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(Mo. Sup. Ct., 1900.) Train Robbery. Defendant was convicted. of train robbery and appealed. GANTT, P. J. The contention is that these facts do not establish that this robbery was committed in the presence and against the will, and by violence, or putting in fear of immediate injury to his person." [Mo. Acts Apr. 2, 1895.] It has long been decided that it is unnecessary to charge a putting in fear in the indictment, or to prove actual fear; for if the fact be laid to be done violently, and against the will, the law, in odium spoilatoris, will presume fear. S. v. Stinson, 124 Mo. 447, 27 S. W. 1098; S. v. Lawler, 130 Mo. 366, 371, 32 S. W. 979. That the robbers, with arms and threats of immediate violence, forced the agent and his assistant out of the express car to the platform, and by like force cut the train into two parts, and drove the engineer and fireman off of the engine, and then ran the front part of the train forward about one-fourth of a mile, is conceded; but it is urged that the robbers applied the dynamite after they had pulled the train away from the station and after they had put the agent out of the express car, it was not in his presence. Clearly, this is not good law. Affirmed. Sherwood and Burgess, JJ., concurred. S. v. Kennedy, 154 Mo. 268, 55 S. W. 293.

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LARCENY FROM THE PERSON.

$150. In General.

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Statute 8 Eliz. (1565), c. 4. §1. Where a certain kind of evildisposed persons, commonly called cut-purses or pick-purses, but indeed by the laws of this land, very felons and thieves, do consider together, making among themselves as it were a brotherhood or fraternity of an art or mystery, to live idly by the secret spoils of the good and true subjects of this realm; § 2. Be it therefore enacted by the authority of this present parliament, that no person, or persons which hereafter shall happen to be indicted or appealed for felonious taking of any money, goods or chattels from the person of any other privily without his knowledge, in any place whatsoever, and thereupon found guilty by virtue of twelve men,

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shall from henceforth be admitted to have the benefit of his or their clergy, but utterly be excluded thereof, and shall suffer death in such manner and form as they should if they were no clerks.

(Eng. Old Bailey, 1782.) While Asleep. Indictment for stealing a watch privately from the person of Thos. Sheridan without his knowledge. The defendant and Sheridan had been drinking at a public house together, both became much intoxicated, and went together to defendant's lodging, where Sheridan fell asleep; and while he slept the defendant stole his watch. The court held that this

was not such stealing privately as would oust the defendant of benefit of clergy within the meaning of the statute; and mention was made of a case in which a person intoxicated fell asleep in one of the watch-houses or niches on Westminster bridge on the way home, and one passing stole the buckles out of his shoes without awaking him; which the judges held not within the statute, which was intended to protect the property which persons should not be cnabled to secure by proper vigilance and caution, and did not extend to those who so exposed themselves to depredation. R. v. Gribble, 1 Leach C. C. (Ed. 3) No. 117, 5 L. 581.

(Cal. Sup. Ct., 1897.) Same. VAN FLEET, J. Defendant was charged with grand larceny, in stealing $17 from the person of James Shaw, and convicted. He complains that the evidence did not warrant the verdict. Shaw and the defendant had their beds near together, in the open air. Shaw, in going to bed, removed his trousers, in the pocket of which was the money, and placed them under his head, as a pillow. While he slept they were abstracted by the defendant and the money taken. The question is whether these facts show a "taking from the person, under our statute, which makes the offense grand larceny without regard to the amount stolen, "when the property is taken from the person of another." If it was not such taking, the amount was insufficient to constitute any greater offense than that of petit larceny. Pen. Code, §§ 487, 488. The stealing of property from the person has been from, an early period, under the English statutes, treated as a much graver and more heinous offense than ordinary or common theft-partly by reason of the ease with which it could be perpetrated, and the difficulty of guarding against it, and partly because of the greater liability of endangering the person or life of the victim. The same general purpose animated the modern statutes, including our own; and, as in England, the offense is made punishable as a felony. The difficulty has been in defining with precision in all cases what constitutes a taking from the person, and this has given rise to some confusion in the authorities on the question as to whether the property must be actually on, or attached to the person, or merely under the eye, or within the immediate reach, and so constructively within the control of the owner. According to Mr. Bishop, "The thing taken must be under the protection of the person, but need not be attached thereto." 2 Bish. Cr. Law 898. But he only cites R. v. Selway, 8 Cox C. C. 235 [§ 148], where the indictment was for robbery, and the facts show clearly that offense, and not larceny. We think its obvious purpose was to protect persons and property against the approach of the pick-pocket, the purse snatcher, the jewel abstracter, and other thieves of like character, who obtain property by similar means, and that it was in contemplation that the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical posses

