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or un loosing any other fastening which the owner has provided. But if a per: son loaves his doors or windows open, it is his own folly and negligence, and if a man enters therein it is no burglary; yet, if he afterwards unlocks an inner or chamber door, it is so.(g) But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit.Th. So, also, to knock at the door, and upon opening it to rush in with a felonious intent; or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been *9977 adjudged burglarious, though there was *no actual breaking; for the

--] law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process.(i) And so, if a servant opens and enters his master's chamber-door with a felonious design, or if any other person lodging in the same house or in a public inn opens and enters another's door with such evil intent, it is burglary. Nay, if the servant conspires with a robber and lets him into the house by night, this is burglary in both;(k) for the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease rather aggravates than extenuates the guilt. As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient; as, to step over the threshold, to put a hand or a hook in at a win. dow to draw out goods, or a pistol to demand one's money, are all of them bur. glarious entries.(111 The entry may be before the breaking, as well as after: () 1 Hal. P. C. 553.

(*) Stra. 8$1. 1 IIal. P. C. 553. 1 Hawk. P. C. 103. (") 1 Hawk. P. C. 102. 1 Hal. P. C. 552.

(11 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108.

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1 Hawk. P. C. 102.

So to push open massive doors which shut by their own weight is burglarious, though there is no actual fastening. 2 East, P. C. 487. Pulling down the sash of a window is a breaking, though it has no fastening and is only kept in its place by the pulley-weight: it is equally a breaking although there is an outer shutter which is not put to. Russ. & Ry. C. C. 451. And where a window opens upon hinges, and is fastened by a wedge, so that pushing against it will open it, forcing it open by pushing against it is sufficient to constitute a breaking. Russ. & Ry. C. C. 355. But where the prisoner broke out of a cellar by lifting up a heavy flap by which the cellar was closed on the outside next the street, (the flap was not bolted, but it had bolts,) six of the learned judges were of opinion that there was a sufficient breaking to constitute burglary; the remaining six were of a contrary opinion. Russ. & Ry. C. Č. 157. And it is to be observed that even when the first entry is a mere trespass, being as per janua aperta, if the thief afterwards breaks open any inner room, he will be guilty of burglary, (1 Hale, 553;) and this may be done by a servant who sleeps in an adjacent room unlatching his master's door and entering his apartment with intent to kill him. 1 Hale, 554. But lord Hale doubts whether a guest at an inn is guilty of burglary by rising in the night, opening his own door, and stealing goods from other rooms, 1 Hale, 554. And it seems certain that breaking open a chest or trunk is not in itself burglarious, (Fost. 108, 109;) and, according to the better opinion, the same principle applies to cupboards, presses, and other fixtures, which, though attached to the freehold, are intended only the better to supply the place of movable depositories. Fost. 109.-Cutty.

id It will be burglary to unlatch an inner door with a felonious intent; and whatever would be a breaking of an outer door will also be a breaking of an inner door to consti. tute burglary. See 2 East, P. C. 488.

But it does not seem to be a burglary to break the doors of cupboards, presses, and closets. Ibid.—Chitty.

11 So if the prisoner breaks open a shop-window and with his hand takes out goods, the offence is complete. Fost. 107. Russ. & Ry.C. C. 499, S. P. Introducing the hand between the glass of an outer window and an inner shutter is sufficient entry to constitute burglary. Russ. & Ry, C. C. 341. And where several having broken open a house, and, attempting to enter, are opposed by the owner, and in making a pass at him the hand of one of the party is within the threshold, he will be guilty of burglary, 1 Hale, 553. If, however, an instrument has been thrust into the window, not for the purpose of taking out property, but only calculated to form the aperture, this will not be regarded as an entry, (i Leach, 406;) or if a house be broken open, and the owner, through the fear occasioned by the circumstance, throw out his money, the burglary will not be conpleted. ,1 Hale, 555. It seems doubtful whether shooting through a window is sufficient by the entry of the shot discharged; but it seems the better opinion that it is, as in this case a felony by killing is as much attempted as in the introduction of an instrument &

for, by statute 12 Anne, c. 7, if a person enters into the dwelling-house of another without breaking in, either by day or by night, with intent to commit felony, or being in such a house shall commit any felony, and shall in the night break out of the same, this is declared to be burglary, there having before been different opinions concerning it, lord Bacon(m) holding the affirmative and Sir Matthew Hale(n) the negative. But it is universally agreed that there must be both a breaking, either in fact or by implication, and also an entry, in order to com. plete the burglary.12

4. As to the intent; it is clear that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. And it is the same whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, *a murder, a rape, or any other felony, is burglary; whether the thing be actually perpetrated or not. Nor does L

[*228 it make any difference whether the offence were felony at 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.(0)13

Thus much for the nature of burglary, which is a felony at common law but within the benefit of clergy. The statutes, however, of 1 Edw. VI. c. 12, and 18 Eliz. c. 7, take away clergy from the principals, and that of 3 & 4 W. and M. C. 9, from all abettors and accessories before the fact.(p) And, in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime.(0)" (*) Elm. 65. () 1 Hal. P. C. 554.

punished with transportation for seven years. P) Burglary in any house belonging to the Plate-Glass (1) Pott. Antiq. b. i. c. 26.

