Sivut kuvina
PDF
ePub

*INCITING TO MUTINY.

By the 37 Geo. 3, c. 70, s. 1, after reciting that divers wicked and evil disposed persons, by the publication of written or printed papers, and by malicious and advised speaking, had of late industriously endeavored to seduce persons serving in his Majesty's forces by sea and land, from their duty and allegiance to his Majesty, and to incite them to mutiny and disobedience; it is enacted, “ that any person who shall maliciously and advisedly endeavor to seduce any person or persons serving in his Majesty's forces, by sea or land, from his or their duty and allegiance to his Majesty, or to incite or stir up any such person, or persons to commit any act of mutiny, or to make or endeavor to make any mutinous assembly, or to commit any traiterous or mutinous practice whatsoever, shall, on being legally convicted of such offence, be adjudged guilty of felony (and shall suffer death, as in cases of felony, without benefit of clergy.")

S. 2, provides and enacts, “ that any offence committed against this act, whether committed on the high seas, or within that part of Great Britain called England, shall and may be prosecuted and tried before any court of oyer and terminer, or gaol delivery for any county of that part of Great Britain called England, in such manner and form as if the said offence had been therein committed."

By the 7 Wm. 4 and 1 Vict. c. 91, s. 1, after reciting (inter alia) the above statute, it is enacted, " that if any person shall, after the commenceinent of this act, be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.”

By 6. 2, hard labor and solitary confinement may be awarded in cases of imprisonment; see a similar provision, ante, p. 333.

KIDNAPPING.

Kidnapping, which is an aggravated species of false imprisonment, is the stealing and carrying away or secreting of any person, and is an offence at common law, punishable by fine and imprisonment. 1 East, P. ( *530 ] C. 429. By the habeas corpus act, 31 Car. 2, *c. 2, s. 12, the sending prisoners out of England, is made punishable as a præmunire, and by the 11 & 12 Wm. 3, c. 7, masters of vessels forcing their men on shore or leaving them bebind, were subjected to three months' imprisoninent.

This statute is repealed by the 9 Geo. 4, c. 31, which enacts, s. 30, “that if any master of a merchant vessel shall, during his being abroad, force any man on shore, or wilfully leave him behind in any of his Majesty's colonies or elsewhere, or shall refuse to bring home with him again all such of the men whom he carried out with him, as are in a condition to return when he shall be ready to proceed on his homeward-bound voyage, every such master shall be guilty of a misdemeanor, and being lawfully convicted thereof, shall be imprisoned for such term as the court shall award; and all such offences may be prosecuted by indictment or by information, at the suit of his Majesty's attorney-general, in the court of King's Bench, and may be alleged in the indictment or information to have been committed at Westminster in the county of Middlesex; and the said court is hereby authorized to issue one or more commissions, if necessary, for the examination of witnesses abroad; and the depositions taken under the same shall be received in evidence on the trial of every such information.”

LARCENY.

[ocr errors]
[ocr errors]

Definition and punishment of larceny 532 Intent to part with the property by Proof of the lucri causa

532

the prosecutor-original felonious Proof of the taking

534

intent on the part of the prisoner 561 Proof of the manual taking 534 Pretended purchases

561 Proof of the felonious intent in the

Cases of obtaining goods, &c. by taking :

536
false pretences

563 Goods obtained by false process

Proof of the things stolen-things savor. of law

536 ing of the realty at common law - 564 Goods taken by mistake . 536 Things annexed to buildings, &c. • 565 Goods taken by trespass 536 Mines

. 566 Goods taken under a fair claim

Trees, &c.

. 567 of right · 537 Written instruments

• 568 Goods procured by finding 538.

Securities for money, &c.

. 570 Goods taken by wife-or be wife

Promissory notes

• 571 and a stranger

--540
Bankers' checks

- 573 Proof of the taking with reference to the

Exchequer bills

- 573 possession of the goods 541 Goods from vessels

- 573 Original taking not felonious 541

.

Goods in process of manufacture - 575 Cases of bailees

542 Proof of the thing taken-animals,-doDetermination of the bailment - 543 mestic animals

- 576 Cases of servants

545
Animals feræ naturæ

• 576 Cases of lodgers

• 550
Dead or reclaimed

- 576 Stealing from the person

550 Animals kept for pleasure only, and Proof of the taking ; distinction between

not fit for food

• 577 larceny and false pretences-cases of

Dogs, pigeons, &c.

