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The statute of Alabama, making "promissory notes" the subject of larceny, does not include "bank-notes." An indictment, alleging the larceny of "bills of credit," is bad, the State having no authority to issue such bills. Culp v. State, 1 Porter, R. 33.

An indictment will not lie for larceny of "bills of credit" on the United States' Bank of amount less than such bank is authorized by its charter to issue. Ib. 33.

Invalid bonds, notes, &c. are not the subject of larceny. Wilson v. State, Ib. 118. Money and bank-notes and coin are personal goods within the meaning of the 16th section of the Crimes Act of 1790, c. 9, respecting stealing and purloining on the high seas. 1 Peters's U. S. Stat. at Large, 114. U. States v. Moulton, 5 Mason, 537. "Personal goods," under the act of Congress of 1790, c. 9, do not include choses in action, the latter not being the subject of larceny at common law. U. States v. Davis, 5 Mason, 356.

At common law a chose in action is not the subject of larceny. Culp v. State, 1 Port. 33.

Doves, being animals feræ naturæ, cannot be subjects of larceny, unless when in the custody of the owner, as in a dove-house. Commonwealth v. Chace, 9 Pick. 15. So of bees. Wallis v. Mease, 3 Binn. R. 546.

A martin in a trap in the woods cannot be a subject of larceny while it remains in the trap. Norton v. Ladd, 5 N. Hamp. R. 203.

A mere letter is not a subject of larceny, and taking it away is not a criminal offence. Payne v. People, 6 Johns. 103.

An indictment lies for taking skins from an Indian camp in the absence of the Indians. Pennsylvania v. Becomb, Addis. 386.

Under the act of South Carolina of 1826, corn growing in a field is a subject of lar ceny although not previously severed from the soil. State v. Stephenson, 2 Bailey, 334. MASSACHUSETTS.-For the statutes, see Mass. Rev. Stat. ch. 126. §§ 11. 12. 13. 14. 15. 16. 17. 18. 19. Ed. 1836. Supp. to Rev. Stat. c. 31. p. 112. ed. 1839. Where several pack. ages of goods were delivered to a common carrier, to be transported in a body, an abstraction of one entire package, constitutes a taking in the sense of larceny. Com. v. Brown, 4 Mass. R. 580. Dame v. Baldwin, 8 Id. 518. So where a miller having received barilla to grind, fraudulently retained part of it, returning a mixture of barilla and plas ter of Paris, it was held to be larceny. Com, v. James, 1 Pick. R. 375. So articles of clothing on a dead body, cast ashore from a wrecked vessel, are the subjects of larceny. Morison v. Sayward, 13 Id. 402.

A person stealing goods in one State and bringing them into another, may be indicted in the latter for the larceny. Com. v. Culling, I Mass. R. 116. Com. v. Andrews, 2 Id. 14. So also in N. Y. see post. So also in Connecticut, Rex v. Peat, Root's R. 69. The State v. Ellis, 3 Conn. R. 185. So in Vermont, The State v. Bartlett, 11 Verm. R. 650. So in Ohio, The State v. Hamilton, 11 Ohio R. 351. Vide U. S. v. Davis, 5 Mason, 256. Sed aliter in N. C. The State v. Brown, 1 Hayes, 160. See also Simmons v. Com. 5 Binn. R. 617, where the subject is much discussed. The State v. Knight, 1 Tayl. R. 65. The People v. Gardner, 2 Johns. R. 477. The People v. Schenk, Id. 479. This question is still open to much difficulty. In some States it has been settled by legislation. See post. p. 516o.

So also, may the receiver of such stolen goods, be indicted in the latter State for re'ceiving them. And one aiding and abetting in a larceny in one county, and afterwards concerned in the possession and disposal of the stolen property, in another county, though the goods were removed to the latter county, without his agency or consent, may be convicted of larceny in this latter county. Com. v. Dewitt, 10 Mass. R. 154.