sion. Had the garment alone been taken under like circumstances, the theft could not be held to have been from the person. A man does not wear his bed as he does his clothes. The money was therefore no more on his person, in any proper sense, than if it had been concealed under his bed, or elsewhere about it, or left in his clothes upon a chair, or hung on the wall. Reversed. P. v. McElroy, 116 Cal. 583, 48 Pac. 718.

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(Ala. Sup. Ct., 1897.) Secrecy or Force. On trial for larceny from the person, the defendant requested the court to charge the jury that there could be no such larceny without taking forcibly or secretly from the person. Refusal of this instruction was held proper, as the force or secrecy are no part of the offense. Higgs v. S., 113 Ala. 36, 21 So. 353.

See several cases on attempt to pick pockets, § 62.

(Tex. Ct. of App., 1890.) Without Knowledge. Appeal from conviction of larceny from the person. Prosecutor testified that he felt someone touch his pocket containing his purse, and that on looking around quickly he saw defendant's hand holding the purse pass from his to defendant's pocket. On this proof defendant was convicted of theft from the person, under Pen. Code Tex., Art. 745, which provides that "the theft must be committed without the knowledge of the person from whom the property is taken, or so suddenly as not to allow time to make resistance before the property is carried away." On error the judgment was affirmed, because the theft had been committed before it was discovered. Green v. S., 28 Tex. App. 493, 13 S. W. 784.

LARCENY FROM THE HOUSE.

$151. In General.

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Statute 12 Anne (1713), c. 7, entitled "An Act for the more effectual preventing and punishing robberies that shall be committed in dwelling-houses, "recites "that divers wicked and ill-disposed servants, and other persons, are encouraged to commit robberies in houses by the privilege, as the law now is, of demanding the benefit of their clergy;" and enacts "that all and every person or persons that shall feloniously steal any money, goods or chattels, wares or merchandises, of the value of forty shillings or more, being in any dwelling-house, or outhouse thereunto belonging, although such house or outhouse be not actually broken by such offender, and although the owner of such goods, or any other person or persons be or be not in such house or outhouse, or shall assist or aid any person or persons to commit any such offense, shall be absolutely debarred of the benefit of clergy."

(Eng. Old Bailey, 1780.) By Wife of Tenant. Anne, wife of John Gould, was indicted for stealing a purse and 6 guineas, property of W., in the dwelling-house of said John Gould, contrary to St. 12 Anne, c. 7; and she was tried before Nares, J., present Skinner, C. B., Ashurst, J., and Adair, recorder. The judges present were clearly of opinion (in which Gould, J., afterwards concurred) that the prisoner could not be convicted of the capital part of the indictment, inasmuch as the felony was committed in the dwelling-house of her husband, which must be construed to be her house also, and it is apparent that the legislature intended that the stealing must be in the house of another person, to oust the offender of clergy. R. v. Gould, Leach C. C. (Ed. 3) Case 107, 2 East P. C. 644, C. 390.

(Eng. C. C. R., 1820.) At Prisoner's Lodgings. Taylor was indicted and convicted of stealing prosecutor's watch, value 40s., in the dwelling-house of W., contrary to St. 12 Anne, c. 7. The proof was that prosecutor and defendant were old acquaintances, and meeting at a public house, defendant invited him to share his bed at W.'s house, which he did, without the knowledge of W. or any of his family, so that he was the prisoner's guest; and while he was asleep the prisoner stole the watch from the bed-head. On case reserved for the opinion of the judges, the majority (Burrough, Holroyd, and Bailey, JJ., Abbott, C. J., Richards, C. B., Wood and Graham, BB.) held the conviction right. Richardson, J., Best, J., and Garrow, B., contra. R. v. Taylor, Russell & R. 418, C. 389, Mi. 830.

