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a very considerable amount, but it was not shown that he had ever taken to the amount of 408. at any one particular time, upon an indictment under the 12 Anne, c. 7, the Court held that the property stolen must not only be in the whole of such a value as the law requires to constitute a capital offence, but that it must be stolen to that amount at one and the same time; that a number of distinct petty larcenies could not be combined so as to constitute grand larceny, nor could any distinct number of grand larcenies be added together, so as to constitute a capital offence. Petrie's case, i Leach, 295. And the same was ruled by Ashurst, J., in a subsequent case. Farley's case, 2 East, P. C. 740. But it may vary the consideration, if the property of several persons lying together in one bundle or chest, or even in one house, be stolen together, at one time; for there the value of all may be put together, so as to make it grand larceny, or to bring it within a statute which aggravates the punishment, for it is one entire felony. 2 East, P.C. 740. And where the property was stolen at one time to the value of 408., and a part of it only, not amounting to 408. was found upon the prisoner, the Court left it to the jury to say, whether the prisoner had not stolen the remainder of the property, which the jury accordingly found. Hamilton's case, 1 Leach, 348, 2 Russell, 53.
Where the prisoner, who was in the prosecutor's service, stole a quantity of lace in several pieces, which were not separately worth 5l., and brought them all out of his master's house at one time, Bolland, J., held that the offence was made out, although it was suggested that the prisoner might have stolen the lace a piece at a time. Jones' case, 4 C. and P. 217 (a). The learned baron inentioned a case tried before Garrow, B., where it appeared that the articles which were separately under the value of 5l., were in fact stolen at different times, but were carried out of the house all at once, and the latter learned judge held, after much consideration, that as the articles were brought out of the house all together, the offence (which was then capital) was committed.
Proof of the stealing being in a dwelling-house. The same evidence wbich is adduced in indictments for burglary, or house-breaking, [ *388 ) vide supra, will be sufficient proof of the premises being a *dwelling-house upon this indictment, and the 13th section of the 7 & 8 Geo. 4, c. 29, extends to this as well as the above mentioned offences. Vide ante,
See Turner's case, 6 C. and P. 407 (6). Several cases have been decided upon the repealed statute, 12 Anne, c. 7, (the words of which are in substance the same as those used in the 7 and 8 Geo. 4, c. 29,) with regard to the occupation of the house in which the offence has been committed. Thus it has been held that the words do not include a stealing in a man's own house, on the ground that the statute was not intended to protect property, which might happen to be in a dwelling-house, from the owner of the house, but from the depredation of others. Thompson's case, 1 Leach, 338; 2 East, P. C. 644. So where a wife was indicted for this offence, and it appeared that the house was the house of her husband, the judges were unanimously of opinion, that the prisoner could not be convicted of the capital part of the charge, inasmuch as the dwelling-house of her husband must be con
strued to be her dwelling-house, and the statute evidently meant the house of another. Gould's
's case, 1 Leach, 339 (n.); 2 East, P. C. 644. But the house in which a person lodges merely is not his dwellinghouse, so as to prevent the commission of this offence in it by him.
Therefore, where a lodger invited the prosecutor to take part of his bed, without the knowledge of his landlord, and stole his watch from the bed head, it was held by the judges that he was properly convicted of stealing in a dwelling-house. Taylor's case, R. and R. 418 (a). So where goods were left by mistake at a house at which the prisoner lodged, and were placed in his room, and carried away by hiin, they were held to be within the protection of the house. Carroll's case, 1 Moody, C. C. 89 (6)
So if a man on going to bed, put his clothes and money by his bedside, these are under the protection of the dwelling-house, and not of the person. Thomas' case, Car. Sup. 295. So where a man went to bed with a prostitute, having put his watch in his hat on a table, and the woman stole the watch while the man was asleep, Parke, B., and Patteson, J., after referring to Taylor's case, supra, were of opinion, that the prosecutor having been asleep when the watch was taken by the prisoner, it was sufficiently under the protection of the house to bring it within the statute. Hamilton's case, 8 C. and P. 49 (c). It would appear that had the prosecutor been awake instead of asleep, in Taylor's case, the property was sufficiently within his personal control to render the stealing of it a stealing from the person, and that an indictment under the above enactment would not have been sustainable. Reporter's note to Hamilton's case, supra.