The offence of breaking and entering "a house not occupied as a dwelling house," in the night time, and stealing therein property of less value than $100, is only a simple larceny, and therefore to be punished with a maximum of one year's imprisonment in the State prison. Wilde v. The Com. 2 Metc. 408. So of stealing in a dwelling house, shop, &c. in the night time: though by the Rev. Stat. the same offence, if committed in the day time, is made an aggravated larceny. Com. v. Tuck, 20 Pich. R. 356. Hopkins v. Com. 3 Metc. 460. Devoe v. Com. Id. 316. Evans v. Com. 3 1d. 453. An indictment for stealing in a dwelling house, shop, &c. in the day time, property of less value than $100, must contain the averment of day time, or it will only be good as an indictment for a simple larceny. Haggett v. Com. 3 Metc. 357. Hopkins v. Com. Id. 460.*

It has been held in some cases, that when the thing stolen is not there in the usual course, and is not such as is ordinarily kept there, stealing it, is not larceny," in a dwelling

In an indictment for larceny, the articles alleged to be stolen, must be averred to be "of the goods and chattels," of the right owner, if known; or of the goods and chattels of some person unknown, Com. v. Morse, 14 Mass. R. 217, 218. Com. v. Manley, 12 Pick. R. 173.

On an indictment for larceny, if value is alleged of part of the articles stolen, and none of the remainder, though charged to consist of coin, judgment will be arrested as to that part to which no value is ascribed. Com. v. Smith, 1 Mass. R. 245.

A count in an indictment, charging that the defendant broke and entered a shop, with intent to commit a larceny, and did then and there commit a larceny, is not bad for duplicity. Com. v. Tuck, 20 Pick. R. 356.

The same, of a charge of breaking and entering a dwelling-house, and committing a larceny. Com. v. Hope, 22 Pick. R. I.

An indictment for larceny, charging the goods stolen to be the property of A. is not supported by evidence that they were the property of A. & B. who were partners. Com. v. Trimmer, 1 Mass. R. 476.

On a charge of shop breaking and larceny, possession of part of the stolen goods is prima facie evidence, both of the larceny of the whole property stolen, and of the breaking and entering. Com. v. Millard, 1 Mass. R. 6.

The word "barilla" is good in an indictment, as a denomination of a subject of lar. ceny. Com. v. Jones, 1 Pick. R. 375.

Under the stat. of 1784, c. 66. § 1. providing against the stealing of "any note or certificate of any bank, or any public office, securing the payment of money to any person, or certifying that the same is due," an indictment was held sufficient which charged the defendant with stealing a "bank note" of a certain value, without a more particular description of the note. Com. v. Richards, 1 Mass. R. 337.

An indictment under the same stat. c. 66. § 8. for breaking a "store" is not sufficient, although the words of the stat. are, "warehouse, shop, or other building whatsoever," unless it aver that the store is a building. Com. v. M Monagle, 1 Mass. R. 517. Sed aliter, under stat. 1804. c. 143. § 6. which contains the word store. Com. v. Lindsey, 10 Mass. R. 153.

In an indictment for breaking and entering an office in the night time, under the last mentioned stat. c. 143. § 4, it is not necessary to aver that the office is "not adjoining to, or occupied with a dwelling-house." Devoe v. Com. 3 Metc. R. 316. Evans v. Com. Id. 453. Phillips v. Com. Id. 588. Sed vide also Com. v. Tuck, 20 Pick. R. 356.

Stealing in the night time, in any dwelling-house, &c., was not provided for in the Rev. Statutes. (See Com. v. Tuck, cit. sup. and Hopkins v. Com. 3 Metc. R. 460.) but this omission was supplied by the act of Feb. 18, 1843. See Tully v. Com. 4 Metc. R. 357.

NEW YORK.-The statutes of New York will be found in 2 Rev. Stat. 679. §§ 63, 64, 65. 2 Id. 690, §§ 1, 66, 67, 68, 69, 70.

When the personal property of one is through inadvertence left in the possession of another, and the latter animo furandi conceals it, he is guilty of larceny; knowing it to be the property of another, his possession will not protect him from the charge of felony. The People v. McGarren, 17 Wend. R. 460. The People v. Cogdell, 1 Hill R. 94.

To constitute larceny the possession of the property must be acquired animo furandi. The People v. Anderson, 14 Johns. R. 294.

