L

derstood of articles like those above-mentioned, the identity of which is not capable of strict proof, from the nature of them; for lord Hale says, he never would convict any person of stealing the goods of one unknown, merely because he could not give an account how he came by them; unless due proof were made that a felony had been committed of those goods.

Neither is the fact of concealment (the identity of the property not being proved) of itself evidence of stealing, though undoubtedly very strong coroborative proof of it. Where it is out of dispute that the property remains in the original owner, and the only question is, whether he did not so far part with the possession of the thing taken, as to exclude the idea of trespass in the taker, without which these offences cannot be committed; it is material to examine in what manner such possession was in fact parted with; whether by any charge, general bailment, or delivery for a special purpose. For it may be laid down as general rules; first, That where, notwithstanding a delivery by the owner in fact, the legal possession remains exclusively in him, larceny may be committed exactly the same as if no such delivery had been made. Secondly, That where, by the delivery a special property, and consequently a legal possession, apart from any felonious intent, would be transferred; there, if it be found that such delivery were fraudulently procured with a fraudulent intent to convert the property so acquired; then also the taking amounts to larceny. Thirdly, That even where there is no evidence of a previous felonious intent in so obtaining the property, but it is acquired upon a privity of contract, still larceny may be committed after any act done to determine such privity of contract.

1. Of simple larceny.

2. Of larceny in the day-time, from any dwellinghouse, office, shop, ware-house or vessel.

3. Of larceny in the night-time, from any office, shop or ware-house not adjoining to, or occupied with, a dwel

Ibid.

Ibid. 681.

Stat. 1804, c. 113, s. 1.

Punishment.

ling-house; any vessel; any church, meeting-house, court-house, town-house, college or academy; or any building erected for public uses; or any mill, malt-house, store, barn or stable.

4. Larceny from the person.

5. Punishment in case of a conviction of two or more larcenies.

6. What courts have jurisdiction of larcenies.

7. Duty of the officer who arrests a thief; and the right of the owner to a restitution of the property.

I. Of simple larceny.

By statute it is enacted, that any person who shall feloniously steal, take and carry away of the property of another, any money, goods or chattels, or any bond, promissory note, bill of exchange, or other bill, order or certificate; or any book of accounts for or respecting any money or goods, due or becoming due and payable, or to be delivered; or any deed or writing, containing a conveyance of lands, or other real estate; or any other valuable contract remaining in force; or any receipt, release or defeasance; or any writ, process or public record; shall be deemed guilty of the crime of larceny; and every such offender, and any person present, aiding and abetting in any such larceny, or accessary thereto before the fact, by counselling, hiring, or otherwise procuring the same to be done, who, before any court having jurisdiction thereof, shall be duly convicted of either of the felonies and offences aforesaid, shall be punished, when the money, goods or other article or articles stolen shall not exceed, in amount or value, the sum of one hundred dollars, by solitary imprisonment for a term not exceeding six months, and by confinment afterwards to hard labour for a term not exceeding one year; or by a fine, not exceeding one hundred dollars, and by imprisonment in the common gaol for a term not exceeding one year. And when the money, goods or other article or

articles stolen shall exceed in amount or value the sum of one hundred dollars, then by solitary imprisonment, for a term not exceeding one year, and by confinement afterwards to hard labour for a term not exceeding three years, to be ordered by the court before whom the conviction may be, according to the degree and aggravation of the offence.

II. Of larceny in the day-time, from any dwellinghouse, office, shop, ware-house or vessel.

By the same statute, if any person shall, in the daytime, commit any larceny in any dwelling-house, office, shop, ware-house, ship or vessel lying within the body of a county, or shall be aiding and abettingi n the commission of such felony, or shall be accessary thereto before the fact, by counselling, hiring, or otherwise procuring the same to be done, every such offender, upon conviction of either of the felonies aforesaid, in the supreme judicial court, shall be punished by solitary imprisonment for a term not exceeding six months, and by confinement afterwards to hard labour for a term not exceeding five years.

