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be guilty of felony, and punishable with penal servitude to the extent of seven years, or imprisonment as above specified (p). And that whosoever shall be found by night, armed with any dangerous or offensive weapon or instrument, with intent to break or enter any building, and to commit felony therein : or shall be found by night in the possession, without lawful excuse, of any house
, breaking implement; or with his face blackened or disguised, with intent to commit any felony: or shall be found by night in any building, with intent to commit a felony therein :-shall be guilty of a misdemeanor, punishable with penal servitude for five years, or imprisonment (with or without hard labour) not exceeding two years (9): and, in case of a second conviction, or if convicted after a previous conviction for felony, he is liable either to such imprisonment, or to penal servitude to the extent of ten years (r).
III. Sacrilege and housebreaking by day are offences which are now regulated by 24 & 25 Vict. c. 96,—by which it is provided, that the same penal consequences as are provided by that Act with respect to burglary(s), shall attach to whomsoever shall break and enter any church, chapel, meeting-house or other place of divine worship, and commit any felony therein,-or, being in such place, shall commit any felony therein, and break out of the same(t). This constitutes the crime of sacrilege, and is breaking into the Ilouse of God. It is consequently more penal than to break into other buildings; for where the felony committed, is after a breaking and entry into or out
(P) 24 & 25 Vict. c. 96, s. 54. (1) See 27 & 28 Vict. c. 47.
(r) Sects. 58, 59, re-enacting 14 & 15 Vict. c. 19, ss. 1 and 2. As to the construction of which, see R. v. Oldham, 21 L. J. (M. C.) 134; R. r. Bailey, 1 Dearsley's C. C. R. 249. By stat. 5 Geo. 4, c. 33, s. 4, it is
also provided, that persons in pos-
(8) Vide sup. p. 110.
of any dwelling-house, school-house, shop, warehouse or counting-house,—or into or out of any building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof (u),—the extreme limit of the term of penal servitude which may be inflicted is fourteen years, instead of for life (x).
Moreover it is also a felony, and punishable either by imprisonment as in the previous cases, or by penal servitude for seven or not less than five years, to break and enter any dwelling-house, church, chapel, meetinghouse or other place of divine worship, or any building within the curtilage, or any school-house, shop, warehouse or counting-house, with intent to commit any felony therein, although such felony shall not in fact have been effected (y).
Having now considered offences against houses, we proceed, in the second place, to consider offences against property in general.
I. Larceny (by contraction for latrociny, latrocinium), is the unlawful taking and carrying away of things personal, with intent to deprive the right owner of the same (z); and it is either simple, or accompanied with circumstances of aggravation(a). Let us proceed to ex
(11) No building, although within may be given on an indictment the curtilage of a dwelling-house charging the actual commission of and occupied therewith, is to be a felony. deemed part thereof for any of the (z) The definition of Blackstone purposes of the 24 & 25 Vict. c. 96, (vol. iv. p. 229) is “the felonious unless there be a communication taking and carrying away of the either immediate or by means of a personal goods of another.” But covered and enclosed passage (sect. this leaves it to be inquired, what 63).
kind of taking and carrying away (x) Sects. 55, 56.
is considered as felonious. (y) Sect. 57; 27 & 28 Vict. c. 47. (a) Larceny, accompanied with See The Queen v. McPherson, 26 circumstances of aggravation, is deL.J. (N. S.) M. C. 134. By 14 & 15 scribed in the books as being comVict. c. 100, s. 9, a verdict of guilty pound, mixed or complicated, as of an attempt to commit felony to which, vide post, p. 123.
amine into the nature of this offence (which is otherwise termed theft), as laid down in this definition.
In the first place it must be an unlawful taking, which implies that the goods must pass from the possession of the right owner(V), and without his consent (c): and therefore where there is no change of possession, or a change of it by consent, or a change from the possession of a person without title to that of the right owner, there can be no larceny (d). And, as the taking must be without the consent of the owner, so, as the general rule, no delivery of the goods from the owner to the offender upon trust, can ground a larceny :-as if A. lends B. a horse, and he rides away with him (e). Yet if the delivery be obtained from the owner by a person having animus furandi at the time, and who afterwards unlawfully appropriates the goods in pursuance of that intent, it is larceny; as if, in the case above supposed, B. solicited the loan of the horse, with intent to steal him (f). But in such cases, the bare failure to redeliver to the owner shall not of necessity be intended to arise from a felonious design; since that may happen from a variety of other accidents. On the other hand, one who has received goods by delivery from the owner, under such circumstances as fail to divest him of the legal possession, will be guilty of larceny if he appropriates them to himself(y); as when a servant makes away with his master's plate (h), or the guest at an inn makes away with the articles of which he has the temporary use (i). And the principle of the common law as
() 1 Hale, P. C. 513. (c) 4 BI. Com. 230.
