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CHAP. XLVI.

OFFENCES AGAINST PROPERTY.

[See 4 Black. Com. chaps. 16, 17; 4 Steph. Com. chap. 5.]

Arson.]-Arson is the malicious and voluntary burning the house of another by night or by day. By the 7 Will. 4 and 1 Vic. c. 89, s. 2, whosoever shall maliciously set fire to any dwelling-house, any person being therein, shall be guilty of felony, and shall be punished with death. By s. 3, whosoever shall unlawfully and maliciously set fire to any church or chapel, or shall unlawfully or maliciously set fire to any house, stable, outhouse, warehouse, barn, granary, hovel, shed, or fold (7 & 8 Vict. c. 62), whether in the possession of the offender or in the possession of any other person, with intent thereby to injure or defraud any person, shall be guilty of felony, and be transported for life, or fifteen years, or be imprisoned for three years. And the like punishment is provided for maliciously setting fire to any hay, straw, wood, &c., or implements of husbandry being in any farm-house or building, with intent to set fire to such farm-house or building and to injure or defraud any person.

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Burglary.]-Burglary is the breaking and entering the mansion-house of another, to the intent to commit some felony within the same, whether the felonious intent be executed or not. There must be both a breaking and an entering to constitute this offence; and it seems they ought to be such as will enable the burglar to commit the intended felony. To enter a house by a door or window which is left open, or through a hole made before by another person, is not a sufficient breaking; but to shove up a window, to lift up the latch of a door, or the like, is such a breaking in the eye of the law as will satisfy the offence; and any the least entry, as by putting a foot over the threshold, or a hook into a window, is also sufficient. And by 7 & 8 Geo. 4, c. 29, s. 11, if the entry be obtained without breaking, and the burglar in the night-time break out of the house, it is such a breaking and entry as will amount to this offence. A house wherein a man dwells but for part of the year, or which one has hired to live in, and brought part of his goods to, but has not yet lodged in it, or a chamber in one of the inns of court, and even a common lodging-room, if the landlord do not sleep under the same roof, are all of them the mansion-houses of those who dwell therein; and even part of a house which is divided, and has an outer door of its own to the street. Formerly, all out-buildings, as barns, stables, dairy-houses, shops, workshops, &c., which either adjoin to the house or are within what is called the curtilage, or in which the owner or any part of his family sleep, were considered as part of the house, but by 7 & 8 Geo. 4, c. 29, s. 13, this is not now so, unless there be a communication between such building and dwelling-house, either immediately or by means of a covered and inclosed passage leading from the one to the other. The felony intended to be committed may be either

a felony at common law or by statute; but the indictment must state, and the verdict find, an intention to commit some felony; for if it appear that the offender meant only to commit a trespass, he is not guilty of burglary.

Larceny.]- Larceny is either simple or mixed. Simple larceny was also formerly distinguished into grand and petit. Grand larceny was where the goods amounted to more than the value of twelve pence; petit larceny was where the goods so taken were of or under the value of twelve pence. But this distinction is now abolished by 7 & 8 Geo. 4, c. 29, s. 2, by which any larceny, whatever the value of the property stolen, is now subject to the same incidents as grand larceny was before the act. Mixed or compound larceny is a felonious taking of the goods of another, either from his person or his house, and includes the crimes of robbery and housebreaking.

Larceny, or theft, is the unlawful taking and carrying away of the personal goods of another, with intent to deprive the owner of the same, against the will of the owner.

away.

Every larceny must include a trespass; and if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them Thus if a person find goods, and convert them animo furandi to his own use, or obtain the actual delivery of them from the owner for a special purpose, as a carrier to convey them to a certain place, or a tailor to make them into clothes, and afterwards converts them, yet neither the finder, the carrier, nor the tailor can be guilty of larceny: but if the goods were not lost, or the carrier or tailor pretended to convey them, or to make them up, with a dishonest or fraudulent intent to carry them feloniously away,

LARCENY.

395 in such case the law will consider them, notwithstanding the delivery, as constructively remaining in the possession of the owner; and being taken from his possession, the parties carrying them away will be guilty of larceny. To constitute larceny, the property must be taken from the possession of the owner; and, therefore, where a man intending to go a distant journey hires a horse fairly and bond fide for that purpose, and evidences the truth of such intention by actually proceeding on his way, and afterwards rides off with the horse, it is no theft, because the felonious design was hatched subsequent to the delivery; and the delivery having been obtained without fraud or design, the owner parted with his possession as well as his property, and thereby gave the hirer complete dominion over the horse, upon trust that he would return him when the journey was performed; but where one Peares hired a horse to go a few miles from town, but, instead of going, immediately sold the horse, and the jury found that he had hired it with a fraudulent view and intention to convert it to his own use, the judges held it to be felony; and many cases of a similar nature have received the like determination. A person, also, who has the bare charge or special use of goods, but not the possession, as a shepherd who looks after sheep, a butler who takes care of plate, may be guilty of felony in taking them away. And by 7 & 8 Geo. 4, c. 29, whoever shall steal a chattel or fixture let to be used by him in any house or lodging shall incur the penalties of simple larceny.

The bare removal from the place in which the goods are taken, although the thief do not quite make off with them, is a sufficient asportation or carrying away; as when a guest having taken the sheets from his bed had removed them into the hall, but was detected before he got out of the house.

In larceny at the common law the goods taken must be personal goods, for larceny cannot be committed of things fixed to the freehold, or savouring of the realty, or where their whole value is derived from the relation they bear to some other things, as bonds, deeds, and other securities. So, also, they ought not to be things of a base nature, as dogs, cats, bears, and the like; but of wild animals, as fish in a river, deer, hares, or conies, in a park, field, or warren, if they be restrained or appropriated, or reduced to tameness, larceny may be committed. But things not formerly the subject of larceny at the common law are now made punishable as larceny. Thus, by the 7 & 8 Geo. 4, c. 29, provisions are made against stealing valuable securities, such as bonds, bills, and the like, and various other kinds of property, as records, wills, title deeds, deer, hares, or conies, beasts or birds, pigeons, fish, oysters, ores in mines, trees or shrubs, fences, stiles, or gates, plants, fruits, &c., fixtures in houses, squares or street fences; by 1 Vict. c. 87, s. 8, as to plundering wrecks; 8 & 9 Vict. c. 47, as to stealing dogs.

The general punishment of simple larceny is transportation for seven years, or imprisonment for two years, hard labour, solitary confinement, and whipping. In some cases the punishment is more severe; as, stealing goods or articles of silk, woollen, linen, or cotton in process of manufacture, in any building, field, or other place, to the value of ten shillings, is transportation for fifteen years and not less than ten, or imprisonment for three years (7 & 8 Geo. 4, c. 29, s. 16; 1 Vict. c. 90). So, stealing any horse or cattle, or killing same for its skin, is liable to the same punishment (a). On the other hand, in the cases of juvenile offenders of or under the age of fourteen years, committing, or aiding, &c., to commit, any offence declared to be

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