common law, or only created so by statute; since that statute which makes an offence felony gives it incidentally all the properties of a felony at common law.

Thus much for the nature of burglary, which is a felony at common law, but within the benefit of clergy.

Chapter XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

229-251.

The next and fast species of offences against private subjects are such as more immediately affect their property. Of which there are two which are attended with a breach of the peace; larceny and malicious mischief; and one that is equally injurious to the rights of property, but attended with no act of violence, which is the crime of forgery. Of these three in their order.

Larceny.

I. Larceny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts: the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person. Simple Larceny.

And, first, of simple larceny, which, when it is the stealing of goods above the value of twelvepence, is called grand larceny; when of goods to that value, or under, is petit larceny.

Simple larceny is "the felonious taking and carrying away of the personal goods of another."

1. It must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from owner to the offender, upon trust, can ground a larceny. As if A lends B a horse, and he rides away with him; or if I send goods by a carrier, and he carries them away; these are no larcenies. But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed and afterwards takes away the whole, these are larcenies; for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not, of course, be intended to arise from a felonious design, since that may happen from a variety of other accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But, by statute 33 Hen. VI. c. I, the servants of persons deceased, accused of embez

zling their master's goods, may, by writ out of chancery (issued by the advice of the chief justices and chief baron, or any two of them) and proclamation made thereupon, be summoned to appear personally in the court of king's bench to answer their master's executors in any civil suit for such goods, and shall, on default of appearance, be attainted of felony. And, by statute 21 Hen. VIII. c. 7, if any servant embezzles his master's goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old. But if he had not the possession, but only the care and oversight, of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law. So if a guest robs his inn or tavern of a piece of plate, it is larceny; for he hath not the possession delivered to him, but merely the use; and so it is declared to be by statutes 3 and 4 W. and M. c. 9, if a lodger runs away with the goods from his ready-furnished lodgings. Under some circumstances also a man may be guilty of felony in taking his own goods; as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value: or if he robs his own messenger on the road, with intent to charge the hundred with the loss according to the statute of Winchester.

2. There must not only be a taking, but a carrying away. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation or carrying away. As, if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down-stairs: these have been adjudged sufficient carrying away to constitute a larceny. Or if a thief intending to steal plate, takes it out of a chest in which it was and lays it down upon the floor, but is surprised before he can make his escape with it, this is larceny.

causa.

3. This taking and carrying away must also be felonious; that is, done animo furandi: or, as the civil law expresses it, lucri This requisite, besides excusing those who labour under incapacities of mind or will (of whom we spoke sufficiently at the entrance of this book), indemnifies also mere trespassers and other petty offenders. As, if a servant takes his master's horse without his knowledge and brings him home again; if a neighbour takes another's plough that is left in the field and uses it upon his own land, and then returns it; if, under color of arrear of rent where none is due, I distrain another's cattle or seize them; all these are misdemeanours and trespasses, but no felonies.

This felonious taking and carrying away must be of the personal goods of another; for if they are things real, or savour

of the realty, larceny at the common law cannot be committed of them. Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees and the like, or lead upon a house, no larceny could be committed, by the rules of the common law, but the severance of them was, and in many things is still, merely a trespass, which depended on a subtility in the legal notions of our ancestors. These things were parcel of the real estate, and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immovable. And if they were severed by violence, so as to be changed into movables, and at the same time by one and the same continued act carried off by the person who severed them, they could never be said to be taken from the proprietor in this their newly acquired state of mobility (which is essential to the nature of larceny), being never, as such, in the actual or constructive possession of any one but of him who committed the trespass. He could not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels in the constructive possession of him on whose soil they are left or laid, and come again at another time, when they are so turned into personalty, and takes them away, it is larceny: and so it is if the owner or any one else has severed them. Stealing ore out of mines is also no larceny, upon the same principle of adherence to the freehold. Upon nearly the same principle the stealing of writings relating to a real estate is no felony, but a trespass; because they concern the land, or (according to our technical language) savour of the realty, and are considered as part of it by the law, so that they descend to the heir, together with the lands which they concern.

Bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larceny might be committed, being of no intrinsic value, and not importing any property in possession of the person from whom they are taken. Larceny also could not at common law be committed of treasure-trove or wreck till seized by the king or him who hath the franchise; for till such seizure no one hath a determinate property therein.

Larceny also cannot be committed of such animals in which there is no property either absolute or qualified; as of beasts that are ferae naturae and unreclaimed, such as deer, hares, and coneys in a forest, chase, or warren; fish in an open river or pond; or wild fowls at their natural liberty. But if they are reclaimed or

confined and may serve for food, it is otherwise, even at common law; for of deer so enclosed in a park that they may be taken at pleasure, fish in a trunk, and pheasants or partridges in a mew, larceny may be committed. It is also said that if swans be lawfully marked it is felony to steal them, though at large in a public river; and that it is likewise felony to steal them, though unmarked, if in any private river or pond: otherwise it is only a trespass. But of all valuable domestic animals, as horses and other beasts of draught, and of all animals domitae naturae, which serve as food, as neat or other cattle, swine, poultry, and the like, and of their fruit or produce, taken from them while living, as milk or wool, larceny may be committed; and also of the flesh of such as are either domitae or ferae naturae, when killed. As to those animals which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to larceny.

Notwithstanding, however, that no larceny can be committed unless there be some property in the thing taken, and an owner; yet, if the owner be unknown, provided there be a property, it is larceny to steal it, and an indictment will lie, for the goods of the person unknown. In like manner as among the Romans the lex Hostilia de furtis provided that a prosecution for theft might be carried on without the intervention of the owner. This is the case of stealing a shroud out of a grave; which is the property of those, whoever they were, that buried the deceased; but stealing the corpse itself, which has no owner (though a matter of great indecency) is no felony unless some of the grave-clothes be stolen. with it.

Compound Larceny.

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

From the House.

1. Larceny from the house, though it seems to have a higher degree of guilt than simple larceny, yet it is not at all distinguished from the other at common law, 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.

From the Person.

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

Robbery.

Open and violent larceny from the person, or robbery, the rapina of the civilians, is the felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear. I. There must be a taking, otherwise it is no robbery. A mere attempt to rob was indeed held to be felony so late as Henry the Fourth's time, but afterwards it was taken to be only a misdemeanour, and punishable with fine and imprisonment, till the statute 7 Geo. II. c. 21, which makes it a felony (transportable for seven years) unlawfully and maliciously to assault another with any offensive weapon or instrument, or by menaces or by other forcible or violent manner to demand any money or goods, with a felonious intent to rob. If the thief, having once taken a purse, returns it, still it is a robbery; and so it is whether the taking be strictly from the person of another, or in his presence only; as where a robber by menaces and violence puts a man in fear, and drives away his sheep, or his cattle before his face. But if the taking be not either directly from his person or in his presence, it is no robbery. 2. It is immaterial of what value the thing taken is: a penny as well as a pound thus forcibly extorted makes a robbery. 3. Lastly, the taking must be by force or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing. This previous violence or putting in fear is the criterion that distinguishes robbery from other larcenies; for if one privately steals sixpence from the person of another, and afterwards keeps it by putting him in fear. this is no robbery, for the fear is subsequent; neither is it capital. as privately stealing, being under the value of twelvepence. Not that it is indeed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear: it is sufficient if laid to be done by violence. And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enough that so much force or threatening by word or gesture be used as might create an apprehension of danger, or induce a man to part with his property without or against his consent. Thus, if a man be knocked down without previous warning and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery. So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him.