ne.d a burglarious entry; for that is as much closed as the nature of things will permit (h). So also to knock at the door, and upon opening it to rush in, with a felonious intent or under pretence of taking lodgings, to fal upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, hough there was no actual breaking; for the law will not suf- [*227! fer itself to be trifled with by such evasions, especially under the cloak of legal process (i). And so, if a servant opens and enters his master's chamber-door with a felonious design; 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 (k); 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 (1) (17). 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 or another, without breaking in, either by day or by night, with intent to commit felony, or being in such a 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 (m) holding the affirmative, and sir Matthew Hale (n) 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 (18). 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 demon strated 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 murd、r, [*228] (A) 1 Hawk. P. C. 102. 1 Hal. P. C. 552. (2) 1 Hawk. P. C. 102. (k) Stra. 881. 1 Hal. P. C. 553. 1 Hawk. P. C. 13. door with a felonious intent, and whatever would be a breaking of an outer door, will also be a breaking of an inner door to constitute burglary. See 2 East, P. C. 488. But it does not seem to be a burglary to break the doors of cupboards, presses, and closets. Ibid. (17) So if the prisoner breaks open a shop window, and with his hand takes out goods, the offence is complete. Fost. 107. Russ. & Ry. C. C. 499. S. P. Introducing the hand between the glass of an outer window and an inner shutter is sufficient entry to constitute burglary. Russ. & Ry. C. Č. 341. And where several having broken open a house, and attempting to enter, are opposed by the owner and in making a pass at him the hand f one of the party is within the threshold, he oe guilty of burglary. 1 Hale, 553. If, (7) 1 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108. (m) Elm. 65. (n) 1 Hal. P. C. 554. however, an instrument has been thrust into the window, not for the purpose of taking out property, but only calculated to form the aper ture, this will not be regarded as an entry, 1 Leach, 406; or if a house be broken open and the owner through the fear occasioned by the circumstance, throw out his money, the burglary will not be completed. 1 Hale, 555. It seems doubtful whether shooting through a window is sufficient, by the entry of the shot discharged; but it seems the better opinion that it is; as in this case, a felony by killing is as much attempted, as in the introduction of an instrument, a felony by stealing is at tempted. 1 Hale, 555. Hawk. b. 1. c. 38. s." See 4 Camp. 220. 1 Stark. 58. (18) The act now in force is 7 & 8 Ges IV. c. 27. a rape, or any other felony, is burglary; whether the thing be actual ly perpetrated or not. Not does it make any difference, whether the of fence 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 (o) (19). 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 V1. 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 accessaries before the fact (p) (20). And in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime (9). CHAPTER XVII. 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; larceny, 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. Larceny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called 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 (1). (0) 1 Hawk. P. C. 105 (p) Burglary in any house belonging to the plate glass company, with intent to steal the stock or utensile, is by statute 13 Geo. III. c. 38. declared to (19) But if a servant, intrusted by his master to sell goods, receives money to his use, conceals it in the house instead of paying it over, and after his dismissal, breaks the house and steals it, the entry is not burglarious, because there was no felony in the original taking. 1 Show. 53. And even where prisoners were proved to have broken open a house in the night time, to recover teas seized for want of a legal permit, for the use of the person from whom they were taken, an indictment for burglary with intent to steal, was holden not to be supported. 2 East, P. C. 510. 33. (20) All repealed by 7 & 8 Geo. IV. c. 27. (1) By statute 7 and 8 Geo. IV. c. 29, § 2, it is enacted, "That the distinction between grand and petty larceny shall be abolished, and every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the ame incidents in all respects as grand larceny be single felony, and punished with transportation for seven years (21). (g) Pott. Antiq. b. 1, c. 26. was before the commencement of this Act; and every court, whose power as to the trial of larceny was before the commencement of this Act limited to petty larceny, shall have power to try every case of larceny, the punishment of which cannot exceed the punishment hereinafter mentioned for simple larceny, and also to try all accessaries to such larceny." By 3, every person convicted of simple larceny, or of any felony thereby made punish able like simple larceny, shall (except in the cases thereinafter otherwise provided for) be liable to transportation for seven years, or im. prisonment not exceeding two years; and, if maie, to one, two, or three public whippings; and by 4, where the sentence is imprisonment, the courts have a discretionary