would not oust clergy upon the statute of 5 E. 6. or 39 Eliz. and so by Lee secondary was the constant course at Newgate in his time.

As to robbery in booths or tents in fairs and markets, within the 5 E. 6. cap. 12. H. 41 Eliz. B. R. the robbing of a shop in Westminster-hall was ruled not to be within this statute to be ousted of clergy.

If a servant opens a chamber-door in his master's house, and steals goods, Sir N. Hyde, who was severe enough in cases criminal, doubted whether this were within this statute to oust him of his clergy: vide infra.

IV. The next statute relating to this matter of robbing in houses is 39 Eliz. cap. 15. which recites, that the penalty of robbing of houses in the day-time, no persons being in the house at the time of the robbery committed, is not so penal as robbery in any house, any person being therein at the time of the robbery committed, which hath emboldened persons to commit heinous robberies in breaking and entering persons houses, none being in the same, and enacts,

"That if any person shall be found guilty by verdict, con525] fession, or otherwise for the felonious taking away in the

day-time of money, goods, or chattels to the value of five shillings or upwards, in any dwelling-house, or any part thereof, or any out-house or out-houses belonging and used with the said dwelling-house or houses, altho no person shall be in the said house or houses at the time of the felony committed, every such person shall be excluded from the benefit of clergy.

Upon this statute these things are observable:

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

2. And therefore, if either the indictment pursue not the statute, or the evidence make not good the indictment, he is to have his clergy, and therefore upon such an indictment he may be acquitted of stealing against the form of the statute, and found guilty of simple felony at common law, tho the indictment conclude contra formam statuti; and the same law it is, if an indictment be formed upon the statute of 23 H. 8. or 5 & 6 E. 6. for tho the indictments in those cases be special, and conclude sometimes contra formam statuti, yet they include felony at common law, and tho the indictment concluding contra formam statuti be good, it is not necessary, so as the circumstances required by the statute be pursued, for the statutes in these cases make not the felouy, but only exclude clergy, when the felony is so circumstantiated, as the statute mentions, and is so expressed in the indictment.

3. If the indictment be formed upon this statute, as that he broke and entred the house in the day-time, and stole, no person being in the house, if it appear upon the evidence, that the felony was committed without these circumstances, as if it were committed in the

night, or not in the day, so that it is burglary, or if committed when some of the family were in the house, in which case he had been ousted of his clergy by the statute of 5 & 6 E. 6. if the indictment had been formed upon that statute, yet in such case the offender being specially indicted upon the statute of 39 Eliz. shall be found guilty of simple felony at common law, and shall not [526] be ousted of his clergy by the statute 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 pursued in the evidence, he must have his clergy, and so is the constant practice.

4. Altho this statute 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 statute of 5 E. 6. there must be these three things concur to oust clergy: 1. There must be an actual stealing or taking away of goods of some value upon the statute of 5 & 6 E. 6. and of goods to the value of five shillings upon this statute, but it is not necessary, 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 statutes, and at common law also, as was resolved by all the judges, uno dissentiente, in a case out of Cambridgeshire upon a special verdict there found upon an indictment upon the statute of 5 & 6 E. 6. anno 1664.(i) 2. It must be a stealing of goods in the house, and therefore he that steals, or is party to the stealing them, being out of the house, is not by this statute to be ousted of his clergy. 3. Upon this statute, 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 said such a force, as must bring the party within this statute, hath been touched before, to which I add, 1. That whatsoever breaking will make a burglary, if it were in the night, will make such a force or breaking, as is within this statute and that of 5 E. 6. to oust the thief of his clergy, as if he [527] break open the outward or inward door of the house, pick the lock of such door, draw the latch, break open the window, &c. 2. Some breaking or force will oust clergy upon the statutes 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

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

(k) But now by 10 & 11 W. 3. cap. 23. "Whoever by night or day shall in any shop, ware-house, coach-house, or stable, privately and feloniously steal to the value of 5s. or more, tho such shop be not broke open, nor any person therein, or shall assist, hire or command any person to commit such offense, shall be excluded from the benefit of clergy." Now repealed and supplied.

And by 12 Ann. cap. 7. "Whoever shall feloniously steal to the value of 40s. in any dwelling-house or out-house thereto belonging, altho it be not broken, nor any person therein, their aiders or assisters are excluded from clergy." Repealed and supplied.

counter or cupboard fixed to the freehold, as was agreed in the Cambridgeshire case before-mentiond.

T. 16 Car. 2. Simson's case, where the case was thus: a man came into a dwelling-house, none being within, and the doors being open, and broke up a chest, and took out goods to the value of five shillings, laid them on the floor, and before he could carry them out of the chamber, he was apprehended, and upon this matter specially found he was ousted of his clergy upon the statute of 39 Eliz. for the taking them out of the chest was felony by the common law, and the statute of 39 Eliz. did not alter the felony, but only excluded clergy; per omnes justiciarios Angliæ. Ex libro Bridgman.

But whereas in that case the breaking open of the chest was held such a force or breaking, as excludes clergy upon that statute, I have observed, that the constant practice at Newgate hath not allowed that construction, unless it was a counter or cupboard fixed; yet note, this resolution of 16 Car. was by all the judges of England then present, and tho one dissented, he after came about to the opinion of the rest. Ideo quære.

