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58 L. Q. Rev. 340 (1942)
Larceny and Trespass

handle is hein.journals/lqr58 and id is 348 raw text is: LARCENY AND TRESPASS. TnE CASE OF RILEY. T HE natural reluctance of judges to allow an obviously dishonest man to escape criminal punishment has often led them to proclaim as established principles of law, doctrines which were in fact not only quite new, but which have sometimes had the unfortunate result of rendering the law itself more indistinct and uncertain.' An interesting illustration of such judicial innovations is to be found in the case of Riley.2 A doctrine enunciated in this case by the Court for Crown Cases Reserved seems to have been accepted by the Courts and the writers ever since without question, but it is the purpose of the present article to suggest that the case was wrongly decided, and that a ratio decidendi as stated in the judgment of the Court rested on inadequate authority and was logically unsound. Riley, early on a thick and rainy morning, drove his flock, twenty-nine lambs, from a field in which he had been allowed to put them overnight. He did not notice that a lamb belonging to the prosecutor had joined his flock, until he had sold the flock to a purchaser, who then pointed out that there was one extra. Riley promptly sold that one also to him. Riley was indicted at quarter sessions for larceny of the lamb, and con- victed, but the case was remitted to the Court for Crown Cases Reserved. In order to simplify the examination of the judgments in this case it is necessary to make some remarks on the common law principles of larceny, although space does not permit a full development of the considerations upon which they are based. From the ancient definitions 3 it is clear that very early our common law doctrine recognized that in larceny criminal liability depended upon two elements, a physical element and a mental element. The physical element was made up of two ingredients, (a) the simple physical act of seizing the thing (cepit) and taking it away (asportavit) and (b) a negative 1 See the remarks of H.M. Commissioners, Reports, 1839, Vol. XIX, p. xiv. 2 (1853) Dearsly 149; 22 L. J. M. C. 48. 3 Glanvil, lib. 10, cap. 13; Bracton, f. 150b; Coke, Inst. I, c. 47, p. 107. 4 Pollock & Maitland, History of English Law, II 498. 'There can, we think; be little doubt that the taking and carrying away upon which our later law insists, had been from the very first the very core of the English law of Theft.' Cf. the American case, Harrison v. People (1872) 10 Am. Rep. 517.

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