"in any dwelling-house, or any part thereof, or any out-house or "out-houses belonging and ufed with the faid dwelling-house or "houses, altho no perfon fhall be in the faid house or houses at the "time of the felony committed, every fuch perfon fhall be excluded "from the benefit of clergy.

Upon this ftatute these things are obfervable:

1. That the indictment, whereupon fuch person is to be excluded of the benefit of his clergy, ought precifely to follow the ftatute, viz. it must be in the day-time, and no person being in the house, and must appear to be fo upon evidence.

2. And therefore, if either the indictment purfue not the statute, or the evidence make not good the indictment, he is to have his clergy, and therefore upon fuch an indictment he may be acquitted of stealing against the form of the statute, and found guilty of fimple felony at common law, tho the indictment conclude contra formam ftatuti; and the fame law it is, if an indictment be formed upon the ftatute of 23 H. 8. or 5 & 6 E. 6. for tho the indictments in those cafes be fpecial, and conclude fometimes contra formam ftatuti, yet they include felony at common law, and tho the indictment concluding contra formam ftatuti be good, it is not neceffary, so as the circumstances required by the ftatute be pursued, for the ftatutes in thefe cafes make not the felony, but only exclude clergy, when the felony is fo circumftantiated, as the ftatute mentions, and is fo expreffed in the indictment.

3. If the indictment be formed upon this ftatute, as that he broke and entred the house in the day-time, and ftole, no perfon being in the house, if it appear upon the evidence, that the felony was committed without thefe circumftances, as if it were committed in the night, or not in the day, fo that it is burglary, or if committed when fome of the family were in the house, in which case he had been oufted of his clergy by the ftatute of 5 & 6 E. 6. if the indictment had been formed upon that ftatute, yet in such case the offender being fpecially indicted upon the ftatute of 39 Eliz. shall be found guilty of fimple felony at common law, and fhall not [526] be oufted of his clergy by the ftatute of 23 H. 8. 1 E. 6. 5 & 6 E. 6. or 18 Eliz. cap. 7. because the indictment is not formed upon those statutes, but only upon 39 Eliz. and if the circumstances of the statute of 39 Eliz. upon which the indictment is formed, be not purfued in the evidence, he must have his clergy, and fo is the conftant practice.

4. Altho

526

4. Altho this ftatute of 39 Eliz. in the body of the act speaks only of stealing, yet in as much as the preamble speaks of robbery, it hath been always taken, that upon this statute, as well as upon the ftatute of 5 E. 6. there must be these three things concur to ouft clergy: 1. There must be an actual fiealing or taking away of goods of fome value upon the statute of 5 & 6 E. 6. and of goods to the value of five shillings upon this ftatute, but it is not neceffary, that the goods be carried out of the house, for if he take them out of a trunk or cupboard, and lay them in the room, and be apprehended before he carry them away, it is a stealing within the ftatutes, and at common law alfo, as was refolved by all the judges, uno diffentiente, in a cafe out of Cambridgeshire upon a fpecial verdict there found upon an indictment upon the statute of 5 & 6 E. 6. anno 1664. (i). 2. It must be a ftealing of goods in the house, and therefore he that steals, or is party to the stealing them, being out of the houfe, is not by this ftatute to be oufted of his clergy. 3. Upon this ftatute, as well as upon the statute of 5 & 6 E. 6. there must be some act of force or breaking. (k)

Now what shall be faid fuch a force, as muft bring the party within this ftatute, hath been touched before, to which I add, 1. That whatsoever breaking will make a burglary, if it were in the night, will make fuch a force or breaking, as is within this ftatute and that of 5 E. 6. to ouft the thief of his clergy, as if he break open the outward or inward door of the houfe, pick the lock of [527] fuch door, draw the latch, break open the window, &c. 2. Some breaking or force will ouft clergy upon the ftatutes of 5 & 6 E. 6. and 39 Eliz. which will not make a burglary, if it were in the night, as where he enters by the doors open, and breaks open a counter or cupboard fixed to the freehold, as was agreed in the Cambridgeshire cafe before-mentiond.

