonious taking, within the definition of larceny.
    But a bailment is essentially different from a mere charge, such as a servant has of his master’s goods, for an embez[*582] zlement *by the servant in such case, is larceny, 
      notwithstanding his charge of the goods. In the case at bar, Willis was the bailee, and the defendant was merely his servant, requested by him to drive the wagon to Sudbury. He drove the load as requested, but fraudulently took out of it this package of cloth, which had been placed between two other parcels.
    
      Willis received the goods in the character of a common carrier, subject to the responsibilities, and entitled to the privileges, of such a bailment. Brown was merely his driver or servant, whose custody of the goods was not a bailment, but a mere charge; and his taking of them was, therefore, felonious.
    But if he is to be considered in the character of a bailee of the goods, they were delivered to him as one entire mass, already packed and formed into a load, to be driven m that form ; and not, as several parcels, to be transported in such manner and by such means as he should choose. He had no possession of them but as a load. Within the principle of the law, the load was the entire package; and by separating this package of cloth, and taking it out of the load, he broke the package, and so changed the state and condition of the goods, that the bailment, if there were any, was thereby terminated, as to the privilege of the bailee; and his taking of the cloth under those circumstances was felonious, in the sense of the indictment.
    
      Ward, in reply.
    It is not necessary that the defendant should be a driver of a public stage or wagon, in order to make him a common carrier. [Parsons, C. J. But it is necessary that he should carry for hire. Did the defendant carry these goods for hire, or would he have been answerable for them if they had been stolen ?] He might maintain an action for driving the team, and would have been liable to answer for the goods.
    As to the difference between breaking a package, and taking an entire one, the law certainly makes the distinction, whether the reason of it can now be found or not. Hawkins, however, gives a reason, viz., that taking a part, is to get possession clandestinely, and without discovery; and the possession * is different [*583] from that intended by the owner. The examples he gives of breaking packages by a miller, carrier, weaver, &c., are very analogous to the present case. And in the case of corn in bags, the detection would be more difficult, it being all the same article.
    
      
       2 East's C. L 666, 682.
    
   The court [absente Sewall, J.] afterwards delivered their opinions seriatim.

Parker, J.

The motion for a new trial is founded on a supposition that the offence committed does not amount to larceny, because the defendant was employed to carry the goods, and instead of breaking a package, and taking out a part, which it is admitted would have been larceny, he took the whole package. And it has been argued by his counsel that, according to the English decisions, it does not amount to a larceny, because there was no original felonious taking. This seems a very subtile distinction, which makes the fraudulent taking of the whole a less crime than the taking of a part. The only reason for the distinction, perhaps, is, that the original taking is not considered as felonious ; for there is certainly no moral difference.

I am of opinion that, although no particular package was broken, the taking one of several parcels or bundles is a severance of the property committed to his custody, without the consent of the owner. The defendant was not a common carrier. He committed the act clandestinely and fraudulently, and his intent must have been felonious. I think he cannot set up this nice distinction, to protect himself from the consequences of a very criminal act; and that a new trial ought not. to be granted.

Sedgwick, J.

This case presents to our consideration two questions. 1. Were the goods, a part of which are charged in the indictment to have been stolen by the defendant, so delivered to him, that he is, in relation to them, to be considered in the character of a carrier, or ought he to be considered, in that relation, as merely the servant of Willis 1

2. Supposing the defendant is to be considered as a carrier, and supposing, also, that the goods were fraudulently taken by him, before the load was delivered at Bridge’s, was such taking theft ?

[ * 584 ] * As to the first of these questions, it is not perhaps very important to enter into a discussion of, or to decide it. At the trial, I inclined very strongly to the opinion that Brown was to be considered merely as a servant, and not as a carrier. And I will now only add that, from the arguments at the bar, I have not perceived any sufficient reason for inclining to a different opinion.