- 578 larceny 552 Proof of the thing taken

. 578 No intent to part with the property

Identity

. 578 by the prosecutor-original felo

Value

- 579 nious intent on the part of the pris- Proof of the ownership-cases where it oner-cases of hiring horses, &c. is unnecessary to allege or prove own. larceny 553 ership

• 579 Various cases amounting to larceny,

Intermediate tortious taking • 579 where goods have been obtained

Goods in custodia legis

• 580 by false pretences-ring-dropping,

Goods of the offender himself • 580 &c.

556 Goods of joint-tenants and tenants Cases of pretended purchases—lar

in common, &c.

581 • 559 Goods in possession of children - 582 Proof of the taking; distinction between

Goods in possession of bailees . 583 larceny and false pretences-cases of

In possession of carriers, drivers false pretences

. 561

of stage-coaches, &c. - 583

ceny

Goods of deceased persons, execu

Goods of trustees of turnpikes • 508 tors, &c.

584 Goods of commissioners of sewers, Goods of lodgers

585
&c.

588 Goods of married women

585 Goods belonging to friendly socieGoods of persons unknown

585
ties, &c.

588 Goods of servants

506 | Presumption of guilt arising from the Goods of corporations 586 possession of stolen property

588 Goods belonging to counties, &c. 587 | Restitution of stolen property

- 589 Goods for the use of poor of parishes 587 | Venue

- 589

[ *532 ] *Definition, &c.]' Larceny has been defined to be “the wrongful or fraudulent taking and carrying away, by one person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner.”. 2 East, P. C. 553; 2 Russell, 93 (1). See the definitions collected, Ist Rep. on Crim. Law, p. 9.

Larceny was formerly divided into grand larceny, where the value of the property was above twelve pence, and petty larceny where the value was twelve pence or under, but now by the 7 and 8 Geo. 4, c. 29, s. 2, it is enacted, that the distinction between grand larceny 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 same incidents in every respect, as grand larceny, before the commencement of the act; and every court whose power as to the trial of larceny was, before the commencement of the act, limited to petty larceny, shall have power to try every case of larceny, the punishment of which cannot exceed the punishment in the act after mentioned for simple larceny, and also to try all accessaries to such larceny."

By s. 3, of the above statute "every person convicted of simple larceny, or of any felony made punishable like simple larceny, shall (except in the cases hereinafter otherwise provided for) be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two 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.”

By s. 4, hard labor and solitary confinement may be awarded in cases of imprisonment, but by the 7 Wm. 4 and 1 Vict. c. 90, s. 5, no offender shall be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year ; see ante,

P. 348.

Proof of the lucri causa.] Larceny is defined by Eyre, B., to be the wrongful taking of goods, with intent to spoil the owner of them, lucri [ *533 ] causa.Pear's case, 2 East, P. C. 685. And in the *same manner Mr. Justice Blackstone says, that “the taking must be felonious, that is, done animo furandi, or as the civil law expresses it, lucri causa," 4 Com. 232. The expression, lacri causa, must not, as it seems, be understood to convey any further meaning, than that expressed in Mr. East's definition, “a felonious intent, to convert the goods to the taker's own use, and make them his own property," vide supra. It is not necessary that the offender should contemplate any thing in the nature of a pecu

(1) 1 Wheeler's C. C. 166, 536. 3 Id. 511.

niary advantage. Thus, in the following case, where the object was to destroy the property, the offence was still held to be larceny. The prisoner, in conjunction with the wife of a man, who was charged with stealing a horse, went to the stable of the owner, took the horse out, and backed it into a coal pit. It was objected for the prisoner, on an indictment for stealing the horse, that it was not taken animo furandi, and lucri causa. The prisoner being convicted, the opinion of the judges was taken, who thought the conviction right. Six of the judges held it not to be essential to constitute the offence of larceny, that the taking should be lucri causa. They thought that a taking fraudulently, with an intent wholly to deprive the owner of the property was sufficient; but some of the six thought, that in this case the object of protecting the party charged with stealing the horse might be deemed a benefit, or lucri causa. Two of the judges held the conviction wrong. Cabbage's case, Russ. and Ry. 292 (a). Upon this case it is observed in the report of the criminal law commissioners, (p. 17,) that where the removal is merely nominal, and the motive is that of injury to the owner, and not of benefit to the taker, the offence is scarcely distinguishable from that of malicious mischief.