It is a question for the court, and not for the jury, whether goods are under the protection of the dwelling-house, or in the personal care of the owner. Thomas' case, supra.
As in burglary, the ownership of the dwelling-house must be correctly described, and a variance will be fatal. Where a prisoner was indicted for burglary in the dwelling-house of John Snoxall
, and stealing goods therein, and it appeared that it was not the dwelling-house of [ *389] John Snoxall, it was held by Buller, J., and Grose, J., at the Old Bailey, that he could not be found guilty, either of the burglary or of stealing to the amount of 40s. in the dwelling-house, for it was essential in both cases to state in the indictment the name of the person in whose house the offence was committed. White's case, I Leach, 251. So where the house was laid to be the house of Sarah Lunns, and it appeared in evidence that her name was Sarah London, the variance was held fatal. Woodward's case, 1 Leach, 253. (n.)
Consequences of verdict against one of several, as to part of the offence.) Although a verdict may be found against one only, upon a joint indictment, yet if all the prisoners are found guilty, they must be found guilty of the compound larceny. Thus where A. and B. were indicted under the statute 12 Anne, c. 7, for stealing goods to the value of 61. 108. in a dwelling-house, and the jury found A. guilty of such stealing to the value of 61., and B. to the value of 108.; upon a case reserved, the judges were of opinion, that judgment could not be given against both the pris
(a)1 Eng. C. C. 418. (6) 2 Ibid. 89. (c) Eng. Com. L. Rep. xxxiv. 288.
oners, but that on a pardon being granted, or a nolle prosequi entered as to B., judgment might be given against A. Hempstead's case, Russ. and Ry. 344 (a).
Indictment for burglary. Upon an indictment for burglary, on a failure to prove a breaking and entering in the night time, the prisoner may be convicted of stealing in a dwelling-house to the value of 51., ante,
STEALING IN A DWELLING-HOUSE, ANY PERSON THEREIN BEING PUT
IN BODILY FEAR.
Statute 7 Wń. 4 and 1 Vict. c. 86.] This offence was provided against by the statute 3 W. and M. c. 9, s. 1, (repealed by 7 & 8 Geo. 4, c. 27,) and the provisions of the former statute were re-enacted in the 7 & 8 Geo. 4, c. 29.
By the 12th section of which statute it was enacted, that if any person should break or enter any dwelling-house, and steal therein any chattel; money, or valuable security, to any value whatever, or should steal any such property to any value whatever in any dwelling-house, any person therein being put in fear, every such offender, being convicted thereof, should suffer death as a felon.
By the 7 Wm. 4 and 1 Vict. c. 86, s. 1, so much of the above act as relates to stealing in a dwelling-house, any person therein being put in fear, and so much of the same act as relates to the punishment of principals in the second degree, and of accessaries before and after the fact to the said offence, are repealed, except as to offences committed before the 30th September, 1837, which are to be dealt with and punished as if the recent act had not passed. [ *390 ] *By s. 5," whosoever shall steal any property in any dwelling-house, and shall by any menace or threat, put any one being therein in bodily fear, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas, for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years."
For s. 6, prescribing the punishment of principals in the second degree, and accessaries before and after the fact, see ante, p. 207.
For s. 7, authorising hard labor and solitary confinement, in cases of imprisonment, see ante, p. 301.
By s. 9, the word "property” is throughout the act, to be deemed to denote every tbing included under the words “chattel, money or valuable security," used in the 7 & 8 Geo. 4, c. 29.
The 13th section of the 7 and 8 Geo. 4, c. 29, vide ante, p. 326, describing the buildings which are to be considered parcel of the dwellinghouse, is applicable to this offence.
Upon an indictment for this offence, the prosecutor must prove-1st, the stealing ; 2d, that it took place in a dwelling-house; and 3d, that some person therein was put in bodily fear by some menace or threat. It will
(a) Eng. C. C. 344.
only be necessary in this place to state the evidence with regard to the latter head.
Proof that some person was put in bodily fear.) Some doubt existed with regard to the interpretation of the words "being put in fear," under the repealed statutes, but the correct opinion appeared to be, that though it was necessary that some person in the house should be put in fear by the offenders, yet it was not essential that the larceny should be committed in the presence of that person. 2 East, P. C. 633. 2 Russell, 49.