power to award hard labour or solitary confinement in addition. This observation has been introduced here that the reader may observe, how far the present provisions of the law vary from the text, in his progress through this impor tant chapter, and to remind him that the subʻla And, first, of simple larceny; which, when it is the stealing of gonds above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise (2). I shall therefore first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment inflicted on its two severa branches. Simple larceny then is "the felonious taking, and carrying away, of the personal goods of another." This *offence certainly [*230] 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 seised 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 (a), 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 larceny, as laid down in the foregoing definition. 1. It must be a taking (3). This implies the consent of the owner to (a) See Book II. p. 8, &c. distinctions between grand and petty larceny sre now entirely abolished. By61, in every felony punishable under this Act, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree; and every accessary after the fact, (except only a receiver of stolen property,) shall on convic. tion be liable to imprisonment for any term not exceeding two years; and every person aiding, abetting, counselling, or procuring the commission of any misdemeanor punishable under this Act, shall be liable to be indicted and nished as a principal offender. As to the venue in cases of larceny, see 7 Geo. IV. c. 64, es. 12 and 13. pu (2) In New-York, the stealing, taking, and carrying away the personal property of another of the value of 25 dollars or under, is petit larceny, and punishable by imprisonment in a county jail not more than six months, and by fine not more than 100 dollars. Grand larceny is feloniously taking and carrying away personal property worth more than 25 dollars, and is punishable by imprisonment in a state prison for not more than 5 years. But if grand larceny be committed in a dwelling-house, ship, or other vessel, the imprisonment may be for 8 years: if committed in the night, and from the person of another, it may be for 10 years. (2 R. S. 690, § 1: and 679, § 63, &c.) The severing from the soil of another, proJuce growing thereon worth more than 25 dollars, or from any building, gate, fence, or sther railing or enclosure, any part thereof, ǝr any material of which it is formed of like value, and taking and converting the same to ent's own use with intent to steal, is also Vol. II grand larceny. Stealing public records, &c. is also the same offence: whether the thief be the officer having custody of them or an other; any other than such officer may, how ever, be punished by fine, or by imprisonment in a state-prison or county jail, or by fine and imprisonment. (Ib. 680.) See ib. as to value of property stolen. (3) The cases upon this important requisite of the offence of larceny are so numerous, and the distinctions so subtle, that it will be necessary to go into considerable detail to give a complete view of the law upon the subject. See in general, 3 Chit. Crim. L. 2 ed. 917 to 924. 1st. When offender lawfully acquired the possession of goods, but under a bare charge, the owner still retaining his property in them, the offender will be guilty of larceny at common law in embezzling them. Thus in addition to the instances put by the learned author, of the butler, the shepherd, and guest at an inn, if a master deliver property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or to get change, or deposit with a banker, the servant will be guilty of felony in applying it to his own use, for it still remains in the constructive possession of its owner. 2 Leach, 870. 942; and see_2 East P. C. 563. sed vide East P. C. 562. R. & R. C. C. 215. 4 Taunt. 258. S. C. If a banker's clerk is sent to the money-room to bring cash for a particular purpose, and he takes the opportunity of secreting some for his own use, I Leach, 344. he is guilty of lar ceny, and see 1 Leach, 251. Kel. 33. Cowp 294. And if several persons play together a cards, and deposit money for that purpose, no parting with their property therein, and one 72 be writing. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larceny. As if A lends B a horse, and sweep it all away, and take it to himself, he will be guilty of theft, if the jury find that he acted with a felonious design. I Leach, 270. Cald. 295. So if there be a plan to cheat a man of his property, under colour of a bet, and he parts with the possession only, to deposit as a stake with one of the confederates; the taking by such confederate is felonious. Russ. & Ry. C. C. 413. And if a bag of wheat be delivered to a warehouseman for safe custody, and he take the wheat out of the bag, and dispose of it, it is larceny. Russ. & Ry. C. C. 337. And where a banker's clerk took notes from the till, under colour of a check from a third person, which check he obtained by having entered a fictitious balance in the books in favour of that person, it was held he was guilty of felony; the fraudulent obtaining the check being nothing more than mere machinery to effect his purpose. 4 Taunt. 304. R. & R. C. C. 221. S. C. 2 Leach, C. C. 1083. And where one employed as a clerk, in the day-time, but not residing in the house, embezzles a bill of exchange, which he received from his master in the usual course of business, with directions to transmit it by the post to a correspondent, it was held larceny. 