27. If a person leaves his doors or windows open, and another enters therein, is it burglary?-226.

It is not; yet, if he afterward unlocks an inner or chamber door it is so.

28. Is coming down the chimney a burglarious entry?-226.

It is; for that is as much closed as the nature of things will permit.

29. What is sufficient to constitute burglarious entry ?-227.

Any the least degree of it with any part of the body, or with an instrument held in the hand, is sufficient; as to step over the threshold, to put a hand or a hook in at the window to draw out goods, or a pistol to demand one's money.

30. What as to the intent of burglary?-227.

The breaking and entry must be with a felonious intent, otherwise it is only a trespass.

31. How is burglary punished?-228.

It is felony at common law, but within the benefit of clergy. The statutes, however, take away clergy from the principals, and from all abettors and accessaries before the fact.

CHAPTER XVII.

OF OFFENSES AGAINST PRIVATE PROPERTY.

1. What are the offenses against private subjects which more immediately affect their property?--229.

Three 1. Larceny, or theft. 2. Malicious mischief. 3. Forgery. Of which, the two first are attended with a breach of the peace; the latter, though equally injurious to the rights of property, is attended with no act of violence.

2. Into what tico sorts is larceny distinguished by the law?-229 Into 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.

3. What is simple larceny ?-229.

The felonious taking and carrying away of the personal goods of another..

4. When is simple larceny grand, and when petit larceny ?-229. If the value of the thing stolen be above twelve pence, it is called grand larceny; if of, or under, that value, it is called petit larceny.

5. Does the taking, in larceny, imply the consent of the owner of the goods to be wanting ?-230.

It does.

6. Can any delivery of the goods from the owner to the offender, in trust, ground a larceny ?-230.

It cannot.

7. How may a carrier of goods commit the offense of larceny ?—

230.

If he opens a bale or pack of goods, or pierces a vessel of wine, and takes part thereof away; or if he carries it to the place appointed, and afterward takes away the whole.

8. What is the offense of embezzling goods, of which the offender had not the possession, but only the care and oversight ?-231. It is felony at the common law.

9. Under what circumstances may a man be guilty of felony in taking his own goods ?-231.

By stealing them from a pawnbroker, or any one to whom he hath delivered and intrusted them, with the intent to charge such bailee with the value.

10. What is a sufficient carrying away of goods to constitute a larceny ?-231.

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.

11. As to the taking and carrying away, what must be established to constitute larceny ?-232.

That it was done animo furandi; or, as the civil law expresses it, lucri causâ.

12. Whom does this requisite excuse, and whom indemnify?-232. Besides excusing those who labor under incapacities of mind or will, it indemnifies mere trespassers, and other petty offenders.

13. What is the ordinary criterion of a felonious intent?—232. Where the party doth it clandestinely; or, being charged with the fact, denies it.

14. Is this the only criterion of criminality?--232.

By no means; for in cases that may amount to larceny, the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or animum furandi; wherefore, they must be left to the due and attentive consideration of the court and jury.

15. Of what kind of goods only may larceny be committed?-232. Of the personal goods of another.

16. Could larceny, at common law, be committed of things that adhere to the freehold ?-232.

No larceny could be committed of things that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels, in the constructive possession of him on whose soil they are left or laid, and comes again at another time and takes them away, it is larceny. And so it is, if the owner, or any one else, has severed them.

17. Could larceny, at common law, be committed of bills, bonds, and notes?-234.

These, which concern mere choses in action, being goods of

no intrinsic value, and not importing any property in possession of the person from whom they are taken, were held not to be such goods whereof larceny might be committed; but, by statute, they are now put upon the same footing with respect to larcenies, as the money they were meant to secure.

18. Can larceny be committed as to goods of which the owner is unknown?-236.

If there be a property in them it may; and an indictment will lie for stealing the goods of a person unknown.

19. Might a prosecution for theft be carried on without the intervention of the owner ?—236.

It might.

?-236.

20. Is it felony to steal a shroud out of a grave Yes; it is the property of those who buried the deceased.

21. Is it felony to steal the corpse itself?—236.

It is not, for it has no owner, unless some of the graveclothes be stolen with it.

22. What was the law of the Franks in this respect ?—236.

It directed, that a person who had dug a corpse out of the ground in order to strip it, should be banished from society, and no one suffered to relieve his wants, till the relations of the deceased consented to his re-admission.

23. How was theft punished by the Jewish law?—236.

Only with a pecuniary fine, and satisfaction to the party injured.

24. How by the civil law?—236.

Till some very late constitutions, we never find the punishment capital.

25. How by the laws of Draco ?—236.

With death; but Solon afterward changed the penalty to a pecuniary mulct, which remained the Attic law, in general, except that once, in a time of dearth, it was made capital to break into a garden and steal figs; but this law, and the

informers against the offense, grew so odious, that from them all malicious informers were styled sycophants.

26. What seems to be the natural punishment for injuries to property?-236, 237.

The loss of the offender's own property; which ought to be universally the case, were all men's fortunes equal. But as those who have no property themselves, are generally the most ready to attack the property of others, it has been found necessary, instead of a pecuniary, to substitute a corporeal punishment; yet how far this corporeal punishment ought to extend is what has occasioned the doubt. Sir Thomas More and the Marquis Beccaria, at the distance of more than two centuries from each other, have proposed that kind of corporeal punishment which approaches the nearest to a pecuniary satisfaction, viz., a temporary imprisonment, with an obligation to labor, first for the party robbed, and afterward for the public, in works of the most slavish kind; in order to oblige the offender to repair, by his industry and diligence, the depredations he has committed upon private property and public order. But, notwithstanding all the remonstrances of speculative politicians and moralists, the punishment of theft still continues, throughout the greatest part of Europe, to be capital; and Puffendorf, together with Sir Matthew Hale, are of opinion that this must always be referred to the prudence of the legislature, who are to judge, say they, when crimes are become so enormous as to require such sanguinary restrictions. Yet both of these writers agree that such punishment should be cautiously inflicted, and never without the utmost necessity.

27. How was theft punished by the ancient Saxon laws?-237.

With death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom; as, among their ancestors the Germans, by a stated number of cattle. But, in the ninth year of Henry the First, this power of redemption was taken away, and all persons guilty of larceny, above the value of twelve pence, were directed to be hanged.

28. What is mixed, or compound, larceny ?-240.

It is such as has all the properties of simple larceny, but is