Odger's English Common Law

346 LARCENY.
of the husband were taken with the consent or privity of the
wife, it was not larceny, unless the taker was the adulterer
of the woman. 1 And it is still the law that no criminal
proceedings can be taken by any husband against his wife,
while they are living together, concerning any property
claimed by him ;
nor, while they are living apart, as to any
act done by the wife while they were living together con-
cerning property claimed by the husband, unless such pro-
perty has been wrongfully taken by the wife when leaving
or deserting, or about to leave or desert, her husband.
A married woman can now enjoy separate property apart
from her husband, and can have separate possession of it, so
that he can steal it from her. But no criminal prosecution
can be instituted by any ;wife against her husband, while they
are living together, concerning any property claimed by her ;
nor, while they are living apart, as to any act done by the
husband while they were living together concerning property
claimed by the wife, unless such property has been wrongfully
taken by the husband when leaving or deserting, or about to
leave or desert, his wife. 2
IV.
The state of mind of the owner of the goods at the moment
of the alleged theft is important. The goods must be taken
out of the possession of the owner without his consent. If
he intends to part permanently with his property, the offence
of larceny is not committed. If he is not aware that he is
parting with the possession of the goods, there is, of course,
no consent. Again, consent obtained by threats or intimida-
tion, or by fraud, is no consent. 3 But if no fraud or artifice
has been practised on the owner, and yet he consciously and
voluntarily hands over his property to the prisoner, there can
be no larceny; it is "a receipt and not a taking." 4 And
i S. v. Flatman (1880), 14 Cox, 396.
2 Married Women's Property Act, 1882, ss. 12, 16 ; Larceny Act, 1916, s. 36. As to
the form of the indictment, see R. v. James and Johnson, [1902] 1 K. B. 540.
» B. t. McGrath (1869), L. B. 1 C. C. B. 205, followed in B. v. Lovell (1881), 8
Q. B. D. 185.
i Coke, 3 Inst. 107 ; and see B. v. Mucklow (1827), 1 Moo. C. O. 160.