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the term of penal servitude which may at the discretion of the court be given instead of mere imprisonment, is extended to fourteen years (y). So, also, whosoever shall steal a horse, mare, gelding, colt or filly; a bull, cow, ox, heifer or calf; or a ram, ewe, sheep or lamb; is punishable by penal servitude to the extent of fourteen, or not less than five years, or by imprisonment, with or without hard labour and solitary confinement, to the extent of two years (z).
[The additional severity sanctioned in these instances, is owing to the difficulty there would otherwise be in preserving goods so easily carried off(a). Upon which principle the Roman law punished more severely than other thieves the abigei, or stealers of cattle (6); and the balnearii, or such as stole the clothes of persons who were washing in the public baths (c): both which constitutions seem to be borrowed from the laws of Athens (d). And so, too, the antient Goths punished, with unrelenting severity, thefts of cattle or corn that was reaped and left on the field; such kind of property, which no human industry can sufficiently guard, being esteemed under the peculiar custody of Heaven (e).]
The offence which we have been hitherto considering is that of larceny at common law, but in connection with this offence, and proper for consideration under the same head, is the crime of stealing things not the subject of
(y) 24 & 25 Vict. c. 96, s. 62, re-enacting in substance 7 & 8 Geo. 4, c. 29, s. 16.
(z) 24 & 25 Vict. c. 96, s. 10; 27 & 28 Vict. c. 47. See also 24 & 25 Vict. c. 96, s. 11, as to wilfully killing any animal (the stealing whereof would have amounted to felony), with intent to steal the carcase, &c.; sects. 12–16, as to unlawfully carrying away, &c., deer kept in
forests, &c.; sect. 17, as to unlawful
(a) Vide sup. p. 17.
larceny at common law. For in progress of time it was found necessary to extend the protection of the penal laws to many of those subjects, of which the antient law of larceny took no account: and Acts of Parliament were accordingly passed, from time to time, by which punishments were imposed for thefts committed in respect of various kinds of property so circumstanced: and though these statutes have been since repealed, the same general object has been pursued in the Act (24 & 25 Vict. c. 96), which was passed in the year 1861, to consolidate the statute law “relating to larceny and other similar offences” (f). By this Act (9) provisions are made against stealing “ valuable securities,"—such as bonds, bills and the like (1)—and numerous other subjects of property of which the enumeration will be found in a note below (i); and it may be laid down in general terms, that stealing has now become an offence, liable to punishment or penalty, in regard to all moveables whatever. We also remark, with respect to the kinds of stealing thus created by statute in supplement to the antient law of larceny, that all the common law doctrines relative to
(f) Some of the provisions of this Act are also pointed at the fraudulent or improper destruction of the subjects of property; and (in the case of animals) against the killing with intent to stcal them.
(9) This statute is to a certain extent based on a previous Act, having the same general design, and nearly the same title, viz., the 7 & 8 Geo. 4, c. 29, which (so far as the united kingdom is concerned), is repealed by the 24 & 25 Vict.
18–20, as to dogs; ss. 21, 22, as to birds and animals ordinarily kept in confinement; s. 26, as to oysters; s. 27, as to valuable securities not being part of title to lands; s. 28, as to documents of title to lands; 8. 29, as to wills; s. 30, as to records and legal documents ; s. 31, as to fixtures; ss. 32, 33, as to trees; ss. 34, 35, as to fences; s. 36, as to fruit; s. 37, as to garden produce; ss. 38, 39, as to ores. A variety of antecedent statutes, passed with the same object of supplying the defects of the antient law in this particular and noticed by Blackstone, (vol. iv p. 233, &c.,) were repealed by 7 & Geo. 4, c. 27.
(1) 24 & 25 Vict. c. 96, ss. 1, 27. See R. r. Smith, 1 Dearsley's C. C. R. 561.
(i) Sec 24 & 25 Vict. c. 96, ss.
larceny, which we have already had occasion to notice, are in general applicable to thefts of this description also (k), though they are not technically denominated larcenies (I); and that their punishment is, in many cases, identical. In several instances, however, they do not amount, like larceny at common law, to a felony, but to a misdemeanor only; and there are others of them not assignable to the class either of felony or misdemeanor; but restrained by fixed pecuniary penalties only, recoverable, in a summary way, before a justice of the peace (m).
