plain that, while every thing else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper." 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 twelve pence, 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, 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 offense, shall be excused the pains of death; but this is only for the first offense." And in many cases of simple larceny the benefit of clergy is taken away by statute; as from horse-stealing in the principals, and accessories both before and after the fact;w theft by great

(22) But now, as has already been repeatedly mentioned, the distinctions in our law between grand and petit larceny, and arising from the "benefit of clergy," are altogether abolished; and by the stat. 7 & 8 Geo. IV., c. 29, s. 3, every person convicted of simple larceny, or of any felony by that act made punishable as simple larceny, is liable to transportation for seven years, or to imprisonment not exceeding two years, and (if a male) to whipping.

(23) The 7 & 8 Geo. IV., c. 29, s. 25, enacted, that if any person should steal any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, or should willfully kill any such cattle, with intent to steal the carcass or skin, or any part of the cattle so killed, he should be guilty of felony, and punishable with death. The 2 & 3 Will. IV., c. 62, reduced the punishment to transportation for life; the 3 & 4 Will. IV., c. 44, s. 3, empowered the court to award imprisonment before such transportation; but the 1 Vict., c. 90, s. 1, has now repealed so much of those acts as relates to the punishment of these offenses, and subjected them to transportation for any term not exceeding fifteen nor less than ten years, or imprisonment for any term not exceeding three years.

As to what is a sufficient carrying or driving away of the animal to constitute the larceny, see 2 East, P. C., 617, and

w Stat. 1 Edw. VI., c. 12; 2 & 3 Edw. VI., c. 33; 31 Eliz., e. 12.

1 Mood., C. C., 107. If the animal stolen
be one of those specifically mentioned in
the statute, it must be alleged and prov-
ed to be of that particular description,
for the enumeration in the statute of the
several kinds distinguishes them from one
another. Thus, upon an indictment on
the repealed statute 15 Geo. II., c. 34
(which mentioned both cows and heif-
ers), an indictment for stealing a cow
was held not to be supported by proof
of stealing a heifer. 2 East, P. C., 616;
1 Leach, 105. So on an indictment for
stealing sheep, the proof being of steal-
ing lambs or ewes, 1 Mood., C. C., 160,
247; sed quære, sheep being a generic
term, including "ram,"
"ewe," or

lamb;" see 2 Mood., C. C., 34; 6 C. & P., 535. But an indictment for stealing a colt, or filly, would be supported by evidence of stealing a foal, because colt, or filly, means a young horse, or mare, and a foal is not specifically mentioned in the statute. Russ. & Ry., C. C., 494.

Upon an indictment on the latter branch of the clause, for killing the animal with intent to steal part of the carcass, if the death-wound were given before the carrying away of the part of the carcass, though the animal did not die till afterward, it would be sufficient. Russ. & Ry., C. C., 387; 2 Mood., C. C., 29; 8 C. & P., 291. And though the indictment charge an intent to steal the whole carcass, proof that the defendant intended to steal a part only is sufficient to sustain it. 1 Mood., C. C., 107.

a

and notorious thieves in Northumberland and Cumberland ;x" [240] taking woolen cloth from off the tenters, or linens, fustians, calicoes, or cotton goods from the place of manufacturez (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 acts, or killing them, with intent to steal the whole or any part of the carcass, or aiding or assisting therein; thefts on navigable rivers above the value of forty shillings, or being present, aiding, and assisting thereat;" plundering vessels in distress, or that have suffered shipwreck ;c27 stealing letters sent by the post;d and, also, stealing deer, fish, hares, and coneys, under the peculiar circumstances mentioned in the Waltham Black Act. Which additional severity is owing to the great malice and mischief of the theft in some instances; and, in others, to the difficulties men would otherwise lie under to preserve those goods which are so easily carried off. Upon which last

* Stat. 18 Car. II., c. 3.

Stat. 22 Car. II., c. 5. But, as it sometimes is difficult to prove the identity of the goods so stolen, the onus probandi with respect to innocence is now, 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 punishable by the forfeiture of the treble value; for the second, by imprisonment also; and the third time it becomes a felony, punished with transportation for seven years.

