above the value of twelvepence (which sum was the standard in the time of king Athelstan, eight hundred years ago), is at common law regularly death. Which, considering the great intermediate alteration (s) [*238] in the price or denomination of money, is undoubtedly a very rigorous constitution; and made sir Henry Spelman (above a century since, when money was at twice its present rate) complain, that while every thing else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper (t). It is true, that the mercy of juries will often make them strain a point, and bring in larceny to be under the value of twelvepence, when it is really of much greater value: but this though evidently justifiable and proper, when it only reduces the present nominal value of money to the ancient standard (u), is otherwise a kind of pious perjury, and does not at all excuse our common law in this respect from the imputation of severity, but rather strongly confesses the charge. It is likewise true, that by the merciful extensions of the benefit of clergy by our modern statute law, a person who commits a simple larceny to the value of thirteen pence or thirteen hundred pounds, though guilty of a capital offence, shall be excused the pains of death: but this is only for the first offence. And in many cases of simple larceny the benefit of clergy is taken away by statute; as for horse-stealing in the principals, and accessaries both before and after the fact (w); theft by great and notorious thieves in Northumberland and Cumberland (x); taking woollen cloth from off the tenters (y), or linens, fustians, callicoes, or cotton goods from the place of manufacture (z) (27); (which extends, in the last case, to aiders, assisters, procurers, buyers and receivers); feloniously driving away, or otherwise stealing one or more sheep or other cattle specified in the [*239] *acts, (28) or killing them with intent to steal the whole or any 27. (27) Clergy is restored by 4 Geo. IV. c. 53, which is now repealed by 7 and 8 Geo. IV. c. And by 7 and 8 Geo. IV. c. 28, § 6, it is enacted, "That benefit of clergy with respect to persons convicted of felony, shall be abolished, but that nothing herein contained, shall prevent the joinder, in any indictment, of any counts which might have been joined before the passing of this Act." By statute 7 and 8 Geo. IV. c. 30, § 3, maliciously cutting or destroying any goods or article of silk, woollen, linen, or cotton, or of any such materials mixed, or of any framework-knitted piece, stocking, hose, or lace, being in any loom or frame, or on any machine or engine, rack, or tenter, or any machinery whatsoever belonging to those manufactures, or entering any manufactory, building, or lare, with intent to commit such offences, is by statute 15 Geo. II. c. 27, thrown on the persons in whose custody such goods are found; the failure whereof is, for the first time, a misdemeanor pu nishable by the forfeiture of the treble value; for the second, by imprisonment, also; and the third time it becomes a felony, punished with transpor tation for seven years. (z) Stat. 18 Geo. II. c. 27. Note, in the three last cases an option is given to the judge to transport the offender: for life in the first case, for seven years in the second, and for fourteen years in the third; in the first and third cases instead of sentence of death, in the second after sentence is given. punishable with transportation for life, or not less than seven years, or imprisonment not exceeding four years, with whipping in addi tion to male offenders. The 4 Geo. IV. c. 46, is repealed by 7 and 8 Geo. IV. c. 27. The former statute repealed the capital felony pre scribed by 22 Geo. III. on this subject. By 7 and 8 Geo. IV. c. 29, § 16, stealing te the value of 10s. any silk, woollen, linen, or cotton, or any mixture of such materials, whilst exposed in any stage of manufacture, in any field, or building, or other place, is pu nishable with transportation for life, or not exceeding fourteen years, or imprisonment not exceeding four years, with private or pub lic whipping. (28) Repealed by 7 and 8 Gen. IV. e 27 See the next note. pait of the carcase (a), or aiding or assisting therein (29); thefts on na vigaole rivers above the value of forty shillings (b), or being present, aiding and assisting thereat (30): plundering vessels in distress, or that have suffered shipwreck (c) (31); stealing letters sent by the post (d); and also stealing deer, fish, hares, and conies under the peculiar circumstances mentioned in the Waltham black act (e) (32). Which additiona severity is owing to the great malice and mischief of the theft in some of these instances; and, in others, the difficulties men would otherwise lie under to preserve those goods, which are so easily carried off. Upon which last principle the Roman law punished more severely than other thieves the abiegi, or stealers of cattle (ƒ); and the balnearii, or such as stole the clothes of persons who were washing in the public baths (g); both which constitution seem to be borrowed from the laws of Athens (h). And so too the ancient Goths punished with unrelenting severity thefts of cattle, or corn that was reaped and left in the field: such kind of property (which no human industry can sufficiently guard) being esteemed under the peculiar custody of heaven (i). And thus much for the offence of simple larceny. Mixed or compound larceny is such as has all the properties of the former, but is accompanied with either one or both of the aggravations of a taking from one's house or person. First, therefore, of larceny from the house and then of larceny from the person. 