made or procured by the act of the felon; and this either by conftruction of law, or by actual force. But although, generally fpeaking, every entry by a trefpafler is a breaking in law, yet that is not fufficient in this cafe; for the words of the indictment are, felonioufly and burglarioufly broke, &c. Therefore, if the door or window be left open, and the thief enter and take away the goods in the night, that will not conftitute a burglary. Though it is otherwife if a thief enter by a chimney, becaufe it is as much inclofed as the nature of the thing will admit of. To amount to a breaking within this branch of the definition, the entrance muft be obtained either by fraud, confpiracy, threat, or force. There muft alfo be an entry, but if any part of the body, as a hand, or foot, be within the houfe, it is fufficient. The entry need not be at the fame time as the breaking, provided both be in the night; therefore, if thieves break a hole in the houfe one night, and enter and commit felony on another, it is burglary. The term manfion includes three diftinct objects of burglary; 1. It may be committed, against the walls or gates of a walled town; 2. Against churches; and 3. Against private dwelling-houfes. Every houfe for the dwelling and habitation of man is taken to be a manfion-house wherein burglary may be committed. Likewife a chamber or room, be it upper or lower, wherein any perfon inhabits or dwells, is a manfion-houfe in law. But no burglary can be committed by breaking into any inclofed ground, or into any booth or tent, though the owner lodge therein: but in cafe of robbery committed in these latter, a remedy is provided by the 5 & 6 Edw. VI. c. 9. The manfion not only includes the dwelling-house, but also the out-houses, fuch as barns, ftables, cow-houses, dairy-houfes and the like, if parcel of the meffuage, though under the fame roof, or contiguous. Of Inhabitancy there must be fome token, either by the prefent or at least by previous occupation of the owner, or some part of his family. However it is agreed by all, that a house wherein a man dwells but for part of the year, or a chamber in one of the inns of court, or a college, wherein a perfon ufually lodges, may be called his dwelling houfe, whether any perfon were actually therein or not at the very time of the of fence. Yet, where neither the owner nor any part of his family were in the house at the time of the breaking and entering, he must have quitted it with intent to return, in order to have it still confidered as his manfion. It is neceffary to afcertain to whom the mansion belongs, and to ftate that with accuracy in the indictment: the rule on this fubject is fomewhat complex, but thus reduced by Mr. Eaft from whofe Treatife on Pleas of the Crown, moft of the foregoing and many following obfervations are derived. Where the legal title to the whole manfion remains in the fame perfon; there, if he inhabits it either by himself, his family, or fervants, or even by his guests, the indictment must lay the offence to be committed against his manfion. And fo it is although he let out apartments to inmates, who have a feparate intereft therein, if they have the fame outer door or entrance into the manfion in common with himself; but if diftinct families be in the exclufive occupation of the houfe, and have their ordinary refidence or domicile there, without any interference on the part of the proper owner; or if they be only in poffeffion of parts of the houfe as inmates to the owner, and have a diftinct and feparate entrance; then the offence of breaking, &c. their feparate apartments must be laid to be done against the manfion-houfe of fuch occupiers respectively. Burglary must be committed in the night. Anciently the day was accounted to begin only from fun rifing, and to end immediately upon fun-fet, but it is now generally agreed, that if there be day light enough begun or left either by the light of the fun or twilight, whereby the countenance of a perfon may be reasonably difcerned, it is no burglary; but this does not extend to moon light; for then many midnight burglaries would go unpunished; and befides, the malignity of the offence does not fo properly arife from its being done in the dark, as at the dead of the night, when all the creation except beasts of prey are at reft, when fleep has difarmed the owner, and rendered his caftle defenceless. The punishment of burglary is death without benefit of clergy; and by 5 Anne, c. 31. (which is principally levelled at the receivers of ftolen goods,) any perfon who fhall receive, harbour or conceal any burglars, &c. knowing them to be fo, fhall be taken as an acceffary, and fuffer death. as a felon convict. A reward of 40/. and certificate of exemption from parish offices are given on the conviction of burglars by feveral ftatutes; and alfo a pardon to an offender out of prifon discovering two or more accomplices. LARCENY AND ROBBERY. The offence of feloniously taking the perfonal property of another is denominated either larceny, where the fact is accomplished fecretly, or by furprise or fraud; or robbery, where accompanied by circumftances of violence, threat, or terror. Thefe two offences, which in their nature are intimately connected, the first being includ ed in the other, are alfo in part blended together by the ftatute There must be an actual taking, or feverance of the thing, from the poffeffion of the owner; for as every larceny includes a trefpafs: if the party be not guilty of a trespass in taking the goods, he cannot be guilty of felony in carrying them away. Hence it is that if the party obtain poffeffion of the goods lawfully as upon a truft, for or on account of the owner, by which he acquires a kind of special property in them, he cannot afterwards be guilty of felony in converting them to his own ufe, unless by fome new and diftinct act of taking, as by fevering part of the goods from the rest with intent to convert them to his own ufe, he determines the privity of the bailment, and the fpecial property thereby conferred upon him. A bare charge of goods, fuch as that which is commited to a fervant over the goods of his master, or a mere liberty to make ufe of a thing for a particular purpose, such as a gueft at an inn has of the furniture, &c.; in as much as it does not in law convey even the poffeffion of the goods, much lefs any special property in them, furnishes no objection to a charge of felony. In like manner, though the poffeffion be delivered by the owner for a particular purpofe, yet if it be obtained by any fraud it amounts to a tortious taking, in the fame degree as if the party had taken