Rodmaít, J.
(dissentimte.) The following exceptions •are taken to the conviction of the defendant:
*2761. The taking was open, and not sly or clandestine, and be did not attempt to flee justice; therefore the taking was a, •trespass only, and not larceny. The Judge told the jury that “if the defendant went to the prosecutor’s house with a. felonious purpose to get possession of the note, and resorted to a fraudulent trick or device to effect that purpose, he would he guilty .of larceny.” So the question of felonious, intent was left to the jury upon the evidence, and found by them. If therefore an open manner of taking be only a circumstance tending, as matter of evidence, to negative a felonious intent, and subject to be out-weighed by other circumstances in evidence, it seems to me there can be no exception to the instructions on this point. If however, an open taking is in law conclusive of the non-existence of the felonious intent, and a sly and clandestine manner of taking be always a necessary ingredient in the offence of larceny, the instructions were erroneous. Bút I cannot think that this last proposition can be sustained. Lord Hale says: “If A takes away the goods of B openly, before him or other persons (otherwise than by apparent robbery) this carries with it an evidence of only a trespass, because done openly in the presence of the owner, or other persons that are known to the owner.” The instances he gives, are of persons taking things under circumstances from which the permission of the owner might be not unreasonably, supposed, and after using them a.while, returning them; and he.adds : “But in cases of larceny the variety of circumstances is so great, and the complications- thereof so mingled, that it is impossible to prescribe all the circumstances evidencing a felonious intent, or the contrary, but the same must be left to the due and attentive consideration of the Judge and jury; wherein the best rule is, in duliis, rather to incline to acquittal than conviction.” From which, it seems to me that Lord Hale did not think an open manner of taking, inconsistent with larceny, but only a circumstance from which the jury might infer the absence of a felonious intent. The following is the defi*277nition of a felonious taMngby the English Or. Law Com., cited in Roscoe Or. Ev. 5 69: “The taking and carrying away are felonious, when the goods are taken against the will of the owner, either in his absence or in a clandestine manner, or where the possession is obtained either by force or surprise, or by any trick, device, or fraudulent expedient, the owner not voluntarily parting with his entire interest in the goods; and when the taker intends, in any such case, fraudulently to deprive the owner of the entire interest in property against his will.”
Vaughn’s case, 10 Grattan, 758, resembles this as closely as a case can, and is a positive authority against the prisoner. A number of cases too numerous to be particularly cited, may be found referred to in Roscoe, Cr. Ev., 572-580, in which the taking was as open as in this case, but the parties were held guilty of larceny; See especially R. v. Aikles, 2 East, P. C., 675; R. v. Wilkins, 2 E., 673; R. v. Williams, 6 C. & P.; 390, (25 E. C. L.)
It may be asked, if an open manner of taking be consistent with larceny, wherein does larceny differ from a forcible trespass. The answer is; — in larceny there must be an as-portation, and anintent to deprive the owner of his property, with a view to some advantage to the taker; whereas an indictable trespass may consist in a forcible injury to the goods without taking them away, and from some other motive than, advantage to the trespasser.
2. The taking was under a claim of right. It is of course admitted that if the taking was under a Iona fide claim of right, it would not be felonious, and consequently, not larceny : Roscoe Cr. Ev., 592. But if the claim were a mere pretence, not really¡ believed in, it would have no such effect: Roscoe, ul). sup. It will be sufficient to say of this point, that it does not appear to have been taken on the trial, or that any special instruction upon it was requested. It has been repeatedly held that it is not error in a Judge to omit to give particular instructions, unless prayed for: State v. O’Neal, *2787 Ire., 251; Arey v. Simpson, 12 Ire., 34. I do not see any positive error in the instruction given.
3. Inasmuch as the prisoner was one of the obligors in the-note, he could not be guilty of larceny in taking it.
I do not see any weight in this, but it is hilly answered in Vaughn’s case, above cited.
4. That the taking was by force, and was therefore robbery, not larceny.
But the jury have negatived the force; and if they had not, it seems to me that it would not lie in the prisoner’s mouth to say, he took by force, and being guilty of robbery, could not be convicted of larceny, any more than, if indicted for petit larceny, in stealing under the value of 12 d., he could say the goods were of greater value, and thus escape conviction of the inferior offence: Hale, P. C., 530. On an indictment for grand larceny, the prisoner may be convicted of petit larceny: Ilidj; and, on an indictment for robbery, of larceny, since every robbery includes a larceny: Harman's case, Hale, P. C., 534.
Eor these reasons I think the judgment should be affirmed..
Per Curiam. Judgment reversed.