2 East P. C. 565. And see 2 Chit. C. L. 2 ed. 917. b. And where goods have not been actually reduced into the owner's possession, yet if he has intrusted another to deliver then to his servant, and they are delivered accordingly, and the servant embezzle them, he will be guilty of larceny; as where a corn factor having purchased a cargo of oats on board a ship, sent his servant with his barge to receive part of the oats in loose bulk, and the servant ordered some of them to be put into sacks, which he afterwards embezzled, this was holden larceny. 2 East P. C. 1798. 2 Leach, 825. The learned commentator has already noticed the 21 Hen. VIII. c. 7. making the embezzlement of goods above the value of forty shillings, felony, when intrusted to a servant by his master. The act extends only to such persons who were servants to the owner of the goods, both at the time of their delivery, and when they were stolen. 1 Hawk. c. 33. s. 12. 2 East P. C. 562. To bring the case within the act, the goods must have been delivered to the servant to keep for the master, and the words "kept to the use of the mas ter," imply that they are to be returned to the master. 2 East P. C. 562. The act does not extend to goods, the actual property of which vere not in the master at the time, and therefore, it is said, that if the property be chang ed, as by melting the money down, or malting corn, and then it be taken away, it is not within the statute. 1 Hawk. c. 33. s. 15. 2 East P. C. 563. sed quære. See 1 Hawk. c. 33. s. 15. The act only extends to where the owner has actually had them in his possession, and not where his servant has merely receiv Ai them to his use. No wasting or consuming the goods is within the act, however wilful. Hawk b. 1. c. 33 s. 14. პი 2dly. Where the offender unlawfully acquired the possession of goods as by fraud or force, &c. with intent to steal them, the owner still retaining his property in them, such an offender will be guilty of larceny in embezzling them. Therefore in addition to the instances mentioned in the text, hiring a horse on pretence of taking a journey, and immediately selling it, is larceny, because the jury found the de fendant acted animo furandi, in making the contract, and the parting with the possession had not changed the nature of the property. 2 East P. C. 685. 1 Leach, 212; and see 2 Leach, 420. 2 East P. C. 691. So obtaining a horse by pretending another person wanted to hire it to go to B., but in truth with intent to steal it, and not going to B., but tak. ing the horse elsewhere and selling it, is larceny. 1 Leach 409. 2 East P. C. 689. where the prisoner intending to steal the mail bags from a post-office, procured them to be let down to him by a string from the window of the post-office, under pretence that he was the mail guard, he was held guilty of larceny. East P. C. 603. It is larceny for a person hired for the special purpose of driving sheep to a fair, to convert them to his own use, he having the intention so to do at the time of receiving them from the owner. 1 Ry. & M. C. C. 87. And where a man ordered a pair of candlesticks from a silversmith, to be paid for on delivery, to be sent to his lodgings, whither they were sent accordingly, with a bill of parcels, by a servant, and the prisoner contriving to send the servant back under some pretence, kept the goods, it was holden larceny, cited in 2 Leach, 420. And if a sale of goods is not completed, and the pretended purchaser absconds with them, and from the first his intention was to defraud, he is guilty of steal ing, 1 Leach, 92; and to obtain money from another by ring-dropping, is a similar offence, if there was an original design to steal, 1 Leach, 238. 2 Leach, 572: and where the owner of goods sends them by a servant, to be delivered to A., and B. pretending to be A., obtains them from him, B. is guilty of lar ceny. 2 East P. C. 673. So where the pri soner pretending to be the servant of a person who had bought a chest of tea, deposited at the E. I. company's warehouse, got a request paper and permit for the chest, and took it away with the assent of a person in the com pany's service who had the charge of it; this was held felony. R. & Ry. C. C. 163. Sɔ to obtain a bill of exchange from an indorsee under a pretence of getting it discounted, is felony, if the jury find that the party did no intend to leave the bill in the possession of the defendant, previous to receiving the mo ney to be obtained on his credit, and that he undertook to discount with intent to convert it to his own use, 1 Leach, 294; and it seems that if a person procure possession of a house with an intent to steal the lead affixed to it he may be indicted on the 4 Geo. II. c. 32 for the statutable larceny. 2 Leach, 850. In all these cases the deferdant's origina he rides away with him: or, if I send goods by a carr. er, and he carries hem away; these are no larcenies (h). But if the carrier opens a bale or (b) 1 Hal. P. C. 504 design in obtaining the goods was felonious, and the owner never parted with his property therein, for where either is not the case there can be no larceny, as will appear from the folowing instances:-Thus where a house was burning, and a neighbour took some of the goods, apparently to save them from the fames, and afterwards converted them to his own use, it was holden no felony, because the jury thought the original design honest. 