T. 16 Car. 2. Simfon's cafe, where the cafe was thus: a man came into a dwelling-house, none being within, and the doors being open, and broke up a cheft, and took out goods to the value of five fhillings, laid them on the floor, and before he could carry them, out of the chamber, he was apprehended, and upon this matter specially found

(i) This was Simpson's cafe mentioned below, and is reported Kel 31.

(k) But now by 10 & 11 W. 3. cap. 23. "Whoever by night or day fhall in any "fhop, ware-houfe, coach-house, or ftable, "privately and feloniously teal to the va"lue of 5s. or more, tho fuch fhop be not broke open, nor any perfon therein, or fhall affift, hire; or command any

"perfon to commit fuch offense, shall be "excluded from the benefit of clergy.

And by 12 Ann. cap. 7. "Whoever "fhall feloniously steal to the value of 40s. "in any dwelling-houfe or out-house "thereto belonging, altho it be not bro"ken, nor any person therein, their aiders "ar aflifters are excluded from clergy.

he

he was oufted of his clergy upon the ftatute of 39 Eliz. for the taking them out of the cheft was felony by the common law, and the ftatute of 39 Eliz. did not alter the felony, but only excluded clergy; per omnes jufticiarios Angliæ. Ex libro Bridgman.

But whereas in that cafe the breaking open of the cheft was held fuch a force or breaking, as excludes clergy upon that statute, I have obferved, that the conftant practice at Newgate hath not allowed that conftruction, unless it was a counter or cupboard fixed; yet note, this refolution of 16 Car. was by all the judges of England then prefent, and tho one diffented, he after came about to the opinion of the reft. Ideo quære.

T. 13 Car. 1. B. R. Evans and Finch (1) were arraigned at Newgate upon an indictment, that they at twelve of the clock in the day, domum manfionalem Hugonis Audely de interiori templo, nullâ personá in eadem domo exiftente, fregerunt, & 401. from thence did steal, a fpecial verdict was found, that Evans by a ladder climbed up to the upper window of the chamber of H. Audely, and took out of the fame forty pounds, and Finch stood upon the ladder in view of Evans, and faw Evans in the chamber, and was affifting to the robbery, and took part of the money, and that at the time of the robbery divers perfons were in the Inner Temple-hall, and in divers other parts of the house; ruled, 1. That a chamber in an inn of court is [528] domus manfionalis within the ftatute of 39 Eliz. of him who was the owner of the chamber. 2. That altho this chamber was parcel of the Inner Temple, and other perfons were in the hall and other parts of the Inner Temple, yet no perfon being in the chamber, this offenfe was within the ftatute of 39 Eliz. and fo it differs from the cafe of Whitehall before-mentiond, where the indictment was upon the ftatute of 5 & 6 E. 6. 3. That in as much as Evans was only in the chamber, and Finch entred not the chamber, Evans had judgment of death, and Finch had his clergy.

And the like law had been upon the ftatute of 5 & 6 E. 6. as is before declared, for these statutes only exclude the parties, that actually take out of the dwelling-houfe, not thofe that are present and affenters (m), as hath been alfo before declared (n) upon the ftatute of 1 fac. of ftabbing.

(1) Cro. Car. 473.

(m) But by 3 & 4 W. & M. cap. 9. clergy is taken away from all, who comfort, aid, abet, affift, counsel, hire, or command any perfon felonioufly to break any dwelling-houfe, thop, or ware-houle

thereto belonging, and feloniously to take away any money, goods, &r. to the value of 5s. or upwards, altho no perfon be within the fame.

(n) Vide antea, p. 468.

And

And herein it differs from burglary and robbery, for therein all perfons, that are prefent, aiding, and affifting, are equally burglars or robbers with him, that enters or actually takes; but of this hereafter.

But this ftatute of 39 Eliz. takes not away the benefit of clergy, where the offender stands mute, but only in the cafe of conviction by verdict, confeffion, or otherwife according to the laws of the realm; quare of outlawry, for there the party is attaint indeed, but not found guilty, for if he reverse the outlawry, he shall plead to the felony. ( And thus far for those larcinies, that relate to the dwelling-house of any wherein clergy is excluded.

