a person, who was proved to be the prisoner, take hold of her ear, and pull her ear-ring as if endeavouring to pull it off. Her ear by this violence was torn entirely through; the ear-ring separated from the ear; and Mrs. Hobart conceived it had been taken away: but on her arrival at home, it was found amongst the curls of her hair. There was no proof that the ear-ring was ever seen in the prisoner's hand; but his hand was seen elevated to her ear, and at that instant Mrs. Hobart exclaimed, "I have lost my ear-ring." 1784. LAPIER'S CASE. MR. BARON PERRYN, to the Jury. Robbery is only an aggravated species of larceny; and to constitute a larceny, it is essential that there should not only be a taking, but a carrying away. The taking in the present case is very clearly proved; for the ear-ring was completely separated from the ear: but it seems questionable whether there has been a sufficient carrying away. A number of cases have been decided upon this subject; two of them have come before LORD MANSFIELD since I have been upon the bench. One of them was a case reserved by MR. JUSTICE NARES. A man got into Cherry's Case, a waggon where there was a bale of goods which lay in a ho- ante, in note rizontal posture. He raised it perpendicularly He raised it perpendicularly on its end, Case, Februand while he was taking the contents of it out, he was de- ary Session, tected by the waggoner. The JUDGES were of opinion, That page 236, as the property had not been removed from the place where Case 117. it at first laid, there was not a sufficient carrying away; for a carrying away in order to constitute felony, must be a removal of the goods from the place where they were, and the felon must for the instant at least have the entire and absolute possession of them (a). The other case was reserved by my (a) In the conference on this case, MR. BARON EYRE mentioned a case before him, where goods in a shop were tied to a string, which was fastened by one end to the bottom of the counter: a thief took up the goods and carried them away towards the door as far as the string would permit, and this he held not to be a severance, and consequently no felony, 2 East, P. C. 556.—And the principle of this opinion was recognized in Wilkinson's Case, 1 Hale, 508, where one had his keys tied to the strings of his purse in his pocket, which the prisoner attempted to take from him, and was detected with the purse in his hand, but the strings of the purse still hung to the owner's pocket by means of the keys, and this was ruled to Coslet's 1782, ante, 1784. LAPIER'S (1) See ante, page 236, Case 117. self (1). The Uxbridge waggon was passing along Oxfordstreet; and at a grocer's door, a parcel of sugar or other grocery was taken up and put into the waggon. The prisoner got into the waggon, and had removed this parcel from the head of the waggon, where it had been originally placed, to the tail of it; but he was apprehended before he had got it out of the waggon. The JUDGES held, that this was a sufficient taking and carrying away to constitute the offence. (2) 27 Ass. Pl. There is a very leading case upon this subject in print (2): A man lodged at an Inn, and in the morning before it was 1 Hale, 508, light took the sheets from off the bed in which he lay, with an intent to steal them, and carried them into the hall, where he left them, and went to the stable to get his horse, where the hostler seized him; and it was adjudged to be larceny (a). 39. Co. P. C. 108. 533. 3 Inst. 69. See Rex v. THE Jury found the prisoner Guilty; but the judgment was respited, and the case submitted to the consideration of the TWELVE Judges. THE JUDGES were all of opinion, that it was a sufficient taking from the person to constitute robbery; for it being in the possession of the prisoner for a moment, separate from the lady's person, was sufficient, although he could not retain it, but probably lost it again the same instant: and it was taken by violence (b). to be no asportation; for the purse could not be said to be carried away, as it still remained fastened to the place where it was before. (a) At the Lent Assizes for Cambridge, 16 Car. II. Clement Simpson was indicted on 89 Eliz. c. 15. for stealing in the dwelling-house. A Special Verdict was found, that he had taken plate out of a trunk, and laid it on the floor, but was apprehended before he had carried it away: and all the JUDGES were of opinion, That taking goods and removing them from one place to another in the same house, with an intent to steal them, is felony; for by the taking he hath the possession. Kelynge, s1. Bro. Cor. 107. 1 Hale, 358, 508. Foster, 109. (b) But in the case of Edward Farrell, who was indicted for robbery, Old Bailey July Session 1787, it was found that the prisoner stopped the prosecutor as he was carrying a feather-bed on his shoulders, and told him to lay it down or he would shoot him. The prosecutor laid the bed on the ground; but before the prisoner could take it up so as to remove it from the spot where it lay, he was apprehended. The JUDGES were of opinion, That the offence was not completed, and the prisoner was discharged. So where A. had his purse tied to his girdle, and B. attempting to rob him, in the struggle the girdle broke, and the purse fell to the ground. B. not having previously taken hold of it, nor picking it up afterwards, it was ruled to be no taking. 