We have seen that larceny may not only be simple, but combined with circumstances of aggravation; which is described in our books as mixed, compound, or complicated larceny (n); and this is not only, like simple larceny, felonious, but is felony of a more penal character. We will therefore now consider,
1. Larceny in a dwelling-house. [This species of theft, though it seems to have a higher degree of guilt than simple larceny, yet was not at all distinguished from the other at common law (o); unless where it was accompanied with the circumstance of breaking the house by night, and then it fell under another description, viz., that of burglary. But afterwards, by several Acts of Parliament,—the history of which is very ingeniously deduced by a learned writer, who hath shown them to have gradually arisen from our improvements in trade and opulence,-the benefit of clergy was taken, in almost every instance, from larcenies when committed in a house (P); so that the capital sentence, to which they were subject
(2) R. v. St. John, 7 C. & P. 324.
(1) See R. v. Gooch, 8 C. & P. 293.
(m) Vide post, chapter on Summary Convictions.
(n) 4 Bl. Com. 239; Hawk. P.C. b. 1, cc. 33, 34.
(0) Hawk. P. C. b. 1, c. 36.
(p) See Barrington on Statutes, 375, &c.
[as larcenies, took effect (1).] These Acts, however, are all repcaled, and this crime is now regulated by 24 & 25 Vict. c. 96, ss. 60, 61 (r). By the first of these provi
. , sions, whosoever shall steal in any dwelling-house, any chattel, money, or valuable security to the value of five pounds or more, shall be liable to penal servitude for fourteen years, or not less than five years (s); or to be imprisoned, with or without hard labour and solitary confinement, not exceeding two years; and by the second, the same punishment is awarded to whomsoever shall steal in a dwelling-house any chattel, money or valuable security, and shall by menace or threat put any one, being therein, in bodily fear.
2. Larcenies in ships, wharfs, fc. Whosoever shall steal goods or merchandize in any vessel, barge or boat in any haven or port of entry or discharge, or upon any navigable river or canal, or in any creek or basin belonging to or communicating with any such haven, port, river, or canal ;-or who shall steal any goods or merchandize from a dock, wharf, or quay adjacent to such haven, port, river, canal, creek, or basin;- is liable to the same punishments as last mentioned (t). And the same punishments may also be awarded to whomsoever shall plunder or steal any part of any ship or vessel in distress, or wrecked, or stranded, or cast on shore, or any goods, merchandize, or articles of any kind to her belonging (u).
3. [Larceny from the person (x): which is either by privately stealing; or by open and violent assault, usually called robbery. The offence of privately stealing from a
(1) Vide sup. p. 119.
(r) The previous provisions on this head, contained in 7 & 8 Geo. 4, c. 29, s. 12, and 7 Will. 4 & 1 Vict. c. 86, s. 5, are repcaled by 24 & 25 Vict. c. 95.
(s) See 27 & 28 Vict. c. 47.
() Sect. 65.
(x) In certain cases, larceny from the person may be disposed of summarily by justices at petty sessions, (or before a metropolitan or stipendiary magistrate.) Vide post, chapter on Summary Convictions.
[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 of 8 Eliz. c. 4(y): a severity which 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 was 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 (z).] But this statute of Elizabeth is repealed by 7 & 8 Geo. IV. c. 27; and new provisions are now in force as to the punishment of this offence, of which we shall presently have occasion to speak more at large.
[Open and violent larceny from the person, or robbery, the rapine of the civilians, is the unlawful and forcible taking from the person of another, of goods or money to any value, by violence or putting him in fear (a). 1. There must be an unlawful taking, otherwise it is no robbery (b). On the other hand, if the thief, having once taken a purse, returns it, still it is a robbery (C); and so it is, whether the taking be strictly from the person of another, or in his presence only; as where a robber, by
(y) This, however, was only where the thing stolen was of the value of more than twelve pence, for if it was below that value, so as to reduce the offence to petit larceny (as to which vide sup. p. 120), there was no need of the benefit of clergy, - the sentence not being capital. (Hawk. P. C. b. 1, c. 35, s. 4.)
(2) Ff. 47, 11,7; Pott. Antiq. I. 1, c. 26.
(a) Hawk. P. C. b. 1, c. 34, s. 2. (b) A mere attempt to rob was
held to be felony, so late as Henry the fourth's time ; (1 Hale, P. C. 532;) but afterwards it was taken to be only a misdemeanor, until 7 Geo. 2, c. 21; which made it a felony. This statute was repealed by 4 Geo. 4, c. 54, itself repealed by 7 & 8 Geo. 4, c. 27. As to the present law with regard to assaults with intent to rob, under 24 & 25 Vict. c. 96, s. 40, et seq., vide post, p. 127.
(0) R. v. Peat, 1 Lcach, C. C. 228.