1. Larceny from the house, though it seems (from the considerations mentioned in the preceding chapter) (j) to have a higher degree of guilt than simple larceny, yet it is not at all "distinguished from [240] the other at common law (k); unless where it is accompanied with the circumstance of breaking the house by night; and then we have seen that it falls under another description, viz. that of burglary. But now by several acts of parliament (the history of which is very ingeniously deduced by a learned modern writer (1), who hath shewn them to have gradually arisen from our improvements in trade and opulence), the benefit of clergy is taken from larcenies committed in a house in almost every instance; except that larceny of the stock or utensils of the plate-glass company from any of their houses, &c. is made only a single felony, and liable to transportation for seven years (m). The multiplicity of the general acts is apt to create some confusion; but upon comparing them diligently (29) Vide note (25), ante, 236, where the existing punishments for these offences are set forth. (30) Vide note (20), ante, 235, where the present punishment is described. Clergy was allowed by statute 4 Geo. IV. c. 54, which is now repealed by 7 and 8 Geo. IV. c. 27. (31) By 7 and 8 Geo. IV. c. 29, 18, any person plundering or stealing any part of any hip or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind belonging to such ship or vessel, shall suffer death as a felon; provided that where articles (g) Ibid. t. 17. (h) Pott. Antiq. b. 1. c. 26. (i) Stiernh. de jure Goth. 1. 3, c. 5. (k) 1 Hawk. P. C. 98. (2) Barr. 375, &c. (m) Stat. 13 Geo. III. c. 38. of small value shall be stranded or cast on shore, and stolen, without cruelty, outrage, or violence, the offender may be prosecuted and punished as for simple larceny and in either case the offender may be tried in the county in which the offence is committed, or that next adjoining. The 12 Ann. st. 2, c. 18, and 26 Geo. II. c. 19, so far as they relate to the same subject, were repealed by the 7 and 8 Geo. IV. c. 27. (32) Vide note (3), ante, 144, by whica 1 will appear that the capital telony is remov ed. we may collect, that the benefit of clergy is denied upon the following do mestic aggravations of larceny; viz. First, in larcenies above the value of twelvepence, committed, 1. In a church or chapel, with or without violence, or breaking the same (n); 2. In a booth or tent, in a market or fair, in the day-time or in the night, by violence or breaking the same; the owner of some of his family being therein (o): 3. By robbing a dwelling-house in the day-time (which robbing implies a breaking) any person being therein (p) 4. In a dwelling-house by day or by night, without breaking the same, any person being therein and put in fear (q); which amounts in law to a robbery; and in both these last cases the accessary before the fact is also excluded from his clergy (33). Secondly, in larcenies to the value of five shillings, committed, 1. By breaking any dwelling-house, or any out-house shop, or ware-house thereunto belonging in the day-time, although no person be therein (r); which also now extends to aiders, abettors, and accessaries before the fact (s): 2. By privately stealing goods, [*241] *wares, or merchandise in any shop, ware-house (t), coach-house, or stable, by day or by night; though the same be not broken open, and though no person be therein (u) (34). which likewise extends to such as assist, hire, or command the offence to be committed. Lastly, ir larcenies to the value of forty shillings in a dwelling-house, or its out-houses, although the same be not broken, and whether any person be therein or no; unless committed against their masters by apprentices under the age of fifteen (v). This also extends to those who aid or assist in the commission of any such offence (35), (36). 2. Larceny from the person is either by privately stealing; or by open and violent assault, which is usually called robbery. The offence of privately stealing from a man's person, as by picking his pocket or the like, privily without his knowledge, was debarred of the benefit of clergy, so early as by the statute 8 Eliz. c. 4. (37) But then (n) Stat. 23 Hen. VIII. c. 1. 1 Edw. VI. c. 12. (0) Stat. 5 & 6 Ed. VI. c. 9. 