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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) (k) to have a higher degree of guilt than simple larceny, yet it is not at all *distinguished from the other at common [*240] law; (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, (m) who hath shown them to have gradually arisen from our improvements in trade and cpulence), 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. (n) The multiplicity of the general acts is apt to create some confusion; but upon comparing them diligently we may collect, that the benefit of clergy is denied upon the following domestic 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; (0) 2. In a booth or tent, in a markts or fair, in the day-time or in the night, by violence or breaking the same; the owner or some of his family being therein: (p) 3. By robbing a dwelling-house in the day-time (which robbing implies a breaking), any person being therein: (g) 4. In a dwelling-house by day or by night, without breaking the same, any person being therein put in fear; (r) which amounts in law to a robbery; and in both these last cases the accessory before the fact is also excluded from his clergy. Secondly, in larcenies to the value of five shillings, committed, 1. By breaking any dwelling-house or any outhouse, shop, or warehouse thereunto belonging in the day-time, although no person be therein; (s) which also now extends to aiders, abettors, and accessories before the fact: (t) 2. By privately stealing goods, *wares, or mer[*241] chandise in any shop, warehouse, (u) coachhouse, or stable, by day or by night; though the same be not broken open, and though no person be therein: (v) which likewise extends to such as assist, hire, or command the offence to be committed. Lastly, in larcenies to the value of forty shillings in a dwellinghouse, or its outhouses, 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. (w) This also extends to those who aid or assist in the commission of any such offence. (12)

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. But then it must be such a larceny as stands in need of the benefit of clergy, viz., of above the value of twelvepence; 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.(x) This severity (for a most severe law it certainly is) seems to be owing to the

(1) 1 Hawk. P. C. 98.

(m) Barr. 375, &c. 1 Hal. P. C. 518.

(k) See page 223. (n) Stat. 13 Geo. III, c. 38. (0) Stat. 23 Hen. VIII, c. 1. 1. Edw. VI, c. 12. (p) Stat. 5 and 6 Edw. VI, c. 9. 1 Hal, P. C. 522. (q) Stat. 3 and 4 W. and M. c. 9. (r) Ibid. (8) Stat. 39 Eliz. c. 15. (t) Stat. 3 and 4 W. and M. c. 9. (u) See Foster, 78. Barr. 379. (v) Stat. 10 and 11 Wm III, c 23. (w) Stat. 12 Ann. st. 1, c. 7. (x) 1 Hawk. P. C. 98. The like observation will certainly hold in the cases of horse-stealing (1 Hal. P C. 531), thefts in Northumberland and Cumberland, and stealing woolen cloths from the tenders; and possibly in such other cases where it is provided by any statute that simple larceny under certain circumstances shall be felony without benefit of clergy.

(12) See, as to this offence, statute 24 and 25 Vic. c. 96.

ease with which such offences are committed, the difficulty of guarding against them, and the boldness with which they were practiced (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 of nature. And therefore the saccularii, or cut-purses, were more severely punished than common thieves by the Roman and Athenian laws. (y) (13)

[*242 ]

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. (2) I. 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: (a) but 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 attempt to rob. If the thief, having once taken a purse, returns it, 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. (b) But if the taking be not either directly from his person, or in his presence, it is no robbery. (c) 2. It is immaterial of what value the thing taken is: a penny as well as a pound, thus forcibly extorted, makes a robbery. (d) 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 (e) “qui vi rapuit, fur improbior esse videtur." This previous violence, or putting in fear, is the criterion that distinguishes robbery 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 sub[ *243 ] sequent: (f) 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. (g) 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. () 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. (i) So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted, (j) 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. (14)

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(13) This subject is also covered by statute 24 and 25 Vic. c. 96. If a robbery is committed, being armed, or by more than one person, and with personal violence, the punishment may be penal servitude for life; in other cases it is limited to penal servitude for not more than fourteen nor less than three years, or to imprisonment not more than two years.