A mere intention existing afterward to convert the property, will not constitute the offence of larceny. Id.

One who obtains the bailment of goods fraudulently, intending to deprive the owner of his property, may be convicted of larceny under an indictment alleging that he felo

house," &c., as linen left in a shop to be sent to a seamstress; Anony. 8 Mod. 165; or to a laundress. 2 East's P. C. 642; or a watch left at a watchmaker's shop to be repaired; Stone's case, 1 Leach, C. C. 334; 2 East's P. C. 643. S. C.; or a coachman's coat hung up in a stable, that not being the usual place of keeping it; Sea's case, 1 Leach, C. C. 304; 2 East, P. C. 643. S. C; or uncurrent money on board of a ship in port; Grimes's case, 2 East's P. C. 647; Foster, 78, 79; but such a construction seems to be inconsistent with the plain meaning of the law, and the reason of the exception is not very apparent. Where the thing stolen was left in a house by mistake, and was such as might in the ordinary course, be in the house, the stealing of it from the house was held to be larceny in a dwelling house, within the construction of the statute against such larceny. Car. roll's case, Mood. Cas. 89; Mass. Com. Rep. 25.(n)

niously stole, took, and carried away the property, &c. Cary v. Hefterling, 1 Hill's R. 311.

In the prosecution of an indictment for a larceny, if the crime be established in respect to a single article, though the indictment describe several, the defendant may be convicted. 3 Hill's R. 194.

A trial and acquittal for robbery is a bar to an indictment for larceny where the property alleged to have been taken is the same. The People v. McGowan, 17 Wend. R. 386.

The rule in such case is, that if the former indictment might have been sustained by proof which would be sufficient to sustain the second indictment, a prima facie case is made out for the prisoner by the production of the record of acquittal, and without further proof on the part of the prosecution, he is entitled to be discharged. Id.

On the trial of an indictment for stealing foreign bank bills, it is incumbent on the prosecutor to produce at least prima facie evidence of the existence of such banks and of the genuineness of the bills. The People v. Caryl, 12 Wend. R. 547.

As to the bills themselves, it is not necessary to prove by positive testimony that the names subscribed to them are in the handwriting of the officers of such banks; but it should at least be proved by a witness familiar with the bills, that he believed them to be genuine. Id.

By the Rev. Stat. 2 Rev. St. 698, § 4, it is enacted that every person who shall feloniously steal the property of another in any other state or county, and shall bring the same into this state, may be convicted and punished in the same manner as if such lar. ceny had been committed in this State; and in every such case such larceny may be charged to have been committed in any town or city into or through which such stolen property shall have been brought. See The People v. Burke, 11 Wend. R. 129. The People v. Gardner, 2 Johns. R. 477, and the remarks of the Ch. Just. on this latter case in The People v. Burke.

The principle established by the N. Y. Stat. was applied without the intervention of a statute in Com. v. Culling, 1 Mass. R. 116, and Com. v. Andrews, 2 Id. 14. See this note, p. 516m.

The true construction of the Stat. Sess. 42. ch. 246, § 4. providing that every person who shall be a second time convicted of petit larceny shall be adjudged to imprisonment in the State prison, is that the second offence must be committed after a conviction for the first, in order to warrant an enhanced penalty. It is not enough that there be two successive petit larcenies by the same person which are severally and successively prosecuted to conviction; though the second indictment charge the first conviction as a part of the crime. The People v. Butler, 3 Cow. R. 347.

An indictment for petit larceny, charging it as a second offence, is good, though in respect to the first offence, it merely alleges that the defendant was convicted, &c. without averring in terms a judgment or sentence, and though it does not specify the property to which the first offence is related, or the person from whom it was stolen: aliter, if the indictment omits to aver that the defendant had been pardoned, or otherwise discharged from the first conviction, before the commission of the second offence. Stevens v. The People, 1 Hill's R. 261.

NEW JERSEY.-For the statute, see Elm. Dig. 107, 108.

If one takes the goods of another out of the place where they were put, though he is detected before they are actually carried away, the larceny is complete. The State v. Wilson, Coxe R. 439.

