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OFFENCES AGAINST THIE HABITATIONS OF INDIVIDUALS.

a capital felony by statute.

Thus much for the nature of burglary; which is a felony at common law, but within the benefit of clergy.

The statutes, however, of 1 Edw. VI. c. 12, and 18 Eliz. c. 7, take away clergy from the principals, and that of 3 and 4 W. and M. c. 9. from all abettors and accessaries before the fact (p) (12). And, in like manner, the laws of Athens, which punished no simple theft with death, made burglary a capital crime (9).

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. P. C, c. 17, § 33: but it must be de- not to commit a felony by killing the scribed correctly, and any variance on animal, but only a trespass to prevent that subject between the indictment and his running ; Dobb's case, 2 East, P. C. the evidence will be fatal. Thus, where 513; see also Rer v. Knight, id. 510; one was indicted for burglary in a 1 Hale, P. C. 561 ; l' Hawk. P. c. stable, with intent to destroy a gelding, 136 ; and the cases there collected. and it appeared that the gelding was (12) All repealed by 7 & 8 Geo. IV. to have run for a wager, and the pri- c. 27 ; vide ante, 227, note (10). soner maimed him to prevent his run- (13) This provision is revised and ning, of which maiming he died; it was re-enacted by S 33 of 33 Geo. III. held that the indictment could not be c, 17, which by § 34 is made a public supported : for the prisoner's intent was act.

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CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

chief, and for

The next and last species of offences against private sub- Ofences affect. jects, are such as more immediately affect their property. Of of individuals, which there are two, which are attended with a breach of the malicious mispeace; larceny, and malicious mischief: and one, that is gery. equally injurious to the rights of property, but attended with no act of violence; which is the crime of forgery. Of these three in their order.

I. Larceny, or theft, by contraction for latrociny, latro- I. Larceny is cinium, is distinguished by the law into two sorts; the one simple, and

compound. called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person (1).

(1) By statute 7 & 8 Geo. IV. c. 29, transportation for seven years, or im$ 2, it is enacted, “ That the distinction prisonment not exceeding two years ; between grand and petty larceny shall and, if a male, to one, two or three be abolished, and every larceny, what public whippings; and by $ 4, where ever be the value of the property stolen, the sentence is imprisonment, the courts shall be deemed to of the same na- have a discretionary power to award ture, and shall be subject to the same hard labour or solitary confinement in incidents in all respects as grand lar- addition. This observation has been ceny was before the commencement of introduced here that the reader may this act; and every court, whose power observe, how far the present provisions as to the trial of larceny, was before of the law vary from the text, in his the commencement of this act limited progress through this important chapter, to petty larceny, shall have power to try and to remind him that the subtle disevery case of larceny, the punishment of tinctions between grand and petty larwhich cannot exceed the punishment ceny are now entirely abolished. hereinafter mentioned for simple lar- By $ 61, in every felony punishable ceny, and also to try all accessaries to under this act, every principal in the such larceny."

second degree, and every accessary beBy $ 3, every person convicted of fore the fact, shall be punishable with simple larceny, or of any felony thereby death, or otherwise, in the same manmade punishable like simple larceny, ner as the principal in the first degree; shall (except in the cases thereinafter and every accessary after the fact, (exotherwise provided for) be liable to cept only a receiver of stolen property,) VOL. IV.

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Simple larceny is cither grand or

to the value of the property stolen.

And, first, of simple larceny: which, when it is the stealing petit, according of goods above the value of twelve pence, is called grand

larceny; when of goods to that value, or under, is petit larceny: offences, which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny then is," the felonious taking, and carrying [*230] away, of the personal goods of another.” This *offence cer

tainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seized to his present use, seems to be the only offence of this kind incident to such a state. But unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen (a), any violation of that property is subject to be punished by the laws of society: though how far that punishment shall extend, is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition.

1. It must be a taking (2): This implies the consent of be a taking

(a) See vol. II. page 8, &c.

1. There must

shall on conviction be liable to im- with a banker, the servant will be guilty prisonment for any term not exceeding of felony if he apply it to his own use, two years; and every person aiding,

for it still remains in the constructive abesting, counselling, or procuring the possession of the master ; 2 Leach, commission of any misdemeanor punish- 870. So also where a banker's clerk able under this act, shall be liable to is sent to the money room to bring be indicted and punished as a principal cash for any particular purpose, and he offender. As to the venue in cases of abstracts some for his own use, he is larceny, see 7 Geo. IV. c. 64, SS 12 guilty of larceny; 1 Leach, 251, 314. & 13.

The assent of a prosecutor to give fa(2) What is deemed a sufficient cility to the commission of a larceny, taking may be deduced from the fol

for the purpose of detecting the offendlowing, amongst many other cases : ers, does not do away the felony, al. where a master places property in the though the property is not taken against care of a servant for a particular pur- his will Thus where the owner of pose as to leave it at the house of a goods knowing of an intention in the friend, or to procure change, or deposit prisoners to steal them, they having