Whether or not it was necessary under the former statutes (and the words of the 7 and 8 Geo. 4, c. 29, were the same) to prove the actual sensation of fear felt by any person in the house, or whether if any person in the house was conscious of the fact at the time of the robbery, the fact itself raised the implication of fear from the reasonable grounds existing, for it did not appear to be any where settled. See 2 East, P. C. 634, 635. According to Mr. East, the practice was to require proof of the actual fear excited by the fact, when committed out of the presence of the party, so as not to amount to a robbery at common law. But he added, that certainly if the person in whose presence the thing was taken, was not conscious of the fact at the time, the case would not fall within the act. 2 East, P. C. 634, 635.
Now by the 7 Wm. 4 and 1 Vict. c. 90, s. 3, the nature of the acts are defined by which fear is to be excited, and in order to make out the offence, it must be proved that some person, then being in the house, was put in bodily fear, by the use of some menace or threat. See supra.
Upon an indictment for stealing in a dwelling-house, some persons therein being put in fear, the prisoner may be convicted of the simple larceny. Etherington's case, 2 Leaclı, 673.
*BREAKING AND ENTERING A BUILDING WITHIN THE CURTILAGE. [ *391 ]
A distinction having been created by the 13th section of the 7 & 8 Geo. 4, c. 29, (ante, p. 326,) between such buildings within the curtilage, as have a communication between themselves and the dwelling-house, either immediate or by means of a covered and inclosed passage, and such buildings as have not; the latter species of buildings are protected by a separate enactment.
By the 7 & 8 Geo. 4, c. 29, s. 14, it is enacted “ that if any person shall break and enter any building, and steal therein any chattel, inoney, or valuable security, such building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof, according to the provision hereinbefore mentioned (s. 13, vide ante, p. 326,) every such offender being convicted thereof, either upon an indictment for the same offence, or upon an indictment for burglary, house-breaking, or stealing to the value of 5l. in a dwelling-house, containing a separate count for such offence [shall be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding three years, and if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment.”]
Now by the 7 Wm. 4, and 1 Vict. c. 90, s. 2, so much of the above
section as relates to the punishment of persons convicted of the offence therein specified, is repealed, and it is enacted, that every person convicted after the commencement of this act, of any such offence, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, or to be imprisoned for any term not exceeding three years.
By s. 3, hard labor and solitary confinement may be awarded, in cases of imprisonment, sec ante, p. 384.
The 7 Wm. 4 and i Vict. c. 90, contains no express provision, with respect to accessaries, and it may be a question how far the 7 & 8 Geo. 4, c. 29, s. 61, ante, p. 206, is still applicable, as in terms it extends only to felonies punishable under that act, and so much of the act as relates to the punishment of inter alia) the above offence, is now repealed.
It has been observed, upon the 7 & 8 Geo. 4, c. 29, s. 14, that, specifying as it does, in express terms, a building within the curtilage of a dwelling-house, it appears not to apply to many of those buildings and out-houses, which although not within any common inclosure or curtilage, were deemed by the old law of burglary parcel of the dwelling-house, from their adjoining such dwelling-house, and being in the same occupation. 2 Russell, 55. To this it may be added, that the enactment likewise does not seem to extend to those buildings, which being within the curtilage, yet not communicating with the dwelling-house internally, [ *392 ) are still held to *be parcel of the dwelling-house, as in several of the cases already mentioned. Vide ante, p. 311.
Upon an indictment framed upon this enactment, the prosecutor must prove; 1st, a breaking and entering, as in burglary ; 2d, a stealing within the building; 3d, that the building comes within the statute, viz. that it is a building, within the curtilage of a dwelling-house, occupied therewith, and not being part of such dwelling-house, according to the 13th section of the same statute (ante, p. 326,) and, as above suggested, it should also appear that the building is not part of the dwelling-house, according to the rules of the common law,
For the 15th sect. of the 7 & 8 Geo. 4, c. 39, relating to breaking and entering shops, &c., see title, Shop.
Statute 7 & 8 Geo. 4, c. 29.] The offence of embezzlement, by clerks and servants, was provided for by the statute 39 Geo. 3. c. 35; but that