1 Hal. P. C. 522. (33) By 7 and 8 Geo. IV. c. 29, 12, it is enacted, "That if any person shall break and enter any dwelling-house, and steal therein any chattel, money, or valuable security, to any value whatever or shall steal any such property to any value whatever in any dwelling-house, any person therein being put in fear; or shall steal in any dwelling-house, any chattel, money, or valuable security, to the value, in the whole, of 51., or more; every such offender, beng convicted thereof, shall suffer death as a felon." And by 14, breaking into any building, being within the cartilage of a dwelling-house, but not part thereof, and stealing therefrom, is punishable with transportation for life, or not less than seven years, or imprisonment not exceeding four years, with private or public hipping to male offenders. The 23 Hen. VIII. c. 1, § 3; 1 Ed. VI. c. 12, 10; 5 and 6 Ed. VI. c. 9, § 4; 39 Eliz. c. 15; 3 and 4 W. and M. c. 9; 10 and 11 W. III. c. 23; 12 Ann. st. 1, c. 7, § 1 and 2, are all pealed by 7 and 8 Geo IV. c. 27. Vide ante, 23 note (10) e: sog. (r) Stat. 39 Eliz. c. 15. (s) Stat. 3 & 4 W. & M. c. 9. (34) By statute 7 and 8 Geo. IV. c. 29, § 15, persons breaking and entering any shop, warehouse, or counting-house, and stealing therein any chattel, money, or valuable security, are liable to transportation for life, or not less than seven years, or imprisonment not exceeding four years, with private or public whipping for male offenders. (35) Repealed by stat. 7 and 8 Geo. IV. c. 27. The sum mentioned in the text is now raised to five pounds, vide ante, note 33. (36) See ante 224, note 12, and 229 note 2, as to laws of New-York. (37) Repealed by 7 and 8 Geo. IV. c. 27, and see 7 and 8 Geo. IV. c. 28, § 6 and 7; the former enacting that benefit of clergy, with respect to persons convicted of felony, shall be abolished; and the latter, that no person cor victed of felony shall suffer death, unless fo some felony excluded from benefit of clergy before or on the first day of the ther present session of parliament, or made punishable with death by some statute passed after thei day. it must be such a larceny as stands in need of the benefit of clergy, viz of above the value of twelvepence; or else the offender shall not have Judgment of death. For the statute creates no new offence; but only prevents the prisoner from praying the benefit of clergy, and leaves him to the regular judgment of the ancient law (w). This severity (for a most severe law it certainly is) seems to be owing to the ease with which such offences are committed, the difficulty of guarding against them, and the boldness with which they were practised (even in the queen's court and presence) at the time when this statute was made: besides that this is an infringement of property, in the manual occupation or corporal possession of the owner, which was an offence even in a state [242] of nature. And therefore the saccularii, or cutpurses, were more severely punished than common thieves by the Roman and Athenian laws (x) (38). Open and violent larceny from the person, or robbery, the rapina of the civilians, is the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear (y) (39). 1. There must be a taking, otherwise it is no robbery. A mere attempt to rob was indeed held to be felony, so late as Henry the Fourth's time (z): Jut afterwards it was taken to be only a misdemeanor, and punishable with fine and imprisonment; till the statute 7 Geo. II. c. 21, which makes it a felony (transportable for seven years) unlawfully and maliciously to assault another with any offensive weapon or instrument; -or by menaces, or by other forcible or violent manner, to demand any money or goods, with a felonious intent to rob (40). If the thief, having once taken a purse (0) 1 Hawk. P. C. 98. The .ike observation will certainly hold in the cases of horse-stealing, (1 Hal. P. C. 531.) thefts in Northumberland and Cumberland, and stealing woollen cloth from the tenters; and possibly in such other cases where it is provided by any statute that simple larceny, under (38) By 7 and 8 Geo. IV. c. 29, § 6, if any person shall rob any other person of any chattel, money, or valuable security, every such offender, being convicted thereof, shall suffer death. as a felon; and, if any person shall steal ny such property from the person of another, or shall assault any other person with intent to rob him, or shall with menaces or by force demand any such property of any other person, with intent to steal the same, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to transportation for life, or not less than seven years, or to be imprisoned not exceeding four years; with, if a male, public or private whippings. This statute is nearly a consolidation of 3 W. and M. c. 9, § 1, respecting robbery; of 48 Geo. III. c. 129, respecting stealing from the person; and of 4 Geo. IV. c. 54. respecting assaults, &c. with intent to rob. The 23 Hen. VIII. c. 1; 3 W. and M. c. 9; and 1 E. VI. c. 12, relating to robbery; the 48 Geo. III. c. 129, relating to stealing from the person; and the 4 Geo. IV. c. 54, relating to assaults with intent to rob, are repealed by the 7 and 8 Geo. IV. c. 27. The value of the property is immaterial, in all the cases mentioned in the new Act. To constitute a stealing from the person, the thing must be completely emoved from VOL. II. certain circumstances, shall be telony wnnouɩ -- (x) Ff. 47. 