III. Of larceny in the night-time, from any office, shop or ware-house not adjoining to, or occupied with, a dwelling-house; any vessel; any church, meeting-house, court-house, town-house, college or academy; or any building erected for public uses; or any mill, malt-house, store, barn or stable.

By the same statute, if any person, in the night-time, shall break and enter any shop, ware-house or office, not adjoining to or occupied with any dwelling-house, or any ship or vessel lying within the body of a county, and shall there commit a larceny, every such offender, and every person present, aiding and abetting in the commission of such felony, or accessary thereto before the fact, by counselling, hireing or procuring the same to be

Ibid. 9. 6.

Punishment.

Ibid. s. 4:

Punishment

Ibid. s. 6.

Punishment.

Ibid. s. 8.

Punishment.

committed, and being thereof duly convicted before the supreme judicial court, shall be punished by solitary imprisonment, for such term, not exceeding one year, and confinement afterwards to hard labour for such term, not exceeding fifteen years, as the justices of the said court, before whom the conviction may be, shall sentence and order, according to the aggravation of the offence.

So if any person in the night-time, shall break and enter any church, meeting-house, court-house, townhouse, college or academy, or other building erected for public uses; or any mill, malt-house, store, barn or stable, and shall commit any larceny therein, or shall be aiding and abetting in the commission of such felony, or shall be accessary thereto before the fact, by counselling, hireing or otherwise procuring the same to be done, every such offender, upon conviction of either of the felonies aforesaid, in the supreme judicial court, shall be punished by solitary imprisonment for a term not exceeding six months, and by confinement afterwards to hard labour for a term not exceeding five years.

IV. Larceny from the person.

By the same statute, if any person shall commit any larceny from the person of another, either openly and violently, or privily and fraudulently, (other than robbery) every such offender, and any person present, aiding and abetting in the commission of such felony, or accessary thereto before the fact, by counselling, hireing or otherwise procuring the same to be done, who shall be duly convicted in the supreme judicial court, shall be punished by solitary imprisonment for a term not exceeding one year, and by confinement, afterwards, to hard labour, for a term not exceeding five years, to be ordered by the justices of the said court before whom the conviction may be, according to the aggravation of the offence.

V. Punishment in case of a conviction of two or more larcenies.

By the same statute, if any person, having been before convicted of the crime of larceny, or as accessary thereto before the fact, shall afterwards commit, or shall be alike accessary to another larceny, and shall be duly convicted thereof before the supreme judicial court; or if any person, before the supreme judicial court, at one and the same term thereof, shall be duly convicted as principal, or as accessary before the fact, in three distinct larcenies, every such offender shall be punished as a common and notorious thief, by solitary imprisonment for a term not exceeding one year, and by confinement afterwards to hard labour for a term not less than three years, and not exceeding fifteen years, to be ordered as aforesaid.

VI. What courts have jurisdiction of larcenies.

By the same statute, the supreme judicial court shall have exclusively the jurisdiction of all larcenies, where the money, goods, or other article or articles stolen, shall be alleged to exceed in amount or value the sum of one hundred dollars; the said supreme judicial court, the courts of common pleas within their respective counties, and the municipial court of the town of Boston, within the said town of Boston, shall have concurrent jurisdiction of all larcenies, where the money, goods, or other article or articles stolen, shall not be alleged to exceed in amount or value the sum of one hundred dollars; and every justice of the peace, within his proper county, shall have concurrent jurisdiction with the said courts, of all larcenies, where the money, goods, or other article or articles stolen, shall not be alleged to exceed in amount or value the sum of five dollars.

VII. Duty of the officer who arrests a thief; and the right of the owner to a restitution of the property.

By statute it is enacted, that it shall be the duty of any sheriff or other officer who shall be charged with, or law

Ibid. s. 3.

Punishment.

Ibid. s. 2.

Tbid. S. 15.