Company, with intent to steal the stock or utensils, is, by stat. 13 Geo. III. c. 38, declared to be single felony, and

(0) 1 Hawk. P. C. 105.

felony by stealing is attempted. 1 Hale, 555. Hawk. b. i. c. 38, s. 7. See 4 Camp. 220. 1 Stark. 58.-CHITTY.

12 The act now in force is 7 & 8 Geo. IV. c. 27.-Chitty.

13 But if a seryant intrusted by his master to sell goods receives money to his use, con ceals it in the house instead of paying it over, and, after his dismissal, breaks the house and steals it, the entry is not burglarious, because there was no felony in the original taking. 1 Show. 53. And even where prisoners were proved to have broken open a house in the night-time, to recover teas seized for want of a legal permit for the use of the person from whom they were taken, an indictment for burglary with intent to steal was holden not to be supported. 2 East, P. C. 510.-CHITTY.

14 The punishment of this crime now varies according to the circumstances under which it is committed, it being enacted, by stat. 1 Vict. c. 86, s. 2, that whoever shall burglariously break and enter into any dwelling-house, and shall assault with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike such person, shall be guilty of felony punishable with death; but, by s. 3, the simple crime of burglary is punishable only with transportation for life or for not less than ten years, or imprisonment for three years, -and now penal servitude may be substituted. And now, further, by stat. 14 & 15 Vict. c. 19, ss. 1, 2, any person found by night armed with any dangerous weapon, with intent to enter any dwelling and to commit felony therein, or found in the possession, without lawful excuse, of housebreaking instruments, or with his face blackened or disguised, or found by night in any building with intent to commit any felony, shall be guilty of a misdemeanour, punishable with imprisonment, with or without hard labour, not exceeding three years,--and now with penal servitude.--STEWART.

487

CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

*229]

*The next and last species of offences against private subjects are 40] 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.

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.

And, first, of simple larceny, which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larceny in general, and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny, then, is “ the felonious taking and carrying away of the per*9207 sonal goods of another.” This *offence certainly commenced then,

I whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual in the occupation of what he has seized to his present use seems to be the only offence of this kind incident to such a state. But, unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen,(a) any violation of that property is subject to be punished by the laws of society; though how far that punishment shall extend is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition.

(a) See book ii. p. 8, &c. By stat. 7 & 8 Geo. IV. c. 29, s. 2, it is enacted “that the distinction between grand and petit larceny shall be abolished, and every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the commencement of this act; and every court whose power as to the trial of larceny was before the commencement of this act limited to petty larceny shall have power to try every case of larceny the punishment of which cannot exceed the punishment hereinafter mentioned for simple larceny, and also to try all accessories to such larceny."

By sect. 3, every person convicted of simple larceny, or of any felony thereby made punishable like simple larceny, shall (except in the cases thereinafter otherwise provided for) be liable to transportation for seven years, or imprisonment not exceeding two years, and, if a male, to one, two, or three public whippings; and, by sect. 4, where the sentence is imprisonment, the courts have a discretionary power to award hard labour or solitary confinement in addition. This observation has been introduced here that the reader may observe how far the present provisions of the law vary from the text in his progress through this important chapter, and to remind him that the subtle distinctions between grand and petty larceny are now entirely abolished.

By sect. 61, in every felony punishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree; and every accessory after the fact (except only a receiver of stolen property) shall on conviction be liable to imprisonment for any term not exceeding two years; and every person aiding, abetting, counselling, or procuring the commission of any misdemeanour punishable under this act, shall be liable to be indicted and punished as a principal offender. As to the venue in cases of larceny, see 7 Geo. IV. c. A t, ss. 12, 13.-Chitty.

I. It must be a taking.

This implies the consent of the owner to be wanting.