(14) [And see R. and R. C. C. 146; 1 Leach, 139, 193, 278; 3 Chit. Cr. L. 803. Mr. Justice Ashurst says: "The true definition of robbery 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 terror, as to induce the party unwillingly to part with his property; and whether terror

This species of larceny is debarred of the benefit of clergy by statute 23 Hen. VIII, c. 1, and other subsequent statutes, not indeed in general, but only when committed in a dwelling-house, or in or near the king's highway. A robbery, therefore, in a distant field or foot-path, was not punished with death; (k) but was open to the benefit of clergy, till the statute 3 and 4 W. and M. c. 9, which takes away clergy from both principals and accessories before the fact, in robbery, wheresoever committed.

II. Malicious mischief, or damage, is the next species of injury to private property, which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another's loss; which is some though a weak excuse: but either out of a spirit of wanton cruelty, or black and diabolical revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now by a multitude of statutes made penal in the highest degree. Of these I shall extract the contents in order of

time.

(k) 1 Hal. P. C. 535.

arises from real or expected violence to the 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 principles of law, as well as the authority of former 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. and R. C. C. 375. But if no actual force was used, and, at the time of parting with the money, 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 employed. 1 East, P. C. 734; R. and R. C. C. 408. And the influence exercised over the mind, where the force is merely constructive, must be of such kind as to disenable the prosecutor to make resistance. 2 Leach, 721; 6 East, 126. So that a threat to take an inrocent person before a magistrate, and thence to prison, without charging him with any specific crime, is not sufficient to make the party a robber, if he obtain money to induce him to forbear. 2 Leach, 721. Indeed it has been said that the only instance in which a threat will supply the place of force is an accusation of unnatural practices. 2 Leach, 730, 731; id. 139; 2 Russ. 1009. And it has recently been held, contrary, it seems, to the principle of some former decisions, that, even in this case, the money must be taken immediately on the threat, and not after time has been allowed to the prosecutor to deliberate and advise with friends as to the best course to be pursued: 1 East, P. C. Append. xxi: though as some of the judges dissented, it does not seem to be decisive. Where, on the other hand, there is an immediate threat of injury to the property, as by pulling down a house with a mob in a time of riots, which produces great alarm, and induces a man to part with his money, this has been holden to be a sufficient putting in fear to constitute a robbery. 2 East, P. C. 729, 731. And if a man assaults a woman with intent to commit a rape, and she, in order to prevail on him to desist, offers him money, which he takes, but continues his endeavors till prevented by the approach of a third person, he will be guilty of robbery, though his original intent was to ravish. 1 East, P. C. 711. If thieves meet a person and, by menaces of death, make him swear to bring them money, and he, under the continuing influence of fear for his life, complies, this is robbery in them, though it would not be so if he had no personal fear, and acted merely from a superstitious regard to an oath so extorted. 1 East, P. Č. 714. In the absence of force, to constitute robbery the fear must arise before and at the time of the property being taken; it is not enough that it arises afterwards; and where the prisoner by stealth took some money out of the prosecutor's pocket, who turned round, saw the prisoner, and demanded the money, but the prisoner threatening him, he desisted through fear from making any farther demand, it was held no robbery. Roll. Rep. 154; 1 Hale, 534.

To constitute a robbery, where an actual violence is relied on, and no putting in fear can be expressly shown, there must be a struggle, or at least a personal outrage. So that to snatch property suddenly from the hand, to seize a parcel carried on the head, to carry away a hat and wig without force, and to take an umbrella of a sudden, have been respectively holden to be mere larcenies. 1 Leach, 200, 291, and in notes. But where a man snatched at the sword of a gentleman hanging at his side, and the latter, perceiving the design, laid hold on the scabbard, on which a contest ensued, and the thief succeeded in wresting the weapon from the owner, his offence was holden to be robbery. Id. Snatching an article from a man will