In the following case, the lucri cuusa appears not to have been considered as a necessary ingredient of larceny. The prisoners were charged with stealing a quantity of beans. They were servants of the prosecutor, and took care of his horses, for which the prosecutor made an allowance of beans. The prisoners had entered the granary by a false key, and carried away a quantity of the beans wbich they gave to the prosecutor's horses. Bayley, J., had directed an acquittal in a similar case ; but Abbott, J., being informed that several judges had, under the same circumstances, held the offence to be larceny, reserved the point. Eleven of the judges having met, eight were of opinion that it was felony; that the purpose to which the prisoners intended to apply the beans did not vary the case.

It was, however, alleged by some of the judges, that the additional quantity of beans would dininish the work of the men who had to look after the horses, so that the master not only lost the beans, or had them applied to the injury of his horses, but the men's labor was lessened, so that the lucri causa, to give themselves ease, was an ingredient in the

Three of the judges thought it no selony. Morfit's case, Russ. and Ry. 307 (6)

But it has been held by Lord Abinger, C. B., that where a person from idle curiosity, either personal or political, opens a letter, addressed to another person, and keeps it, this is no larceny, even *though. [ *534 ) part of his object may be to prevent the letter from reaching its destination. Godfrey's case, 8 C. and P. 563 (c).

The rule with regard to the lucri causa is stated by the criminal law commissioners in the following terms: “The ulterior motive by which the taker is influenced in depriving the owner of his property altogether, whether it be to benefit himself or another, or to injure any one by the taking, is immaterial.” 1st Rep. p. 17.

case.

Proof of the taking.] The following is the definition of a felonious taking given by the criminal law commissioners. The taking and carry

(@) 1 Eng. C. C. 292. (b) Id. 307. (c) Eng. Com. L. Rep. xxxiv. 525.

ing away are felonious, where the goods are takon against the will of the owner, either in his absence, or in a clandestine manner, or where possession is obtained either by force or surprise, or by any trick, device, or fraudulent expedient, the owner not voluntarily parting with his entire interest in the goods, and where the taker intends in any such case fraudulently to deprive the owner of bis entire interest in the property against his will. Ist Rep. p. 16.

Where goods are once taken with a felonious intent, the offence cannot be purged by a restoration of them to the owner. Thus, the prisoner having robbed the prosecutor of a purse, returned it to him again, saying, if you value the purse take it, and give me the contents, but before the prosecutor could do this the prisoner was apprehended; the offence was held to be complete by the first taking. Peat's case, 2 East, P. C. 557.

Proof of the takingwhat manual taking is required.] In order to constitute the offence of larceny, there must be an actual taking, or severance of the thing, from the possession of the owner, for as every larceny includes a trespass, if the party be not guilty of a trespass in taking the goods, he cannot be guilty of a felony in carrying them away. Still, though there must be a taking, in fact, from the actual or constructive possession of the owner, yet it need not be by the very hand of the party accused. For if he fraudulently procure another, who is himself innocent of any felonious intent, to take the goods for him, it will be the same as if he had taken them himself; as if one procure an infant, within the age of discretion, 10 steal the goods for him, or if, by fraud or perjury, he get possession of the goods by legal process without title. 2 East, P. C. 555; 2 Russell, 95.

The least removing of the thing taken, from the place where it was before, though it is not quite carried off, is a sufficient taking and carrying away to constitute larceny (1); and upon this ground a guest, who had taken the sheets from his bed with an intent to steal them, and carried them into the hall where he was apprehended, was adjudged guilty of larceny. Hawk. P. C. b. 1, c. 35, s. 25; 3 Inst. 108 ; 2 East, P. C. 555;

Leach, 323. So where a person takes a horse in a close, with intent to steal him, and is apprehended before he can get him out of the close. 3 Inst. 109; see further as to Cattle, William's case, 1 Moody, C. C. 107 (a), ( *535 ] stated post. The *prisoner got into a wagon, and taking a parcel of goods which lay in the forepart, had removed it to near the tail of the wagon, when he was apprehended. The twelve judges were unanimously of opinion that, as the prisoner had removed the property from the spot where it was originally placed, with an intent to steal, it was a sufficient taking and carrying away to constitute the offence (2). Coslet's case, 1 Leach, 236; 2 East, P. C. 556. But where the prisoner had set up a parcel containing linen, which was lying lengthways in a wagon, on one end, for the greater convenience of taking the linen out, and cut the wrapper all the way down for that purpose, but was apprehended before he had taken any thing, all the judges agreed that this was no larceny, although the intention to steal was manifest. For a carrying away,

(1) Case of Scott & al., 5 Rogers' Rec. 169. (2) State o. Wilson, 1 Coxe, 441.

(a) 2 Eng. C. C, 107.

« EdellinenJatka »