V. The next ftatute, that excludes from clergy, is the statute of ì E. 6. cap. 12. and 2 & 3 E. 6. cap. 33. which exclude clergy from any perfon convict by verdict or confeffion of ftealing any horse, mare, or gelding, or wilfully ftanding mute.

But it takes not away clergy from acceffaries before or after.

[529]

VI. The ftatute of 8 Eliz. cap. 4. by which he that takes money or goods feloniously from the person of any other, privily, without his knowledge, is oufted of his clergy, if convict by verdict or confeffion, or if he challenge above twenty peremptorily, or stands mute, or will not directly answer, or be outlawed.

Upon this ftatute thefe things are obfervable: 1. It doth not alter the nature of the felony, and therefore, if what he takes away so be not above the value of twelve-pence, it is only petit larciny, as it was before, and fo differs from the cafe of robbery, Co. P. C. cap. 16. 2. The indictment must be purp. 68. Crompt. de Pace, fol. 33. b. fuant to the statute, viz. quod felonicè, &c. clam & fecretè a personâ, &c. cepit, otherwife the offender hath his clergy. 3. It doth not oust acceffaries of their clergy, nor it feems doth it ouft any of his clergy but him, that actually picks the pocket, and not those that are prefent, aiding and affifting, upon the reafon of Evan's cafe before, for it hall be taken literally,

By an act of this parliament, viz. * * * (p)

See table of the principal matters in Fofter, Tit. Clergy.

(01 But now by 3 & 4 W. & M cap 9. clergy is exprefly taken away in cafe of outJawry, or of ftanding mute, &c.

(e) This was left unfinished by our author, but I fuppofe the ftatute here meant is 22 Car. 2. cap. 5. which "All who thall feloniouyal woollen manufactures

" from the tenters, or fhall embezzle the "king's naval ftores, are excluded from "clergy

As to fubfequent ftatutes, which take away clergy from larciny in dwellinghoules, vide poftea fub fine cap.48.

CHAP.

CHAP. XLV:

Concerning petit larciny.

ETIT larciny is the felonious ftealing of money or goods not

above the value of twelve-pence without robbery, for altho that by fome opinions the value of twelve-pence make grand larciny, 22 Affiz. 39. per Thorp, yet the law is fettled, that it must exceed twelve-pence to make grand larciny, Weft 1. cap. 15. (a) 8 E. 2.

Coron. 404.·

The judgment in cafe of petit larciny is not lofs of life, but only to be whipt, or fome fuch corporal punishment less than death, and yet it is felony, and upon conviction thereof the offender lofeth his goods, for the indictment runs felonicè. 27 H. 8. 22.

A party indicted of petit larciny and acquitted, yet if it be found he fled for it, forfeits his goods, as in cafe of grand larciny. 8 E. 2. Coron. 406. Stamf. P. C. p. 184. a.

But in cafe of petit larciny there can be no acceffaries neither be fore nor after. P. 9 Jac. 12 Co. Rep. 81.

If two or more be indicted of stealing goods above the value of twelve-pence, tho in law the felonies are feveral, yet it is grand larciny in both. 8 E. 2. Coron. 404.

But if upon the evidence it appears, that A. ftole twelve-pence at one time, and B. twelve-pence at another time, fo that the acts themfelves were feveral at feveral times, tho they were the goods of the fame perfon, this is petit larciny in each, and not grand larciny in

either.

If A. be indicted of larciny of goods to the value of five shillings, yet the petit jury may upon the trial find it to be but of the value of twelve-pence, or under, and fo petit larciny. 41 E. 3. Coron. 451. 18 Affiz. 14. Stamf. P. C. p. 24. b.

[531]

If A. fteal goods of B. to the value of fix-pence, and at another time to the value of eight-pence, fo that all put together exceed the value of twelve pence, tho none apart amount to twelve-pence, yet this is held grand larciny, if he be indicted of them altogether, Stamf. P. C.. p. 24. collected from the book of 8 E. 2. Caron. 415. Dalt. cap. 101. p. 259. (b)

(a) z Co. Inftit. 190.

(b) New Edit. cap. 154, p. 494•

But