A prisoner cannot be tried by two justices of the peace on a charge for larceny, "without an accusation in writing." See Elm. Dig. 107, § 32. See Statutes of the State of N. J. revised in 1847, tit. VIII. Crimes and Punishments, p. 256.

PENNSYLVANIA.-The Statutes of Pennsylvania will be found in the Act of April 5, 1790, sect. 3.2 Smith's L. 531. Stroud's Purdon, 956. 6th ed. Id. 1051. 7th ed. sects. 4, 5.9. Act of 21 March, 1806. 4 Smith's L. 334. Stroud's Purd. 958, sects 1, 2. Act of 30 January, 1810. 5 Smith's L. 81. Stroud's Purd. 958. 6th ed. 1054. 7th ed. as to bank notes amended by Act of 10 March, 1817, sect. 1. 6 Smith's L. 412. Stroud's Purd. 959, 6th ed. 1055, 7th ed. The Act of 29 April, 1844, sect. 2. Famph. L. 513, enacts that in all cases where taxes are assessed and paid on dogs in Philadelphia and Allegheny counties, the said dogs shall be considered as personal property.

If the owner of goods part with the possession, for a particular purpose, and the person who receives the possession avowedly for that purpose, has a fraudulent intention to

make use of the possession, as the means of converting the goods to his own use, and does so convert them, it is larceny. But if the owner intends to part with the property, and delivers possession absolutely, and the purchaser receives the goods for the purpose of doing with them what he please, it is not larceny, although fraudulent means may have been used to induce him to part with them. Lewer v. Com. 15 S. & R. 93. 97.

Taking is a material part of larceny, but it may be presumed from the possession of the property. Penn v. Myers, Add. R. 320. Id. v. Becomb, id. 386.

At common law, larceny cannot be committed of a dog. Nor does the 4th sect. of the act of April, 1790, extend the crime beyond its ancient limits. Findley v. Bean, 8 S. & R. 571. But see the local act of April 29, 1844, § 2, sup.

Under the act of April 5th, 1790, an indictment for stealing bank notes must lay them as promissory notes for the payment of money, and therefore an indictment for stealing a "ten dollar note of the President, Directors and Company of the Bank of the United States," is bad. Com. v. Boyer, 1 Binn. R. 201.

Under the Act of 1810, an indictment for stealing bank notes must aver in general that they were issued by a bank incorporated by law, or name the bank, and aver that it was incorporated; or show in some sufficient manner that the notes were lawful, and therefore an indictment charging the defendant with stealing bank notes generally, describing them as "promissory notes for the payment of money," is bad. Spangler v. Com. 3 Binn. R. 533.

Under the act of Assembly of 1817, however, it is not necessary to state that the bank was duly incorporated. McLaughlin v. Com. 4. Raw. R. 464.

An indictment for stealing three promissory notes for the payment of money, commonly called bank-notes, "on the Bank of the United States,' was held to be good. ld. 464.

An indictment for stealing "a bank-note of the Bank of Baltimore," without describing it as a promissory note for the payment of money, was held bad under the act of 1790. Com. v. McDowell, 1 Browne, R. 360.

County orders are not bills of exchange, and are not enumerated in the act of 5th April, 1790. When a statute creates a felony, to authorize a judgment on conviction, the indictment must conclude contra formam statuti. Warner v. Com. 1 Barr. R. 154.

VIRGINIA. For the statutes see Rev. Code, c. 171, §. 6; Supp. to R. C. 295. 308; Rev. Code, ch. 152, §. 1; Rev. Code, ch. 154, §. 8: Rev. Code, ch. 160, §. 7.

A prosecution may be maintained under the Virginia act of 1806 for stealing a bank-note of any other State. Cummings v. Commonwealth, 2 Virg. Cas. 128.

The Virginia act of 1806, which made it felony to steal any "bank-note," embraced any available chose in action bearing that name; nor is the meaning of the term restricted by the 8th section of the act of 1819. Pomeroy v. Commonwealth, Ib. 342.

In the construction of this act of 1806 it has been held, that a general description of a bank-note, as one for a specified sum and current within the United States, without mentioning the name of the bank by which it was issued, is sufficient in an indictment for the larceny thereof. Id. 128.