1 Leach, 411. notes. And it is certain, that if the property in effects be given voluntarily, whatever false pretence has been used to obtain it, no felony can be committed. 1 Hale P. C. 506. R. & R. C. C. 225. S. P. Thus obtaining silver on pretence of sending a half guinea presently in exchange is no felony. 2 East P. C. 672. So writing a letter in the name of a third person to borrow money, which he obtains by that fraud, is only a misdemeanor, 2 East P. C. 673; and it makes no difference in these cases that the credit was obtained by fraudulently using the name of another, to whom it was intended to be given, 1 Leach, 303. notes. 2 East P. C. 673. R. & R. C. C. 225; and if a horsedealer delivers a horse to another on his promise to return immediately and pay for it, the party's riding off and not returning is no felony. 1 Leach, 467. 2 East P. C. 669. So if a tradesman, sells goods to a stranger as for ready money, and sends them to him by a servant who delivers them, and takes in payment for them bills which prove to be mere fabrica tions, this will be no larceny, though the party took his lodgings for the express purpose of obtaining the goods by fraud, because the owner parted with his property. 2 Leach, 614. So fraudulently winning money at gaming, where the injured party really intended to play, is no larceny, though a conspiracy to defraud appear in evidence. 2 Leach, 610. So brokers, bankers, or agents embezzling securities deposited with them for security or any special purpose, are not guilty of larceny, 4 'Taunt. 258. 2 Leach, 1054. R. & R. Č. C. 215. S. C.; but this decision occasioned the 52 Geo. III. c. 63. to be passed, making it a misdemeanor in brokers, bankers, and others, lo embezzle securities deposited with them for safe custody or for any special purpose, in violation of good faith, and contrary to the pecial purpose for which they were deposit ei, see the act, infra. Thus in all cases where a luntary delivering by the prosecutor is the defence to be relied on, two questions arise, first, whether the property was parted with by the owner, secondly, whether supposing it was not, whether the prisoner at the time he obtained it conceived a felonious design. In the first case, no fraud or breach of trust can make a conversion larceny; in the second, the complexion of the offence must depend on the felonious design. 3diy Where offende lawfully acquired pospagsum and qualified property in goods, under colour of bailment, but with intention of stealing them, and privity of the bailment has been d termined either by wrongful act of offender or by intention of parties, if he afterwards embezzle such goods, he will be guilty of larceny. For in the first case, after the determination of the special contract by any plain and unequivocal wrongful act of the bailee, inconsistent with that contract, the property, as against the bailee, reverts to the owner, although the ac tual possession remain in the bailee. East P C. 691. 627. The most remarkable case o this description is that of a carrier pointed ou by the learned commentator. So the conver sion of money with a felonious intent, which was found in a bureau delivered to a carpenter to be repaired, by breaking it open, when there was no necessity for so doing, for the purpose of repairs, will amount to a larceny, 8 Ves 405. 2 Leach, 952. 2 Russ. 1045; and in the same case it was said, that if a pocket book containing bank notes were left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket and the notes out of the pocket-book with a felonious intent, it would amount to a felony, If the master and owner of a ship steal some of the goods delivered to him to carry, it is not larceny in him, unless he took the goods out of their package: nor if larceny, would it be an offence within 24 Geo. II. c. 45. R. & R. C. C. 92. And if corn be sent to a miller to grind, and he take part of it, he will be guilty of felony, 1 Roll. Abr. 73; but where forty bags of wheat were sent to prisoner, a ware houseman, for safe custody, until sold by prosecutor, and prisoner's servant, by direction of prisoner, emptied four of the bags and mixed their contents with other inferior wheat, and part of mixture was disposed of by pri soner, and remainder was placed in prosecu tor's bags, which had thus been emptied, and there was no severing of any part of wheat in any one bag with intent to embezzle that part only which was so severed, the prisoner was held guilty of larceny in taking the wheat out of the bag. R. & R. C. C. 337 And where property which prosecutors had bought was weighed out in the presence o. their clerk, and delivered to their carter's ser vant to cart, who let other persons take away the cart and dispose of the property for his benefit, jointly with that of the other persons it was held, that the carter's servant was not guilty of a mere breach of trust, but that he as well as the other persons were guilty of larceny at common law. Russ. & Ry. C. C 125; and see 2 East P. C. 568 to 574, 695 to 698. But in all these cases the defendant must have had an intention of stealing the pro perty at the time it was delivered to him. R. & R. C. C. 441. over-ruling 2 East P. C. 690. 694 2 Russ. 1089, 90. 1 R. & M. C. C. 87. 4thly. Where the offender has the qualified property and actual possession of the gods at the time of the embezzlement, he will not be |