his family being therein; though they need not be put in fear. 3. By robbing a dwelling-house in the day time, (which robbing implies a breaking ;) any perfon being therein, though not put in fear. 4. In a dwelling house, by day or night, without breaking, any perfon being therein and put in fear; which amounts in law to a robbery: and in both these last inftances, acceffaries before the fact are excluded clergy. II. In Larcenies to the value of 5s. committed, 1. By breaking any dwelling-houfe, or any out-houfe, fhop, or warehouse, thereto belonging, in the day time, though no perfon be therein: which extends to aiders, abettors, and acceffaries before the fact. 2. By privately ftealing goods, wares, or merchandizes, in any fhop, warehoufe, coach-houfe, or ftable, by day or night; though the fame be not broken open, and though no perfon be therein: which extends likewife to fuch as affift, hire, or command the offence to be committed. III. In Larcenies to the value of 40s. In a dwelling houfe or its out-houses, though not brok en open, and whether any person be therein or not, unless committed by apprentices under the age of fifteen, against their masters: this alfo extends to aiders and af Lifters.. This abridged ftatement is given by Mr. Eaft as an index to a great number of ftatutes, and a great variety of cafes which it would be tedious here to enumerate. By the 24 Geo. II. c. 45. all perfons who fhall feloniouf. ly fteal any goods, wares, or merchandize, of the value of 40s. in any ship, barge, lighter, boat, or other veffel or craft, on any navigable river, or in any port of entry or discharge, or in any creek belonging to fuch river or port, or upon any wharf or quay adjacent; or who fhall be present, aiding and aflifting in committing any fuch offences, fhall be excluded from the benefit of clergy. The penalty of plundering wrecks has already been mentioned. The confideration to whom THE PROPERTY in the things ftolen belongs is very material. Some things are not the fubject of property at all, or only fo ratione loci or privilegii, and others are only fuch fub modo, that is, where fome person has acquired acquired a fpecial dominion over them. But with respect to things which are the regular fubjects of property, felony may be committed in ftealing them, though the owner be not known; for the guilt of the thief is the fame. He may therefore be charged in the indictment with having ftolen the goods of a perfon to the jury unknown; or with having received goods ftolen by a perfon unknown. And in fuch cafe the king fhall have the goods. But if the owner be really known, an indictment alleging the goods to be the property of a perfon unknown, would be improper; the prifoner must be difcharged of that indictment, and tried upon a new one, for stealing the goods of the owner by narne; and in the profecutions for ftealing the goods of a perfon unknown, fome proof must be given fufficient to raise a reasonable prefumption that the taking was felonious or invito domino; for it is not enough that the prifoner is unable to give a good account how he came by the goods. The EVIDENCE neceffary to fupport indictments for larceny, is beft confidered by adverting to the various modes of defence by which fuch charges are palliated or denied. are 1. Denial of the Fact. It may be laid down generally, that wherever the property of one man, which has been taken from him without his knowledge or confent, is found upon another, it is incumbent on that other to prove how he came by it; other wife the prefumption is, that he obtained it feloniously. This, like every other prefumption, is ftrengthened, weakened, or rebutted by concomitant circumftances, too numerous in the nature of the thing to be detailed. But the bare finding in one's poffeffion property of the fame kind which another has loft, unless that other can from marks or other circumftances fatisfy the jury of its identity, is not in general fufficient evidence that the goods were felonioufly obtained. Yet, where the fact is very recent, fo as to afford reasonable prefumption that the property could not have been acquired in any other manner, the court are warranted in concluding it is the fame, unless the prifoner can prove the contrary. The confeffion of the prifoner is often adduced in this cafe; but on this, as upon other occafions, care must be taken to afcertam, that fuch confeflion was not procured by promife or threat; as in fuch cafes it ought not to be received. 2. That the Goods were taken on a Claim of Right. Goods may be fo taken by the party's own immediate act, or by the act of the law through his means; but if it appear that a writ or process is iffued with the mere intent of gaining poffeffion poffeffion of the effects of another, without the leaft foundation for a claim, it is felony. 3. By Miftake or Accident. Analogous to the taking upon a claim of right, is the taking by mistake arising from heedleffnefs, or from mere accident; but in this cafe the mistake must be very apparent, and the conduct of the party free from all attempts to difguife, conceal, or clandeftinely difpofe of the property. 4. On taking as a Trefpaffer, without Fraud. The taking may amount only to a trefpafs, and the circumftances in fuch cafe muft guide the judgment. As where a man takes another's goods openly before him or before other perfons, otherwife than by apparent robbery; or having poffeffed himself of them, avows the fact before he is queftioned. 5. Finding. Another defence is, that the goods were found. This is connected in great measure with the first mentioned mode of defence. It is the most trite excufe in cafes of larceny, and in general the leaft founded. Still if the fact be fo, it is no felony; although it may be attended with all thofe circumftances which ufually prove a taking with a felonious intent; fuch as denying or fecreting it. 6. On a Poffeffion by Delivery of a third Perfon. It is a common mode of defence to state a delivery by a perfon unknown, and of whom no evidence is given: little or no reliance can confequently be had upon it. But this defence, however improbable, is entitled to confideration, fince it is, if true, a valid defence. 