As to the second question above stated, the principle of law, that, if goods delivered to a carrier, to he transported to a certain place, are by him converted to his own use, anima furandi, before they arrive at the place of destination, such conversion is not theft, has been too long established, and is too well known and settled, to be called in question. I admit that it must be now holden to be law, although, to my apprehension, it is a conclusion resulting from artificial reasoning merely; for such a conversion is as much an invasion of the right of property, and of greater moral turpitude, than if the original possession had been obtained without the consent of the owner. It is more flagitious, because it is accompanied by a violation of confidence. Every indictment for larceny, however, must charge a felonious taking, which includes a trespass ; and therefore it is said, if there be no trespass in taking, — as there is not where goods are delivered by an owner to a carrier,—there can be no felony in carrying them away ; yet those who have the possession of goods by the delivery of the owner, may be guilty of felony by taking away part thereof, with intent to steal it. This separation of a part is considered as such a determination of the privity of contract, as to constitute it a felonious taking.

Now, I can conceive no good reason why such taking a part should be considered a larceny, while taking the whole, with the same wicked intention, should have a different construction. Such, however, I am bound to consider as a well-founded distinction, and the defendant is entitled to the benefit of it, if the facts warrant its application in his favor.

* It is true that Hawkins illustrates the rule that [ * 585 ] those who have the possession of goods by the delivery of the owner, may be guilty of felony by taking away a part thereof with intent to steal it, by the instances of a carrier’s opening a package and taking out part of its contents; a weaver who has silk to work, or a miller who has corn to grind, taking out part thereof, with an intent to steal it—instances of a separation, it is said, of apart from a united mass of property. Hence it is attempted to be concluded that if several masses or packages are so delivered, and the whole of one of them taken, with the same intent, it is not theft. But there is nothing in the nature of the thing, or in the words, by which the principle is expressed by Hawkins, on which to ground such a distinction. For surely taking an entire package, being one of several, is at least as heinous an offence, as injurious to the owner, and as much a determination of the privity of contract, as taking part of the same package would have been. And East, after a full consideration of this subject, concludes that, in the case of a carrier, the crime consists in a separation of part of the goods delivered from the rest, with a felonious intent, though no package be broken.

tío far, then, we are bound to go upon authority; and here, I think, we must stop. Was Brown, then, to be considered as a car-tier, does his case come within the rule ? The goods, which were delivered to him by Willis, composed a cart load, consisting of a cask of spirituous liquor, and several packages of dry goods. The goods taken were in one entire package, placed in the middle of the load, and by him fraudulently taken and separated from the rest; and whether before or after the delivery of the other goods to Messrs. Bridge, in whom the general property of them was, was not in evidence; nor is that circumstance, in my opinion, material Whether before or after, the conviction I think was right.

Parsons, C. J.

The counsel for the defendant move for a new trial; and they have argued that he was a carrier, having [ * 586 ] the lawful possession of the goods until the load * was delivered at Sudbury, and that if he took the goods on the route, it was an unlawful conversion, and not a felony, because he did not open the package, and take part of the goods, but took the whole package.

Upon considering this case, I am of opinion, admitting the defendant to have been a common carrier, and thus to have had the lawful possession of the goods, yet all the goods in the wagon were delivered to him as one mass or body, and his taking away one of the packages was a separating a part from the whole, and thus was'determined the supposed privity of contract. For the contract with him was not to carry the several packages of which the load was composed, but to carry the load to Sudbury in the state in which it was delivered to him.

I have thus far considered the defendant as a common carrier, having a special property in, or a lawful possession of, the wagon load. But the defendant was not a common carrier; he was a mere servant to Willis, the carrier, to drive his team to Sudbury. And it would be extremely mischievous to have it understood that every driver of a team, employed by a common carrier, has a special property in the load, so that if he drives elsewhere than he was engaged to drive, and takes the whole load, he will be chargeable for an unlawful conversion only, and not for a felony. A new trial cannot be granted. 
      
       1 H. H. P. C. 504, 505, 506. — 1 Hawk. P. C.c. 33, § 3.—2 East’s C. L. 696, 697,698.
     
      
       1 Hawk. P. C. c. 33, § 5.
     
      
       2 East’s C. L. 698.
     
      
      
        [East, who is referred to in support of this general position, speaks only of a case where there has been a delivery of something, “ as one entire body or mass,’’ and a separation of a part of it from the rest.—Ed.]
     
      
      
        Kel. 35,81,82,
     
      
      
        [Commonwealth vs. James, 1 Pick. 375. and the authorities cited by the councel for the prisoner.—Ed]
     