it without any delivery at all from the owner. Though otherwife if the delivery be obtained on a truft without fraud. So a colourable gift, which in truth was extorted by fear, amounts to a taking and trefpafs in law; and has often been holden to constitute robbery, and this though the thing obtained were not originally in the contemplation of the robber, but received as the price of defifting from a felonious attempt of another kind. But the taking in all cafes must be againft or without the confent of the owner to conftitute robbery or larceny. But although there must be a taking in fact from the actual or constructive poffeffion of the owner, yet it need not be by the very hand of the party accufed. For if he fraudulently procure another, who is himself innocent of any felonious intent, to take the goods for him, it will be the fame as if he had taken them himself, and the taking must be charged to be by him. As if one procure an infant within the age of difcretion to steal goods for him, or if by fraud or perjury he got poffeflion of goods by legal procefs without colour of title, The 1 The least removal of the thing taken from the place where it was before is a fufficient carrying away, though it be not quite carried off. If the thief once takes poffeffion of the thing, the offence is complete, though he afterwards returns it, or lets it fall in ftruggling, and never takes it up again. On the point by whom larceny may be committed, it is obferved that the fame excufes of infanity, idiocy, coverture, and infancy, which prevail in other cafes of felony, will of course have place here. Jointenants or tenants in common of a chattel cannot be guilty of stealing the fame from each other, because the property and poffeffion is in both; but under fome circumstances a man may be guilty of larceny in ftealing his own goods, or of robbery in taking his own property from the perfon of another. So he may be an acceffary after the fact to fuch larceny or robbery, by harbouring the thief or affifting his escape. For example; if a man delivers goods to another to keep for him, and then fteals them, with intent to charge him with the value of them: this is felony in the perfon who steals, although he is the owner. So likewise, a man having delivered money to his fervant to carry to some diftant place, difguifes himself, and robs the fervant on the road with intent to charge the hundred; this is undoubtedly robbery. By the fame rule the wife may steal the goods of her husband delivered for a limited purpose to another perfon; but a feme covert cannot commit larceny of her husband's goods from his own poffeffion, because in law they are confidered but as one perfon, and he has a kind of intereft in them. On this account not even a stranger can commit larce ny of fuch goods by the delivery of the wife, though he knew they were the husband's; but he may by taking the wife by force and against her will, together with the goods, by force of the ftatute. Neither can the wife commit larceny in the company of her husband; for it is deemed his coercion, and not her own voluntary act. Yet if the do it in his abfence, and by his mere command, fhe is then punishable as if the were fole. And the husband, it is faid, may be acceffary to the wife in receiving her; though not the wife for receiving her husband. For the prevention of larcenies by fervants, and in aid of the common law on that point, feveral ftatutes have been made. That of the 33 Hen. VI. c. 1. provides against the difhonesty. of those servants who on the death of their masters violently feize or fpoil their property, that on information exhibited by the executors to the chancellor a writ may iffue, commanding fuch fervants to appear in the court of king's bench, to answer Rr4 fuch fuch actions as the executors may bring against them, and if they do not appear, they may be attainted of felony. The ftatute 21 Hen. VIII. c. 7. reciting the embezzlements and frauds committed by fervants to whom property was intrusted by their mafters, enacts, that all fuch fervants (being of the age of eighteen and not apprentices) to whom any caskets, jewels, money, goods, or chattels, by their matters or miftreffes, fhall be delivered to keep, if the fervants go away with them with intent to fteal them, or elfe being in the fervice of their faid master or mistress, without their aflent or command, embezzle fuch caskets, &c. or otherwife convert them to their own use with purpose to fteal them, if they are of the value of forty fhillings, the offender fhall be punished as other felons are, by the courfe of the common law. After fome alterations, repeals, and re-enactments, this ftatute ftill continues in force, and the offenders are deprived of clergy. It extends however only to fuch as were fervants to the owners of the goods, both at the time of the delivery and when they were ftolen. This ftatute however is but little reforted to at this day; for, notwithstanding the inference which might be drawn from it, it is a clear maxim of the common law, that where one has only the bare charge or cuftody of the goods of another, the legal poffeffion remains in the owner, and the party may be guilty of trefpafs and larceny in fraudulently converting them to his own ufe. Thus a butler may commit larceny of plate in his cuftody, or a Thepherd of theep.. The fame of a fervant intrusted to fell goods in a fhop. This rule appears to hold univerfally in the cafe of fervants, whofe poffeffion of their mafter's goods by their delivery or permiffion is the poffeffion of the mafter himself. Still as the common law and the ftatute left fome cafes unremedied, and fome doubts unfatisfied, particularly in thofe inftances, where not received into the mafter's actual poffeffion before the taking by the fervant; the declaratory statute of the 39 Geo. III. c. 85. was framed, which enacts and declares, that if any fervant, clerk, or any perfon employed in the capacity of a fervant or clerk, to any perfon or body corporate or politic, fhall, by virtue of fuch employment, receive or take into his pofleflion any money, goods, bond, bill, note, banker's draft, or other valuable security, or effects, for or in the name or on the account of his mafter or employers, and fhall fraudulently embezzle, fecrete, or make away with the fame, or any part thereof; every fuch offender shall be deemed to have felonioufly stolen the fame, although the property was no otherwife received into the poffeffion of fuch fervant or clerk; and every fuch offender, his adviser, procuror, aider, or abettor, fhall be transported for any term not exceeding fourteen years, The |