(d) But if a person has temporary title against the permanent owner, the latter may be guilty of larceny in taking them. (R. v. Wilkinson, R. & R. C. C. 470; 4 Bl. Com. 231.) (e) Bl. Com., ubi sup. VOL. IV.
(f) Major Semple's case, 2 Leach, 469, 470. See Queen v. Poyser, 20 L. J. (M. C.) 191.
(9) Reed's case, 2 Dearsley's C. C. R. 168, 257.
(h) Christian's Blackstone, vol. iv. p. 230 (note); 1 Hale, P. C. 506.
(i) Hawk. P. C. b. 1, c. 33, s. 6; 4 B1. Com. 231.
to the necessity of the owner not consenting to the original taking, in order to support a charge of larceny, has been, in some instances, qualified by special enactments of the legislature. Thus, whoever shall steal any chattel or fixture let to be used by him in any house or lodging, shall be guilty of felony, and may be punished (if the value of what is stolen shall exceed five pounds) by penal servitude for seven years or imprisonment for two (k). And it has also been provided that the bailee of any chattel, money or valuable security, who shall fraudulently take or convert the same to his own use, or the use of any person other than the owner thereof, shall be guilty of larceny,although he shall not break bulk or otherwise determine the bailment; which was, at common law, a condition precedent to the commission of larceny by a bailee (2).
[Again, there must not only be a taking but a carrying away. Cepit et asportavit was the old law Latin. But a bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation.] Thus it is larceny, if a man leading another's horse out of a close, be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down stairs (m); or, if a thief, intending to steal plate, takes it out of a chest, and lays it down upon the floor, but is surprised before he can make his escape with his spoil (n).
[Further, the taking and carrying away must be of personal goods. Lands, tenements and hereditaments, either corporeal or incorporeal, cannot in their nature be
(k) 24 & 25 Vict. c. 96, s. 74. If the value be less than 5l, the punishment is imprisonment only, to the extent of two years. In either case, to the punishment of imprison. ment, hard labour with solitary confinement and whipping (if the offender be a male under the age of sixteen) may be added.
(1) See 24 & 25 Vict. c. 96, s. 3, re-enacting 20 & 21 Vict. c. 54, s. 4, which is repealed by 24 & 25 Vict.
As to the punishment of larceny in general, vide post, p. 120.
(m) 3 Inst. 108, 109.
(n) As to the application of this doctrine, see White's case, 1 Dearsley's C. C. R. 203.
(taken and carried away. And of things likewise that adhere to the freehold,—as corn, grass, trees and the like, --no larceny could be committed by the rules of the common law, but the severance of them was merely a trespass; which depended on a subtlety, in the legal notions of our ancestors. For such things were parcel of the real estate: and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immoveable. And if they were severed by violence, so as to be changed into moveables, and at the same time, by one and the same continued act, carried off by the person who severed them; they could never be said to be taken from the proprietor in this their newly-acquired state of mobility, (which is essential to the nature of larceny,) being never, as such, in the actual or constructive possession of any one but him who committed the trespass. He could not, in strictness, be said to have taken what at that time were the personal goods of another; since the very act of taking, was what turned them into personal goods. But if the thief severed them at one time, whereby the trespass was completed, and they were converted into personal chattels in the constructive possession of him on whose soil they were left or laid, and he came again at another time, when they were so turned into personalty, and took them away, it was larceny at the common law; and so it was, if the owner, or any one else, severed them and they were afterwards removed (o). So, upon nearly the same principle, the stealing of writings relating to real estate was at common law no felony, but a trespass (P); because they concerned the land,—or, according to our technical language, savour of the realty,—and are considered as part of it by the law: so that they come to the heir or devisee together with the land which they concern. Bonds, bills and notes, (which concern mere choses in action,) were also, at the (0) 3 Inst. 109; 1 Hale, P. C. (P) Hale, ubi sup.; R. v. West
beer, Stra. 1137.