(Eng. C. C. R., 1843.) In Prisoner's House. Bowden was indicted for stealing in his own house, chattels property of S., value over £5, contrary to St. 7 & 8 Geo. 4, c. 29, § 12; and convicted before Alderson, B.; but for doubt whether the offense could amount to stealing from a dwelling house or simple larceny only, he reserved the question for the opinion of the judges; and the case being considered, at a meeting of the judges, they all thought the conviction right for the whole offense. R. v. Bowden, 2 Moody 285, 1 Car. & K. 147, C. 390.

(Mass. Sup. Judicial Ct., 1855.) From Husband's House. METCALF. J. The defendant is convicted of larceny in a building owned by her husband; and as the indictment does not aver that it was committed in the night-time, it must be taken to have been committed in the daytime. St. 1843, c. 1, § 2. The question is whether the defendant is liable to the punishment prescribed by St. 1851. c. 156, § 4, for larceny "in any building," or only to the punishment elsewhere prescribed for simple larceny. * By St. 1851,

c. 156, § 4, "every person who shall commit the offense of larceny, by stealing in any building, shall be punished by imprisonment in the state prison not more than five years, or by fine not exceeding

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five hundred dollars, or imprisonment in the house of correction or county jail, not exceeding three years. For simple larceny, that is, for theft not aggravated by being from the person, nor by being committed in a dwelling-house or other building, ship, or vessel, a lighter punishment is prescribed by the Rev. Sts. c. 126, § 17, and c. 143, § 5. And we are of opinion that the defendant is liable only to that lighter punishment. It is a common learning, that the adjudged construction of the terms of a statute is enacted, as well as the terms themselves, when an act, which has been passed by the legislature of one state or country, is afterwards passed by the legislature of another. So when the same legislature, in a later statute, use the terms of an earlier one which has received a judicial construction, that construction is to be given to the later statute. And this is manifestly right. For if it were intended to exclude any known construction of a previous statute, the legal presumption is, that its terms would be so changed as to effect that intention. 6 Dane Ab. 613; Kirkpatrick v. Gibson, 2 Brock. 388, Fed. Cas. No. 7,848; Pennock v. Dialogue, 2 Pet. 18; Adams v. Field, 21 Vt. 266; Whitcomb v. Rood. 20 Vt. 52; Rutland v. Mendon, 1 Pick. 153; Myrick v. Hasey, 27 Me. 9. There are many instances in which our legislature have made punishable, as offenses, acts which were first made so by English statutes. Among others are our statutes concerning the fraudulent obtaining of money or goods by false pretenses. In all such cases, the construction given by the English courts is deemed to be the true one, when the statutes are alike. And we have already stated, that the act of stealing in certain buildings was first made an aggravated larceny, and subject to a greater punishment than before, by St. 1804, c. 143. Yet by the English St. 12 Anne, c. 7 (passed in 1713, and now repealed), it was enacted that [quoting the statute]; and by 24 Geo. 2, c. 45, a like provision was made [stating that statute in substance]. But it was early decided that the first of these statutes did not extend to a stealing by one in his own house, nor to a stealing by a wife in her husband's house, which is the same as her own. The intention of the statute was declared to be, to protect the owner's property in his own house from the depredation of others, or the property of others lodged in his house; thereby giving protection against all but the owner himself. It has also been decided that the property stolen must be such as is usually under the protection of the house, deposited there for safe custody, and not things immediately under the eye or personal care of some one who happens to be in the house. 2 East P. C. 644-646: R. v. Gould, 1 Leach (3d Ed.) 257; R. v. Thompson, 1 Leach 379; R. v. Campbell, 2 Leach 642 [below]. See also R. v. Taylor, Russ. & Ry. 418: R. v. Hamilton, 8 C. & P. 49; R. v. Carroll, 1 Mood. C. C. 89. And it has also been held that the St. 24 G. II. c. 45, does not extend to stealing by the owner and master of a vessel. R. v. Hadox, Russ. & Rv. 92. We are of opinion that the purpose and intent of St. 1804, c. 143, § 6, and of the Rev. Sts. c. 126,