7. The most comprehenfive and moft intricate line of defence is, That the goods were delivered to the prifoner by or on behalf of the owner; or were taken with his confent or approbation. For if it be proved that there was no trefpaís or felo nious intent in taking the goods, no fubfequent conversion of them can amount to felony. This defence involves, firit, thofe cafes where perfons being previously apprifed of an intention to commit a larceny, give facilities in order to detect and fecure the thieves; the conviction or acquittal in these cafes depends upon very minute circumftances. Second, where property is obtained with the confent of the owner, but extorted by threats of charging him with crimes; this is generally confidered as robbery from the perfon. Third, cafes where the inquiry is, whether the owner, in making the delivery, intended to part with the property, or only with the poleon of the thing delivered; for if he parted with the property to the prifoner, by whatever fraudulent means he was induced to give the credit, it cannot be felony; but if the poffeffion only was delivered, then it is materal to inquire whe $83 ther ther the delivery was by way of charge, or as a general bailment, or for fome fpecial purpose. In this clafs are confidered the cafes of obtaining property by fraudulent appearances; by promises to return and pay for things delivered; by preconcerted fraudulent gaming; by ordering goods on promife to pay for them on delivery, and then retaining them without payment, and numerous other artifices by which money and goods are obtained. In this defence are alfo included the cafes of thofe who, having got bills into their poffeffion for the pretended purpose of discounting, keep or make away with them; of thofe who draw money or goods from the ignorant or credulous under pretext of finding valuable jewels or other things, in which the dupe fuppofes he is to fhare. In the consideration of this mode of defence, which applies alfo to a vaft variety of other cafes, the mode and intent of the delivery of the goods, or money alleged to be stolen, are often very material. The general result of the cafes is, that if a perfon obtain the goods of another by a lawful delivery without fraud, although he afterwards convert them to his own ufe, he cannot be guilty of felony. As, if a tailor has cloth delivered to him to make clothes with; or a carrier receives goods to carry to a certain place; or a friend is intrufted with property to keep for the owner's ufe; which they afterwards feverally embezzle. So if plate is delivered to a goldfmith to work or weigh, or as a depofit, his converfion of it will not be felony; but if fuch delivery is obtained by any fraud or falfehood with intent to fteal, though under pretence of a hiring, or even a purchase; if in the latter cafe no credit was intended to be given, delivery in fact by the owner will not pafs the legal poffeffion, fo as to fave the party from the guilt of felony. But if the property were intended to pafs by the delivery, there can be no felonious taking. 8. Taking through neceflity is a common defence, but its want of validity has been noticed in a preceding page. LARCENY AND ROBBERY FROM THE PERSON. The crime of larceny from the perfon may be aggravated in two different manners. Ift. Where the thing is taken from the perfon privately without the knowledge of the owner; 2d. Where the perfon from whom it is taken is put in fear at the time, or the taking is accompanied with circumftances of violence, threat, or terror, which are fufficient grounds for prefuming fear; in which cafe it affumes the denomination of robbery. The first of thefe offences is derived from the ftat. 8 Eliz. c. 4, which recites, that "whereas certain evil disposed persons, commonly called cut-purfes or pick-purfes, but indeed by the laws laws of this land very felons and thieves, do confeder together, making among themselves as it were a brotherhood or fraternity of an art or myftery to live idly by the fecret spoil of the good fubjects of this realm; and as well at fermons and preachings of the word of God, and in places and times of doing fervice and common prayer, in churches, chapels, clofets, and oratories, and not only there, but also in the prince's palace and prefence, and at the places and courts of justice, and at the times of miniftering of the laws in the fame, and in fairs, markets, and other affemblies of the people, and at the time of doing execution, &c. do, without regard to any place, time, or perfon, &c. under the cloak of honesty by their outward apparent countenance and behaviour, fubtily, privily, craftily, and feloniously, take the goods of divers fubjects from their perfons, by cutting and picking their purfes, and other felonious flights and devices, &c. " and enacts that no perfon indicted or appealed for feloniously taking of any money, goods, or chattels from the perfon of any other privily without his knowledge, in any place whatfoever; and thereupon found guilty, fhall be admitted to benefit of clergy. The ftatute is confined to him who actually commits the fact, and extends not to acceflaries before or after, nor even to those who are prefent aiding and abetting. Wherefore if there is an accomplice prefent, and it can not be told which of them took the goods, neither can be convicted of the capital part of the charge. There must be an actual tak, ing from the perfon; taking in his prefence is not fufficient, as it is in robbery. The stealing of notes, &c. is within the ftatute. The goods ftolen must be above the value of 12d.; otherwife clergy is not oufted, as in robbery; for the statute was not intended to alter the nature of the crime, but only to exclude clergy where it was before neceflary to procure the benefit of it. Any fort of fecret or fudden taking from the perfon, with out putting him in fear, and without terror or open violence, feems within the act; though fome small force be used by the thief to poffefs himself of the property; provided there be no refiftance by the owner, or injury to his perfon; and the circumstances of the cafe fhew that the thing was taken, not fo much againft, as without, his confent. But in no cafe where the property is obtained by any struggling or vio lence to the perfon, does the offence fall within this sta tute. It was formerly holden that perfons afleep or drunk were not within the protection of the act, which speaks of places of public refort and the like, where perfons were supposed to S$4 |