*And, first, by statute 22 Hen. VIII, c. II, perversely and maliciously to cut down or destroy the powdike, in the fens of Norfolk and Ely, is [*244] felony. And in like manner it is, by many special statutes enacted upon the occasions, made felony to destroy the several sea-banks, river-banks, public navigations, and bridges, erected by virtue of those acts of parliament. (15) By statute 43 Eliz. c. 13 (for preventing rapine on the northern borders), to burn any barn or stack of corn or grain; or to imprison or carry away any subject, in order to ransom him, or to make prey or spoil of his person or goods upon deadly feud or otherwise, in the four northern counties of Northumberland, Westmoreland, Cumberland, and Durham, or being accessory before the fact to such carrying away or imprisonment; or to give or take any money or contribution, there called blackmail, to secure such goods from rapine; is felony without benefit of clergy. By statute 22 and 23 Car. II, c. 7, maliciously, unlawfully, and willingly, in the night time, to burn, or cause to be burnt or destroyed, any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns; or to kill any horses, sheep, or other cattle, is felony; but the offender may make his election to be transported for seven years; and to maim or hurt such *horses, sheep, or other cattle, is a trespass for which treble damages shall be recovered. By statute 4 and 5 W. and M. c. 23, to burn on any [ *245] waste, between Candlemas and Midsummer, any grig, ling, heath, furze, goss, or fern, is punishable with whipping and confinement in the house of correction. By statute 1 Ann. st. 2, c. 9, captains and mariners belonging to ships, and destroying the same, to the prejudice of the owners (and by 4 Geo. I, c. 12, to the prejudice of insurers also), are guilty of felony without benefit of clergy. And by statute 12 Ann. st. 2, c. 18, making any hole in a ship, in distress, or stealing ner pumps, or aiding or abetting such offences, or wilfully doing any thing tending to the immediate loss of such ship, is felony without benefit of clergy. By statute 1 Geo. I, c. 48, maliciously to set on fire any underwood, wood, or coppice, is made single felony. By statute 6 Geo. I, c. 23, the wilful and malicious tearing, cutting, spoiling, burning, or defacing of the garments or clothes of any persons passing in the streets or highways, with intent so to do, is felony. This was occasioned by the insolence of certain weavers and others; who, upon the introduction of some Indian fashions prejudicial to their own manufactures, made it their practice to deface them; either by open outrage, or by privily cutting, or casting aqua fortis in the streets upon such as wore them. By statute 9 Geo. I, c. 22, commonly called the Waltham black act, occasioned by the devastations committed near Waltham in Hampshire, by persons in disguise

constitute robbery if it is attached to his person or clothes so as to afford resistance; and therefore, where the prosecutor's watch was fastened to a steel chain which went round his neck, and the seal and chain hung from his fob, and the prisoner laid hold of the seal and chain and pulled the watch from the fob, but the steel chain still secured it, and by two jerks the prisoner broke the steel chain, and made off with the watch, it was held a robbery, for the prisoner did not get the watch at once, but had to overcome the resistance the steel chain made, and actual force was used for that purpose. R. and R. C. C. 419. And where a heavy diamond pin, with a corkscrew stalk, which was twisted and strongly fastened in a lady's nair, was snatched out, and part of the hair torn away, the judges came to a similar decision 1 Leach, 335. The case of the man who tore an ear-ring from the ear, and in so doing lacerated the flesh, serves also to confirm this position. 1 Leach, 320. Nor will it excuse the violence that it was done under pretence of law; for where a bailiff handcuffed a prisoner and used her with great cruelty, for the purpose of extorting money from her, he was holden to be guilty; as were also a number of men for seizing a wagon under pretence that there was no permit, when none was in reality necessary. 1 Leach, 280; 1 East, P. C. 709.]

That extorting money or other thing of value by means of a charge of sodomy may be robbery, see People v. McDaniels, 1 Parker, 198. But this is an exceptional case, and it is held not robbery to extort money by means of the charge of any other offence, as for instance, forgery. Long v. State, 12 Geo. 293; Britt v. State, 7 Humph. 45. Obtaining money from a woman ander a threat to accuse her husband of an indecent assault, was held not to be robbery in Rex 9. Edwards, 5 C. and P. 518; 1 Moo. and R. 257.

(15) See as to this offence statute 24 and 25 Vic. c. 97. The same statute provides generally for other offences mentioned in this paragraph.