? The cases upon this important requisite of the offence of larceny are so numerous, and the distinctions so subtle, that it will be necessary to go into considerable detail to give a complete view of the law upon the subject. See, in general, 3 Chitt. Crim. L. 2d ed. 917 to 924.

lst. Where the offender lawfully acquired the possession of the goods, but under a bare charge, the owner still retaining his property in them, the offender will be guilty of larceny at common law in embezzling them. Thus, in addition to the instances put by the learned author, of the butler, the shepherd, and guest at an inn, if a master deliver property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or to get change, or deposit with a banker, the servant will be guilty of felony in applying it to his own use, for it still remains in the constructive possession of its owner. 2 Leach, 870, 942; and see 2 East, P. C. 563 ; sed vide East, P. C. 562. R. & R. C. C. 215. 4 Taunt. 258, S. C. If a banker's clerk is sent to the money-room to bring cash for a particular purpose, and he takes the opportunity of secreting some for his own use, (1 Leach, 344,) he is guilty of larceny. And see 1 Leach, 251. Kelw. 33. Cowp. 294. And if several persons play together at cards, and deposit money for that purpose, not parting with their property therein, and one sweep it all away and take it to himself, he will be guilty of theft, if the jury find that he acted with a felonious design. 1 Leach, 270. Cald. 295. So if there be a plan to cheat a man of his property, under colour of a bet, and he parts with the possession only, to deposit as a stake with one of the confederates, the taking by such confederate is felonious. Russ. & Ry. C. C. 413. And if a bag of wheat be delivered to a warehouseman for safe custody, and he take the wheat out of the bag and dispose of it, it is larceny. Russ. & Ry. C. C. 337. And where a banker's clerk took notes from the till, under colour of a check from a third person, which check he obtained by having entered a fictitious balance in the books in favour of that person, it was held he was guilty of felony, the fraudulent obtaining the check being nothing more than mere machinery to effect his purpose. 4 Taunt. 304. R. & R. C. C. 221, s. C. 2 Leach, C. C. 1083. And where one employed as a clerk in the daytime, but not residing in the house, embezzles a bill of exchange which he received from his master in the usual course of business, with directions to transmit it by the post to a correspondent, it was held larceny. 2 East, P. C. 565; and see 2 Chitt. C. L. 2d ed. 917, b. And where goods have not been actually reduced into the owner's possession, yet if he has intrusted another to deliver them to his servant, and they are delivered accordingly, and the servant em bezzle them, he will be guilty of larceny; as where a corn-factor, having purchased a cargo of oats on board a ship, sent his servant with his barge to receive part of the oats in loose bulk, and the servant ordered some of them to be put into sacks, which he afterwards embezzled, this was holden larceny. 2 East, P. C. 1798. 2 Leach, 825.

The learned commentator has already noticed the 21 Hen. VIII. c. 7, makıng the embezzlement of goods above the value of forty shillings felony, when intrusted to a servant by his master. The act extends only to such persons who were servants to the owner of the goods, both at the time of their delivery and when they were stolen. 1 Hawk. c. 33, s. 12. 2 East, P. C. 562. To bring the case within the act, the goods must have been delivered to the servant to keep for the master; and the words “kept to the use of the master" imply that they are to be returned to the master. 2 East, P. C. 562. The act does not extend to goods the actual property of which were not in the master at the time; and therefore it is said that if the property be changed, as by melting the money down, or malting corn, and then it be taken away, it is not within the statute. 1 Hawk. c. 33, s. 15. 2 East, P. C. 563; sed quære. See 1 Hawk. c. 33, s. 15. The act only extends to where the owner has actually had them in his possession, and not where his servant has merely received them to his use. No wasting or consuming the goods is within the act, however wilful. Hawk. b. i. c. 33, s. 14.

2dly. Where the offender unlawfully acquired the possession of goods, as by fraud or force, &c., with intent to steal them, the owner still retaining his property in them, such an offender will be guilty of larceny in embezzling them. Therefore, in addition to the instances mentioned in the text, hiring a horse on pretence of taking a journey, and immediately selling it, is larceny, because the jury found the defendant acted animo furandi in making the contract, and the parting with the possession had not changed the nature of the property. 2 East, P. C. 685. 1 Leach, 212, and see 2 Leach, 420. 2 East, P. C. 691. So, obtaining a horse by pretending another person wanted to hire it to go to B., but in truth with intent to steal it, and not going to B., but taking the horse elsewhere and selling it, is larceny. 1 Leach, 409. 2 East, P. C. 689. So where the prisoner, intending to steal the mail-bags from a post-office, procured them to be let down to him by a string from the window of the post-office, under pretence that he was the mail-guard, he was held guilty of larceny. 2 East, P. C. 603. It is larceny for a person hired for the special purpose of driving sheep to a fair to convert them to his own use, he having the intention so to do Th :refore no delivery of the goods from the 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 lar