27.

Stat. 18 Geo. II., c. 27. Note, in (24) Repealed by 7 & 8 Geo. IV., c.

(25) By 7 & 8 Geo. IV., c. 29, s. 16, the stealing to the value of 10s., of any goods or article of silk, woolen, linen, or cotton, or of any one or more of those materials mixed with each other, or with any other material, while laid, placed, or exposed, during any stage, process, or progress of manufacture, in any building, field, or other place, is punishable with transportation for life or not less than seven years, or imprisonment (with whipping, if a male) not exceeding four years. See Russ. & Ry., C. C., 53. Goods are in "a stage, process, or progress of manufacture," within the statute, until they are brought into a condition for sale, although the texture be complete. 1 M. & Rob., 549.

(26) By 7 & 8 Geo. IV., c. 29, s. 17, the stealing of any goods or merchandise in any vessel, barge, or boat of any description, in any port of entry or discharge, or upon any navigable river or

the last three 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.

a Stat. 14 Geo. II., c. 6; 15 Geo. II., c. 34; see vol. i., page 88.

b Stat. 24 Geo. II., c. 45.

Stat. 12 Ann., st. 2, c. 18; 26 Geo.
II., c. 19.

d Stat. 7 Geo. III., c. 50.
e Stat. 9 Geo. I., c. 22.

canal, or in any creek belonging to or
communicating with any such port, river,
or canal; or of any goods or merchandise
from any dock, wharf, or quay adjacent
to any such port, river, canal, or creek,
is subjected to transportation for life, or
not less than seven years, or imprison-
ment not exceeding four years, and (if a
male) whipping. The property must be
such as is usually deposited in ships or
on wharves, and not as is attached to the
person; the same principle which applies
to the stealing in a dwelling-house being
applicable to the places protected by
this statute. Fost., 79, n.; Leach, 52.
The luggage of a passenger going by a
steam-boat is within the statute. 7 C.
& P., 159. A man can not be guilty of
this offense in his own ship. Russ. &
Ry., C. C., 92.

principle the Roman law punished more severely than other thieves the abigei, or stealers of cattle,f and the balnearii, or such as stole the clothes of persons who were washing in the public baths;g both which constitutions seem to be borrowed from the laws of Athens. 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. And thus much for the offense of simple larceny.

Mixed or compound larceny is such as has all the properties Compound of the former, but is accompanied with either one or both of larceny. 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.

house.

1. Larceny from the house, though it seems (from the consid- [241] erations mentioned in the preceding chapteri) to have a higher 1. Larceny degree of guilt than simple larceny, yet is not at all distin- from the guished from 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, who hath shown 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. 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 twelve pence, committed, 1. Above 1. In a church or chapel, with or without violence, or break- value of 12d. ing the same ;n" 2. In a booth or tent in a market or fair, in the in booths of

Ff., 47, t. 14.

Ibid., t. 17.

h Pott., Antiq., b. 1, c. 26.

i Stiernh., De Jure Goth., 1. 3, c. 5. j See page 223.

k 1 Hawk., P. C., 98.

1 Barr., 375, &c.

m Stat. 13 Geo. III., c. 38.

Stat. 23 Hen. VIII., c. 1; 1 Edw.
VI., c. 12; 1 Hal., P. C., 518.

(30) None of the offenses mentioned fender should suffer death as a felon. in the text, under this head of "larceny The punishment for this offense was refrom the house," are now capital. With duced, by 5 & 6 Will. IV., c. 81, to transreference to this, of larceny in a church portation for life or not less than seven or chapel, the 7 & 8 Geo. IV., c. 29, s. years, or imprisonment not exceeding 10, enacted, that if any person should four years; and now, by 6 & 7 Will. IV., break and enter any church or chapel, c. 4, the term of imprisonment can not and steal therein any chattel, or, having exceed three years. The act does not stolen any chattel in any church or chap- extend to dissenting chapels. 6 C. & el, should break out of the same, the of- P., 335, n.; 7 C. & P., 442. It is not