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the owner to be wanting. Therefore no delivery of the goods without consent from the owner to the offender, upon trust, can ground a lar- and animo fu

plotted so to do with his servant, de- the post-office; Rer v. Pearce, 2 East, sired his servant to carry on the business. P. C. 663. If a person steal his own with a view to the detection of the goods from his own bailee, though he has thieves; in consequence of which the no intent to charge the bailee, but his. :. servant, with the consent of his master, intent is to defraud the king, yet if the agreed with the prisoners to open the

bailee had an interest in the possesouter door to them, and let them into sion, and could have withheld it from the house, when they broke open inner the owner, the taking is a larceny. apartments, and took the goods : held, By seven judges v. four; Rer. v Wil by a majority of the judges, to be lar- kinson, R. & R. C. C. 470. So if a ceny, one (only) doubting, because of part owner of property steal it from the the owner's assent and partial encour- person whose custody it is, and who agement of the felony by means of his is responsible for its safety, he is guilty servant; Rex v. Egginton, 2 Leach, of larceny. So, where a clerk embez913; 2 B. & P. 508; S. P. Rer v. zles a bill of exchange, which he reDannelly, 2 Marsh, 571; 2 East, P.C. ceived from his master with directions 494, 666. If a bag of wheat be de- to enclose and transmit it in a letter by livered to a warehouseman for safe cus- post to a correspondent; this has been tody, and he take all the wheat out of held larceny; 2 East, P. C. 565; 2 the same, and dispose of it, it is larceny, Ch. C. L. 2d ed. 917, b. It is larRer v. Brasier, R. & R. C. C. 337.

ceny for a person hired for the special Where there is a plan to cheat a man purpose of driving sheep to a fair, to of his property under colour of a bet, convert them to his own use, he having and he parts with the possession only, the intention to do so at the time of reto deposit as a stake with one of the ceiving them from the owner; I R. & confederates, the taking by such con- M. C. C. 87. Where property, which federate will be felonious, id. 413. To the prosecutor had bought, was weighmake a taking felonious it is not neces- ed out in the presence of his clerk, and sary it should be done lucri causâ ; delivered to his carman's servant to taking with an intent to destroy, will cart, who let other persons take away be sufficient to constitute the offence of the cart, and dispose of the property, larceny, if done to serve the prisoner or for his benefit jointly with that of the another person, though not in a pecu- others, the carman's servant, as well as niary way. By six v. five judges ; the others, were held guilty of larceny Rea y, Cabbage, id. 292; 2 Russell, 94. at common law; Rer. v. Harding, R. Where a banker's clerk took notes & R. C. C. 125. If a party finding profrom the till, under colour of a check perty knows the owner; or if there be from a third person, which check he any mark upon it by which the owner obtained by having entered a fictitious can be ascertained, and instead of rebalance in the books in favour of that turning it, converts it to his own use, person : held a felony, the obtaining such a conversion is a felonious taking ; the check fraudulently being nothing Rer. v. Jumes, 2 Russell, 102. Fraumore than mere machinery to effect his dulently obtaining a chest of tea from purpose ; Rexy. Hammon, R. & R.C.C. the India House, though by means of a 221 ; S. C. 4; Taunt. 304. Fraudu- regular request paper and permit, has lently obtaining the mail bags by de- been held a larceny; Rer v. Hough, livery from one in the post-office to the R. & R. C. C. 163. But where a prisoner, is a taking and stealing out of person obtained possession of a hat

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ceny.' As, if A. lends B. a horse, and he rides away with him; or, if I send goods by a carrier, and he carries them

from the maker, which had been order into a shop in London and purchased ed by a third person, by sending a boy jewellery, saying that he would pay in for it in the name of such third person: cash, and the seller agreed to deliver held that this did not amount to lar. the articles at the coach-office annexed ceny.

The distinction between these to the inn where the prisoner stated two last cases, which on a first view he lodged. The seller made out an seem to be undistinguishable, appears to invoice, and took the goods as directed, be this. In the former, the goods when the prisoner said he had expewere obtained with a felonious design, rienced a disappointment in not rethe owner still retaining his right of ceiving money he expected by letter. property in them; in the latter, al- At this moment a two-penny post letter though the offender obtained the hat was handed to him, which he opened under false pretences, or rather fraudu- in the presence of the vendor, and said lent circumstances, the owner parted he had a friend to meet at Tom's Coffeewith his property voluntarily. And house at seven, who would supply the where the defendant obtains silver on money. The goods were left, and the pretence of sending a half-guinea pre- seller went home. The prisoner had sently in exchange, it is no felony; 2 taken a place by the mail, which he East, P. C. 672. So writing a letter countermanded, and absconded with in the name of a third person to borrow the goods. The vendor swore that he money, which the writer obtains by that considered the goods sold if he got his fraud, is only a misdemeanor; Id. 673. cash, but not before. It was left to the So if the owner parts with the posses. jury to say whether the prisoner had sion of goods for a particular purpose, any intention of buying and paying for and the bailee when that purpose is ex- the goods, or whether he gave the order ecuted, neglects to return them, and merely to get possession of them, to afterwards disposes of them, if he had convert them to his own use. The not a felonious intention when he ori- jury found the latter, and the prisoner ginally took them, his subsequent with- was convicted, which conviction was holding and disposing of them, does held right by the twelve judges; Rer not constitute a felonious taking, or v. Campbell, Car. C. L. 280; I M. & make him guilty of felony; Rer v.

P. 373. So if a person having ordered Banks, R. & R. C. C. 441. So if a tradesman to bring a parcel of goods the master of a foreign vessel captured to his house, look out a certain quantity, by a British ship, and carried into port, ask the price of them, separate them takes goods from the vessel after she from the rest, and then, by sending the has been condemned as a prize, it does tradesman back on pretence of requiring not amount to larceny, unless there is Other goods, take the opportunity of evidence that he took them for the running away with the goods he had purpose of converting them to his own looked out, with intent to steal them, private use ; Rer v. Van Muyen, R. & it is larceny, for as the sale was not R. C. C. 118. So the clandestinely completed, the possession of the protaking away articles to induce the owner perty still remained in the tradesman; (a servant girl) to fetch them, and Rer v. Sharpless, I Leach, C. C. 92. thereby to give the offender an oppor- Where two planned to rob a girl of tunity to solicit her to commit fornica- some coats, and one got her to go with tion with him, is not felonious ; Rerv. him that he might get some money to Dickinson, id. 420. The prisoner went buy them of her, and she left the coats

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