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or if any other person lodging in the same house, or in a public inn, opens and enters another's door, with such evil intent; it is burglary. Nay, if the servant conspires with a robber, and lets him into the house by night, this is burglary in both for the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease, rather aggravates than extenuates the guilt. As for the entry, 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 a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries.' The entry may be before the breaking, as well as after: for by statute 12 Ann. c. 7. if a person enters into the dwelling-house of another, without breaking in, either by day or by night, with intent to commit felony, or, being in such house, shall commit any felony; and shall in the night break out of the same, this is declared to be burglary; there having before been different opinions concerning it: lord Bacon holding the affirmative, and sir Matthew Hale" the negative. But it is universally agreed, that there must be both a breaking either in fact or by implication, and also an entry, in order to complete the burglary.
4. As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. And it is the same, whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, a murder, a rape, or any other felony, is burglary; whether the thing be actually perpetrated or not. Nor does it make any difference, whether the offence were felony at common law, or only created so by statute; since that statute, which makes an offence felony, gives it incidentally all the properties of a felony at common law."
k Stra. 881. 1 Hal. P. C. 1 Hawk. P. C. 103.
11 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108.
m Elem. 65.
n 1 Hal. P. C. 554.
• 1 Hawk. P. C. 105.
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 & 4 W. & M. c. 9. from all abettors and accessories before the fact. And, in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime.
OF OFFENCES AGAINST PRIVATE PROPERTY.
THE next and last species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larciny, and malicious mischief: and one, that is 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. Larciny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larciny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larciny, which also includes in it the aggravation of a taking from one's house or person.
And, first, of simple larciny: which, when it is the stealing of goods above the value of twelvepence, is called grand larciny; when of goods to that value, or under, is petit larciny offences, which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larciny in general; and then shall observe the different degrees of punishment inflicted on its two several branches.
P Burglary in any house belonging to the plate-glass com pany, with intent to steal the stock or utensils, is by statute 13 Geo. III. c. 38. declared to
be single felony, and punished with transportation for seven years.
9 Pott. Antiq. b. 1. c. 26.
Simple larciny then is "the felonious taking, and carrying away, of the personal goods of another." This offence certainly 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," 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 larciny, as laid down in the foregoing definition.
1. It must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larciny. 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 away; these are no larcinies." (27) But if the carrier opens a bale or pack of goods, or pierces a barrel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcinies; for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare
a See Vol. II. pag. 9, &c.
c3 Inst. 107.
(27) It is now settled that if a person obtain a horse under pretence of hiring it, the delivery of it to him by the owner does not change the possession, and therefore if the original hiring was with intent to steal it, he is thereby guilty of larceny. Pear's case, Leach. 189. 110. But to constitute larceny, the felonious intention must exist in the mind at the time the property is obtained; for if it be obtained by fair con tract, and afterwards fraudulently converted, it is no felony. Charlewood's case, Leach. 317. 166.
non-delivery shall not of course be intended to arise from a felonious design; since that may happen from a variety of other accidents. Neither by the common law was it larciny in any servant to run away with the goods committed to him to keep, (28) but only a breach of civil trust. But by statute 33 Hen. VI. c. 1. the servants of persons deceased, accused of embezzling their master's goods, may by writ out of chancery (issued by the advice of the chief justices and chief baron, or any two of them) and proclamation made there upon, be summoned to appear personally in the court of king's bench, to answer their master's executors in any civil suit for such goods; and shall, on default of appearance, be attainted of felony. And by statute 21 Hen. VIII. c. 7. if any servant embezzles his master's goods to the value of forty shillings, it is made felony ; except in apprentices, and servants under eighteen years old. But if he had not the possession, but only the care and oversight of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law. So if a guestrobs his inn or tavern of a piece of plate, it is larciny; for he hath not the possession delivered to him, but merely the use; and so it is declared to be by statute 3 & 4 W. & M. c. 9. if a lodger runs away with goods from his ready furnished lodgings. Under some circumstances also a man may be guilty of felony in taking his own goods as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an intent to charge the hundred with the loss according to the statute of Winchester.f
There must not only be a taking, but a carrying away;
d 1 Hal. P. C. 506.
f Fost. 123, 124.
(28) The 39 G. III. c. 58. enacts that if any servant or clerk, &c. shall by virtue of such employment receive or take any money, goods, bond, bill, note, &c. in the name of his master or employer, and shall embezzle or make away with the same, such offender, his aiders or abettors, shall be transported for any term not exceeding fourteen years, at the discretion of the court.
cepit et asportavit was the old law-latin. 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, or carrying away. As if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down stairs; these have been adjudged sufficient carryings away, to constitute a larciny. Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprised before he can make his escape with it; this is larciny.h
3. This taking, and carrying away, must also be felonious; that is, done anima furandi: or, as the civil law expresses it, lucri causa. This requisite, besides excusing those who labour under incapacities of mind or will, (of whom we spoke sufficiently at the entrance of this book,*) indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master's horse without his knowledge, and brings him home again: if a neighbour takes another's plough, that is left in the field, and uses it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I distrein another's cattle, or seize them: all these are misdemesnors and trespasses, but no felonies. The ordinary discovery of a felonious intent is where the party doth it clandestinely; or, being charged with the fact, denies it. But this is by no means the only criterion of criminality: for in cases that may amount to larciny 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.
4. This felonious taking and carrying away must be of the personal goods of another: for if they are things real, or savour of the realty, larciny at the common law cannot be committed of them. Lands, tenements, and hereditaments, either corporeal or incorporeal, cannot in their na
3 Inst. 108, 109.
k See pag. 17.