T. 13 Car. i B. R. Evans and Finch(1) were arraigned at Newgate upon an indictment, that they at twelve of the clock in the day, domum mansionalem Hugonis Audely de interiori templo, nullâ persona in eadem domo existente, fregerunt, & 401. from thence did steal, a special 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 same forty pounds, and Finch stood upon the ladder in view of Evans, and saw Evans in the chamber, and was assisting to the robbery, and took part of the money, and that at the time of the rob

bery divers persons were in the Inner Temple-hall, and in [528] divers other parts of the house; ruled, 1. That a chamber

in an inn of court is domus mansionalis within the statute 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 persons. were in the hall and other parts of the Inner Temple, yet no person being in the chamber, this offence was within the statute of 39 Eliz. and so it differs from the case of Whitehall before-mentioned, where the indictment was upon the statute of 5 & 6 E. 6. 3. That in as much as Evans was only in the chamber, and Finch entered not the chamber, Evans had judgment of death, and Finch had his clergy.

And the like law had been upon the statute of 5 & 6 E. 6. as is before declared, for these statutes only exclude the parties, that actually take out of the dwelling-house, not those that are present and assenters,(m) as hath been also before declared (n) upon the statute of 1 Jac. of stabbing.

(1) Cro. Car. 473.

(m) But by 3 & 4 W. & M. cap. 9. clergy is taken away from all, who comfort, aid, abet, assist, counsel, hire, or command any person feloniously to break any dwelling-house; shop, or ware-house thereto belonging, and feloniously to take away any money, goods, &c., to the value of 58. or upwards, altho no person be within the same.

(n) Vide antea, p. 468.

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

But this statute of 39 Eliz. takes not away the benefit of clergy, where the offender stands mute, but only in the case of conviction by verdict, confession, or otherwise according to the laws of the realm; quære 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.(o) And thus far for those larcinies, that relate to the dwelling-house of any wherein clergy is excluded.

V. The next statute, that excludes from clergy, is the statute of 1 E. 6. cap. 12. and 2 & 3 E. 6. cap. 33. which exclude clergy from any person convict by verdict or confession of stealing any horse, mare, or gelding, or wilfully standing mute.

But it takes not away clergy from accessaries before or [529] after.

VI. The statute 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 ousted of his clergy, if convict by verdict or confession, or if he challenge above twenty peremptorily, or stands mute, or will not directly answer, or be outlawed.

Upon this statute these things are observable: 1. It doth not alter the nature of the felony, and therefore, if what he take away so be not above the value of twelve-pence, it is only petit larciny, as it was before, and so differs from the case of robbery, Co. P. C. cap. 16. p. 68. Crompt. de Pace, fol. 33. b. 2. The indictment must be pursuant to the statute, viz. quod felonicè &c. clam & secretè a persona, &c. cepit, otherwise the offender hath his clergy. 3. It doth not oust accessaries of their clergy, nor it seems doth it oust any of his clergy but him, that actually picks the pocket, and not those that are present, aiding and assisting, upon the reason of Evan's case before, for it shall be taken literally.

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

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

CHAPTER XLV.

CONCERNING PETIT LARCINY.

[530]

PETIT larciny is the felonious stealing of money or goods not above the value of twelve-pence without robbery, for altho that by some. opinions the value of twelve-pence make grand larciny, 22 Assiz. 39.

(0) But now by 3 & 4 W. & M. cap. 9. clergy is expressly taken away in case of outlawry, or of standing mute, &c.

(p) This was left unfinished by our author, but I suppose the statute here meant is 22 Car. 2. cap. 5. which “All who shall feloniously steal woollen manufactures from the tenters, or shall embezzle the king's naval stores, are excluded from clergy.

As to subsequent statutes, which take away clergy from larciny in dwelling-houses, vide postea sub fine cap. 48.

VOL. 1.-47

per Thorp, yet the law is settled, that it must exceed twelve-pence to make grand larciny. West 1. cap. 15.(a) 8 E. 2. Coron, 404.[1]

The judgment in case of petit larciny is not loss of life, but only to be whipt, or some such corporal punishment less than death, and yet it is felony, and upon conviction thereof the offender loseth 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 case of grand larciny. 8 E. 2. Coron. 406. Stamf. P. C. p. 184. a.

But in case of petit larciny there can be no accessaries neither before 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 several, yet it is grand larciny in both. 8 E. 2. Coron. 404.

But if upon the evidence it appears, that A. stole twelve-pence at one time, and B. twelve-pence at another time, so that the acts themselves were several at several times, tho they were the goods of the same person, 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 so petit larciny. 41 E. 3. Coron. 451. 18 Assiz. 14. Stamf. P. C. p. 24. b.

If A. steal goods of B. to the value of six-pence, and at [531] another time to the value of eight-pence, so 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,[2] Stamf. P. C. p. 24. collected from the book of 8 E. 2. Coron. 415. Dalt. cap. 101. p. 259. (b) 259.(b)

But if the goods be stolen at several times from several persons, and each a-part under value, as from A. four-pence, from B. sixpence, from C. ten-pence, these are several petit larcinies, and tho contained in the same indictment make not graud larciny.

But it seems to me, that if at the same time he steals goods of A. of the value of six-pence, goods of B. of the value of six-pence, and goods of C. to the value of six-pence, being perchance in one bundle, or upon a table, or in one shop, this is graud larciny, because it was one entire felony done at the same time, tho the persons had several properties, and therefore, if in one indictment, they make grand larciny.[3]

(a) 2 Co. Instit. 190.

(b) New Edit. cap. 154. p. 494.

[1] This distinction between grand and petit larceny is now abolished by 7 & 8 Geo. IV. c. 29, s. 2. See Ryland's note to 4 Bl. Com. 229. 19th Lond. Ed. 1836.

[2] Birdseye's case, 4 Carr. & Pay. 386. Jones's case, Id. 217. 2 East's P. C. 740. [3] It is manifest that the defendant might have three different defences as to the taking of the property of three owners. Would not a single count, which compelled a defendant to make three distinct defences, as to three distinct pieces of property of three different owners, be bad for duplicity. See Com. v. Andrews, 2 Mass. R. 409.