On a prosecution for larceny of bank-notes it is not indispensably necessary to produce them on the trial. Moore v. The Com. 2 Leigh, R. 701.

No other possession of bank-notes, &c, mentioned in this act, is necessary to render them the subject of larceny than is required in the case of goods: and if the expression, "from the possession" means an actual possession, it can only apply to taking by robbery. Angel v. The Com. 2 Virg. Cases, 228.

CHAPTER XLIV.

CONCERNING THE DIVERSITIES OF GRAND LANCINIES AMONG THEM

SELVES IN RELATION TO CLERGY.[1]

ALTHо the punishment of all grand larciny by the law is death,(a) yet in relation to clergy, which is a kind of relaxation of the severity of the judgment of the law, there is difference made by acts of parliament between some larcinies and others.

By the antient privilege of the clergy, and by the confirmation and

(a) In antient times it was in some cases punished with the loss of a thumb, in others with pillory, and the loss of an ear. Corone 434. Britt. 24. b.

[1] This has now become a title of curiosity only, the Stat. 7 & 8 Geo. IV. c. 28, having enacted by Sect. 6, that benefit of clergy with respect to persons convicted of felony shall be abolished: and by Sect. 7, that no person convicted of felony shall suffer death, unless for some felony which was excluded from the benefit of clergy before or on the first day of the then session of Parliament, (Feb. 8, 1827,) or which should be made punishable with death by some statute passed after that day.

This benefit of clergy constituted in former times so remarkable a feature in criminal law, and a general acquaintance with its nature is still so important for the illus tration of the books, that it may be desirable to subjoin farther notice on the subject. It originally consisted in the privilege allowed to a clerk in orders, when prosecuted in the temporal court, of being discharged from thence and handed over to the court Christian, in order to make canonical purgation, that is, to clear himself on his own oath, and that of other persons as his compurgators, (vide Reeves's Hist. Eng. L. vol. 2, pp. 14, 134; 25 Edw. III. st. 3, 4,) a privilege founded, as it is said, upon the text of Scripture, "Touch not mine anointed, and do my prophets no harm." In England this was extended by degrees to all who could read, and so were capable of becoming clerks. (Reeves ubi supra et vol. 4, p. 156.) But by 4 Hen. VII. c. 13, it was provided, that laymen allowed their clergy should be burned in the hand, and should claim it only once; and as to the clergy, it became the practice in cases of heinous and notorious guilt, to hand them over to the ordinary, absque purgatione facienda, the effect of which was, that they were imprisoned for life. 4 Bl. Com. 369. Afterwards, by 18 Eliz. c. 7, the delivering over to the ordinary was abolished altogether, but imprisonment was authorized in addition to burning in the hand. By 5 Ann. c. 6, the benefit of clergy was allowed to those entitled to ask it, without reference to their ability to read. By 4 Geo. I. c. 11; 6 Geo. I. c. 23, and 19 Geo. III. c. 74, the punishment of transportation was authorized in certain cases, in lieu of burning in the hand; and by the act last mentioned the court might impose, instead of burning in the hand, a pecuniary fine, or (except in manslaughter) order the offender to be whipped. As to the nature of the offences to which the benefit of clergy applied, it had no application except in capital felonies, and from the more atrocious of these it had been taken away by various statutes prior to its late abolition by 7 & 8 Geo. IV. c. 28, s. 6. As the law stood at the time of that abolition, clerks in order were, by force of the benefit of clergy, discharged in clergyable felonies without any corporal punishment whatever, and as often as they offended, and the only penalty being a forfeiture of their goods; and the case was the same with peers and peeresses, (as to whom see 4 & 5 Vict. c. 22,) but they could claim it only for the first offence. As to commoners also, they could have benefit of clergy only for the first offence, and they were discharged by it from the capital punishment only, being subject on the other hand, not only to forfeiture of goods, but to burning in the hand, whipping, fine, imprisonment, or in certain cases transportation in lieu of the capital sentence. 4 Bl. Com. p. 371; 4 Steph. Com. 436.

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