in churches;

tents at fairs;

by house

breaking in daytime,

being in it;

in house without breaking, any person

being in it,
and putting

in fear.
2. Above

daytime or in the night, by violence or breaking the same, the owner or some of his family being therein; 3. By robbing a dwelling-house in the daytime (which robbing implies a breakany person ing), 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, which amounts in law to 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 out-house, shop, or ware-house thereunto belonging, in the daytime, although no person be therein, which also now extends to aiders, abettors, and accessories before the fact; 2. By house, &c., privately stealing goods, wares, or merchandise in any shop, in daytime, ware-house,t coach-house, or stable, by day or by night, though being in it; the same be not broken open, and though no person be therein;" privately which likewise extends to such as assist, hire, or command stealing, though the offense to be committed. Lastly, in larcenies to the value house not of forty shillings in a dwelling-house, or its out-houses, although broken, or the same be not broken, and whether any person be therein or no, unless committed against their masters by apprentices un

value of 5s.,

[242]

in breaking

no person

no person be in it.

3. To value

of 408., though house not

broken, or

no person in

it.

confined to articles used for the purposes
of divine service. Russ. & Ry., C. C.,

386.

27.

Stat. 39 Eliz., c. 15.

Stat. 3 & 4 W. & M., c. 9. * See Fost., 78, 79; Barr., 379. "Stat. 10 & 11 Will. III., c. 23.

for the same offense, or on an indictment for burglary, house-breaking, or stealing to the value of £5 in a dwelling-house, containing a separate count

(31) Repealed by 7 & 8 Geo. IV., c. for such offense. As to what are to be

(32) See infra, n. (34).

deemed buildings within the curtilage of a dwelling-house, see ante, p. 224, n. (11), and Russ. & Ry., C. C., 289, 334, 357, 360, 495.

And by the 7 & 8 Geo. IV., c. 29, s. 15, and 1 Vict., c. 90, s. 2, the breaking and entering of a shop, ware-house, or counting-house, and stealing therein any chattel, money, or valuable security, is subject, also, to the like punishment. It seems that a ware-house, to be within the act, must be such as traders or factors keep their goods in for sale, and where customers go to view them; not such as is used merely for the safe-keeping of goods. Fost., 77, 78; 1 Leach, 287. And a shop must be a shop for the sale of goods, not a mere work-shop. 9

(33) By 7 & 8 Geo. IV., c. 29, s. 12, and 1 Vict., c. 90, s. 1, the breaking and entering any dwelling-house, and stealing therein any chattel, money, or valuable security toa ny value whatever, is felony, punishable by transportation for any term not exceeding fifteen nor less than ten years, or imprisonment for not exceeding three years. And by 7 & 8 Geo. IV., c. 29, s. 14, and 1 Vict., c. 90, s. 2, the same punishment attends the breaking and entering any building and stealing therein any chattel, money, or valuable security, such building being within the curtilage of a dwelling-house C. & P., 79. Upon the repealed stat. and occupied therewith, but not being part thereof according to the provisions therein before mentioned (not having a communication with the house, either immediate or by a covered and inclosed passage, see 7 & Geo. IV., c. 29, s. 13, ante, p. 224, n. 11), upon the conviction of the offender, either on an indictment 334.

10 & 11 Will. III., c. 23, it was held that the goods stolen must appear to have been either the actual property of the owner of the shop, &c., or at least such as were left with him for sale, and were exposed or intended to be exposed for sale. 2 East, P. C., 642; 1 Leach,

der the age of fifteen. This also extends to those who aid or assist in the commission of any such offense."

2. Larceny from the person is either by privately stealing, 2. Larceny or by open and violent assault, which is usually called rob- from person; bery.

stealing;

The offense of privately stealing from a man's person, as by privately 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 twelve pence, else the offender shall not have judgment of death. For the statute creates no new offense, 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

See ante, p. 225, n. *. The principal offense is the breaking of the house, for which the statutes of New York provide punishment, as well when the crime is committed in the daytime as in the nighttime. When the larceny is committed