1 Hale, 538. THE KING against ELLOR. OLD BAILEY May Session 1784. This was an indictment on the statute 7 Geo. II. c. 22. for forging a certain or der for the payment of money. The order was in the following words: "MESSRS. SOnger, "PLEASE to send TEN POUNDS by the bearer, as I am so ill I cannot wait on you. "ELIZABETH WERY." THE COURT. The Act of Parliament means such an or der for payment of money, as, if genuine, the party giving it had a right to make; but this appears to be a mere letter, rather requesting the loan of money than ordering the payment of it. The terms of it do not import any thing compulsory on the part of the drawee to pay it; and in the case of Mary Mitchel, it was determined by NINE JUDGES against one (1), that the order was not within the meaning of the (1) Foster, Act, because the direction of it was not positive, and the 120. terms of it did not import that the party giving it had a right to the goods ordered (a). THE prisoner was acquitted of the felony, but detained; and, in July Session 1784, convicted of the misdemeanor. (a) See the Case of George Williams, ante, page 114, Case 69, and Clinch's Case, post, January Session 1791. But if it purport to be an order which the party has a right to make, although in truth he had no such right, and although no such person existed in fact as the order purports to be made by, it is within the statute. Locket's Case, ante, page 94, Case 53. 1781. CASE CLVII. In stealing from the In valid Office at Chelsea, the property must be laid in the house of THE KING. 501. THE KING against PEYTON. OLD BAILEY May Session 1784. This was an indictment on the statute 12 Ann. c. 7. for stealing a gold watch, value fifty pounds, in the DWELLING-HOUSE of William Henry Bunbury, Esq. THE house was the Invalid Office at Chelsea, which is an S. C. 2 East, office under Government. The ground-floor of it was used by the Paymaster-General for the purpose of conducting the business relating to the office. Mr. Bunbury occupied the whole of the upper part of it; but the rent and taxes of the whole house were paid by Government. Perryn, B. Willes, J. THE COURT held, That it was not the dwelling-house of Mr. Bunbury; and the prisoner was acquitted of the capital part of the offence (a). (a) In Aug. 14 Car. I. three persons were indicted for breaking the lodgings of Sir Henry Hungate at Whitehall; and the JUDGES were of opinion, that it should have been laid to be the King's mansion-house called WHITEHALL. 1 Hale, 522. 2 Hawk. P. C. 499. See also Cro. Car. 475. 1 Jones, 394. Cowper, 5.-At the Old Bailey in October Session, 14 Car. II. Henry Burgess was indicted for breaking into a chamber in Somerset-house, and the indictment charged it to be domus mansionalis of the person who lodged in it; but it was agreed that the whole house belonged to the Queen-Mother, and therefore that the indictment was bad. So, at the Old Bailey before Easter Term 1704, Ann Hawkins was indicted for breaking the mansion-house of Samuel Story in the nighttime. It appeared on evidence, that the house belonged to the African Company; that Story was an Officer of the Company; and that he and many other persons as Officers of the Company had separate apartments in the house, in which they inhabited and lodged; and that the apartment of Story was broke open. It was holden by HOLT, Chief Justice, MR. JUSTICE TRACY and MR. BARON BURY, that the apartment of Story could not be called his mansion-house, because he and the others inhabit in the house merely as Officers and Servants of the Company; and thereupon the Jury was discharged of this indictment, and it was amended and laid to be the mansion-house of the Company. Foster, C. L. 39. See also Pickett's Case, 2 East, 501. 1784. THE KING against WILLIAM Pedley. CASE CLVIII. committed on Commission IN the King's Bench, Trinity Term 1784, a writ of Habeas A Bankrupt Corpus, directed to the keeper of Bristol gaol, had been pro- mesne process, cured to bring up the body of William Pedley, the defendant. on an extent from the On reading the return, it appeared that he was detained in Crown, and custody on three commitments. First, On an EXTENT at the also under the suit of the Crown. Secondly, On MESNE PROCESS to the ers' warrant, amount of 10,000l. at the suits of several creditors. Thirdly, may be discharged quoad On a WARRANT by Commissioners of Bankrupts, for not the commitduly conforming to the satisfaction of the said Commission- ment by the ers, touching the discovery and disclosure of his estate and ers, if they effects. COWPER moved that he might be discharged quoad the commitment of the Commissioners. Commission have mistaken improbable answers for unsatisfactory ones; for if he is perjured, he may be in dicted, though he has LAWRENCE, for the Commissioners. By the statute 5 Geo. II. c. 30. s. 16. if a bankrupt shall refuse to answer, or shall not fully answer to the satisfaction of the Commissioners, all not sworn polawful questions put to him by the said Commissioners, it sitively, but only that he shall be lawful for the said Commissioners, by warrant under believes, Sc. their hands and seals, to commit him to such prison as they parte Nowshall think fit; there to remain without bail or mainprize, lan, contra, until he shall submit and full answer make to the satisfaction the end of the of the Commissioners. Ir appeared to the Commissioners at the last examination of the Bankrupt, that a short time before the commission issued, he had in his banker's hands the sum of 5000l. the whole of which he drew out, and left several of his acceptances which were then due unpaid. He was asked to give a reason for his drawing the money out of his banker's hands. He answered, "I drew it out in order to ascertain whether 66 my Banker would honour my drafts, when he had no mo"ney of mine in his hands." He was then asked, If he had afterwards drawn any drafts upon his Banker for this purpose? He answered, "No." He was asked, Why he did not try this experiment on his Banker, by drawing a draft at once -Sed vide ex and note (a) at case, page 327. |