11. 7. Pott. Antiq. 1. 1, c. 26 the person; removal from the place where t was, if it remain throughout with the person, is not sufficient. Rex v. Thompson, 1 R. and M. C. C. 78. (39) In New-York, robbery in the first de gree, is the feloniously taking of the persona property of another from his person, or in his presence and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person, and is punishable by imprisonment not less than 10 years in the second degree, it is such taking of sucn property of another in his presence or from his person, but which shall have been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted by the robber at a different time: this last is punishable by im prisonment in the state-prison not more than 10 years. (2 R. S. 677, 56, &c.) Sending, delivering, or making letters threatening to accuse and her of a crime, or to injure the person or property of another with a veiw to extort money, &c. is an attemp to rob, and punishable by like imprisonment for not more than 5 years. (Id. § 58.) (40) By 7 and 8 Geo. IV. c. 29, 7, if any person shall accuse or threaten to accuse any other person of any infamous crime, as d 74 returns at, still it is a robbery; and so it is whether the taking be strictly from the person of another, or in his presence only; as, where a robber by menaces and violence puts a man in fear, and drives away his sheep or his cattle before his face (a). But if the taking be not either directly from his person, or in his presence, it is no robbery (b). 2. It is immaterial of what value the thing taken is: a penny as well as a pound, thus forcibly extorted, makes a robbery (c). 3. Lastly, the taking must be by force, or a previous putting in fear; which makes the violation of the person more atrocious than privately stealing. For, according to the maxim of the civil law (d), “ qui vi rapuit, fur improbior esse videtur." This previous vio lence, or putting in fear, is the criterion that distinguishes robbery [243] from other larcenies For if one *privately steals sixpence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent (e) neither is it capital, as privately stealing, being under the value of twelvepence. Not that it is indeed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear; it is sufficient, if laid to be done by violence (f). And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enough that so much force, or threatening by word or gesture, be used, as might create an apprehension of danger, or induce a man to part with his property without or against his consent (g). Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms and I give it him through mistrust and apprehension of violence, this is a felonious robbery (h). So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted (i), whether the forcing a higler, or other chapman, to sell his wares, and giving him the full value of them, amounts to so heinous a crime as robbery (41). (a) 1 Hal. P. C. 533. (b) Comyns, 478. Stra. 1015. (c) 1 Hawk. P. C. 97. (d) Ff. 4. 2. 14, 12. (e) 1 Hal. P. C. 534. scribed in 9, with a veiw or intent to extort or gain from him, and shall by intimidating him by such accusation or threat, extort or gain from him, any chattel, money, or valuable security, every such offender shall be deemed guilty of robbery, and shall be indicted and punished accordingly. It is equally a robbery to extort money from a person by threatening to accuse him of an unnatural crime, whether the party so threatened has been guilty of such crime or not. Rex v. Gardner, 1 C. and P. 79. (41) And see R. & R. C. C. 146. 1 Leach, 139 193. 278. 3 Chit. C. L. 803. Mr. Jus ice Ashurst says, "The true definition of obbery is the stealing or taking from the person of another; or in the presence of another, property of any amount, with such a degree of force or ter, or, as to induce the party unwilingly to part with his property; and whether terro: arises from real or expected violence to ne person, or from a sense of injury to the character, makes no kind of difference; for to most men the idea of losing their fame and reputation, is equally, if not more terrific, than the dread of personal injury. The principal ingredient in robbery is a man's being forced to part with his property; and the judges are unanimously of opinion, that, upon the prin ciples of law, as well as the authority of for mer decisions, a threat to accuse a man of the greatest of all crimes, is a sufficient force to constitute the crime of robbery by putting in fear." 1 Leach, 280. And fear of loss of character and service upon a charge of sodomitical practices, is sufficient to constitute robbery, though the party has no fear of being taken into custody or of punishment. R. & R. C. C. 375. But if no actual force was used, and at the time of parting with the mǝ ney, the party were under no apprehension but gave it merely for the purpose of bringing the offenders to justice, they cannot be capitally convicted, though we have seen it is otherwise, where personal violence is employ ed. East, P. Č. 734. R. & R. C. C. 408 |