at the time of receiving them from the owner. 1 Ry. & M. C. C. 87. And where a man ordered a pair of candlesticks from a silversmith, to be paid for on delivery, to be sent to his lodgings, whither they were sent accordingly, with a bill of parcels, by a servant, and the prisoner, contriving to send the servant back under some pretence, kept the goods, it was holden larceny. Cited in 2 Leach, 420. And if a sale of goods is not completed, and the pretended purchasor absconds with them, and from the first his intention was to defraud, he is guilty of stealing, (1 Leach, 92;) and to obtain money from another by ring-dropping is a similar offence, if there was an original design to steal, (1 Leach, 238; 2 Leach, 572;) and where the owner of goods sends them by a servant, to be delivered to A., and B., pretending to be A., obtains them from him, B. is guilty of larceny. 2 East, P. C. 673. So where the prisoner, pretending to be the servant of a person who had bought a chest of tea deposited at the East India Company's warehouse, got a requestpaper and permit for the chest, and took it away with the assent of a person in the company's service who had the charge of it, this was held felony. R. & Ry. C. C. 173. So to obtain a bill of exchange from an endorsee under a pretence of getting it discounted, is felony, if the jury find that the party did not intend to leave the bill in the possession of the defendant previous to receiving the money to be obtained on his credit, and that he undertook to discount with intent to convert it to his own use, (1 Leach, 294;) and it seems that if a person procure possession of a house with an intent to steal the lead affixed to it, he may be indicted, on the 4 Geo. II. c. 32, for the statutable larceny. 2 Leach, 850.

In all these cases the defendant's original design in obtaining the goods was felonious, and the owner never parted with his property therein ; for where either is not the case there can be no larceny, as will appear from the following instances. Thus, where a house was burning and a neighbour took some of the goods, apparently to save them from the flames, and afterwards converted them to his own use, it was holden no felony, be cause the jury thought the original design honest. 1 Leach, 411, notes. And it is certain that if the property in effects be given voluntarily, whatever false pretence has been used to obtain it, no felony can be committed. 1 Hale P. C. 506. R. & R. C. C. 225, S. P. Thus, obtaining silver on pretence of sending a half-guinea presently in exchange is no felony. 2 East, P. C. 672. So, writing a letter in the name of a third person to borrow money, which he obtains by that fraud, is only a misdemeanour, (2 East, P. C. 673;) and it makes no difference, in these cases, that the credit was obtained by fraudulently using the name of another to whom it was intended to be given, (1 Leach, 303, notes, 2 East, P. C. 673. R. & R. C. C. 225;) and if a horse-dealer delivers a horse to another on his promise to return immediately and pay for it, the party's riding off and not returning is no felony. 1 Leach, 467. 2 East, P. C. 669. So if à tradesman sells goods to a stranger as for ready money, and sends them to him by a servant, who delivers them and takes in payment for them bills which prove to be mere fabrications, this will be no larceny, though the party took his lodgings for the express purpose of obtaining the goods by fraud; because the owner parted with his property. 2 Leach, 614. So fraudulently winning money at gaming, where the injured party really intended to play, is no larceny, though a conspiracy to defraud appear in evidence. 2 Leach, 610. So brokers, bankers, or agents embezzling securities deposited with them for security or any special purpose are not guilty of larceny, (4. Taunt. 258. 2 Leach, 1054. R. & R. C. C. 215, S. C.;) but this decision occasioned the 52 Geo. III. c. 63 to be passed, making it a misdemeanour in brokers, bankers, and others to embezzle securities deposited with them for safe custody or for any special purpose, in violation of good faith and contrary to the special purpose for which they were deposited. Thus, in all cases where a voluntary delivering by the prosecutor is the defence to be relied on, two questions arise: first, whether the property was parted with by the owner; secondly, whether, supposing it was not, the prisoner, at the time he obtained it, conceived a felonious design. In the first case, no fraud or breach of trust can make a conversion larceny; in the second, the complexion of the offence must depend on the felonious design.

3dly. Where the offender lawfully acquired the possession of and qualified property in goods under colour of bailment, but with the intention of stealing them; or where the bailment has been determined either by the wrongful act of the offender or by the intention of the parties, if he afterwards embezzle such goods he will be guilty of larceny. For in the first case, after the determination of the special contract by any plain and unequivocal wrongful act of the bailee inconsistent with that contract, the property, as against the bailee, reverts to the owner, although the actual possession remain in the bailee. 2 East, P. C. 691, 627. The most remarkable case of this description is that of a carrier pointed out by the learned commentator. So the conver. sion of money with a felonious intent, which was found in a bureau delivered to a car

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