VOL. II.-57

449.

or with their faces blacked (who seem to have resembled the Roberdsmen, or followers of Robert Hood, that in the reign of Richard the First committed great outrages on the borders of England and Scotland); (7) by this black act, I say, which has in part been mentioned under the several heads of riots, menaces, mayhem, and larceny, (m) it is farther enacted, that to set fire to any house, barn, or outhouse (which is extended by statute 9 Geo. III, c. 29, to the *malicious and wilful burning or setting fire to all kinds of mills), or [ *246] to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or unlawfully and maliciously to break down the head of any fish pond, whereby the fish shall be lost or destroyed; or in like manner to kill, maim, or wound any cattle; or cut down or destroy any trees planted in an avenue, or growing in a garden, orchard, or plantation, for ornament, shelter, or profit; all these malicious acts, or procuring by gift or promise of reward any person to join them therein, are felonies without benefit of clergy; and the hundred shall be chargeable for the damages, unless the offender be convicted. In like manner by the Roman law to cut down trees, and especially vines, was punished in the same degree as robbery. (n) By statutes 6 Geo. II, c. 37, and 10 Geo. II, c. 32, it is also made felony, without the benefit of clergy, maliciously to cut down any river or sea-bank, whereby lands may be overflowed or damaged; or to cut any hop-binds growing in a plantation of hops, or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or depth of coal. By statute 11 Geo. II c. 22, to use any violence in order to deter any person from buying corn or grain; to seize any carriage or horse carrying grain or meal to or from any market or sea port; or to use any outrage with such intent; or to scatter, take away, spoil, or damage such grain or meal; is punished for the first offence with imprisonment and public whipping: and the second offence, or destroying any granary where corn is kept for exportation, or taking away or spoiling any grain or meal in such granary, or in any ship, boat, or vessel intended for exportation, is felony, subject to transportation for seven years. By statute 28 Geo. II, c. 19, to set fire to any gos, furze, or fern, growing in any forest or chase, is subject to a fine of five pounds. By statutes 6 Geo. III, cc. 36 and 48, and 13 Geo. III, c. 33, wilfully to spoil or destroy any timber or other trees, roots *shrubs, or plants, is for the two first offences liable to pecuniary penal[ *247 ] ties; and for the third, if in the day time, and even for the first, if at night, the offender shall be guilty of felony, and liable to transportation for seven years. By statute 9 Geo. III, c. 29, wilfully and maliciously to burn or destroy any engine or other machines, therein specified, belonging to any mine; or any fences for inclosures pursuant to any act of parliament, is made single felony, and punishable with transportation for seven years, in the offender, his advisers, and procurers. And by statute 13 Geo. III, c. 38, the like punishment is inflicted on such as break into any house, &c., belonging to the plate-glass company, with intent to steal, cut, or destroy, any of their stock or utensils, or wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief.

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III. Forgery, (16) or the crimen falsi, is an offence, which was punished by the civil law with deportation or banishment, and sometimes with death. (0) It

(2) 3 Inst. 197.

(m) See pages 144, 208, 235, 240.

(n) Ff. 47, 7, 2.

(0) Inst. 4, 18, 7.

(16) [FORGERY. We will endeavor to elucidate the nature of, and what constitutes, this offence, by considering. 1. What false making is sufficient: 2. With what intent the forgery must be committed; and, 3. How far the instrument forged must appear to be genuine. The consideration of what instruments may be the subjects of forgery will follow.

I. WHAT FALSE MAKING IS SUFFICIENT. It is not necessary that the whole instrument should be fictitious. Making a fradulent insertion, alteration, or erasure, in any material part of a true document, by which another may be defrauded; the fraudulent application of a false signature to a true instrument, or a real signature to a false one; and the alteration of a date of a bill of exchange after acceptance, by which its payment may be accelerated, are forgeries. 1 Hale, 683-685; 4 T. R. 320. Altering a bill from a lower to a higher sum is forging it; and a person may be indicted on the 7 Geo. c. 22, for forging such an instru

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