530. law requires to constitute grand larceny, but that the stealing See also 1 Hale, must be to that amount at one and the same particular time; for things stolen at different times are, in fact, different acts of stealing; and no number of petit larcenies will amount to a grand larceny, nor any number of grand larcenies, where it depends on the value of the property stolen, to a capital offence. As to THE SEVEnth point, viz. Where the offence of larceny may be tried. S Inst. 113. Sect. 52. It is certain, that he who steals my goods in the 13 Edw. 4. 3. S. P. C. 61. 182. county of B. and carries them to the county of C. may be B. App. 84. indicted or appealed in the county of C. as well as that of B.; B. Cor. 71. because the possession still continuing in me, every moment's 1 Hale, 507. continuance of the trespass is as much a wrong, and may come under the word cepit as much as the first taking; yet a pirate carrying the goods whereof he robbed me at sea into any county, cannot be indicted for felony there, because the original taking was not such a felony whereof the common law takes cogni zance. 66 money, &c. in + Sect. 53. By 13 Geo. 3. c.31. s. 4. it is recited, "that whereas "it frequently happens in both parts of the united kingdom, that " persons having stolen, or otherwise feloniously taken away money, cattle, goods, or other effects, carry the same into "the other part of the united kingdom, and there have the said money, cattle, goods, or other effects, in their possession or "custody; and doubts have been entertained, whether they could "be indicted and tried in that part of the united kingdom, as the Persons who "original offence was not there committed;" and enacted, "That shall have stolen "if any person or persons having stolen, or otherwise feloniously either part of "taken money, cattle, goods, or other effects, in either part of the united king"the united kingdom, shall afterwards have the same money, dicted for theft. dom, may be in"cattle, goods, or other effects, or any part thereof, in his, her, "or their possession or custody, in the other part of the united "kingdom, it shall and may be lawful to indict, try, and punish "such person or persons for theft or larceny in that part of the "united kingdom where he, she, or they shall so have such "money, cattle, goods, or other effects, in his, her, or their pos"session or custody, as if the said money, cattle, goods, or other "effects, had been stolen in that part of the united kingdom.” Sect. 54. By 13 Geo. 3. c. 31. s. 5. it is further enacted, Receivers of "That if any person or persons, in either part of the united money, &c. in either part of kingdom, shall hereafter receive or have any money, cattle, the united "goods, or other effects, stolen, or otherwise feloniously taken, kingdom, "in the other part of the united kingdom, knowing the same to knowing the "be stolen, or otherwise feloniously taken, every such person or stolen, also lipersons shall be liable to be indicted, tried, and punished for able to be pun"such offence in that part of the united kingdom where he, she, ished. or they shall so receive or have the said money, cattle, goods, or other effects, in the same manner, to all intents and purposes, as if the said money, cattle, goods, or other effects, had "been originally stolen, or otherwise feloniously taken, in that "part of the united kingdom." same to be 1 Hale, 503, Foster, 73. Bro. Cor. 84. S. P. C. 24. Petit Larceny. Sect. 1. And now we are come to PETIT LARCENY, which seems to agree with grand larceny in all the particulars abovementioned, except only the value of the goods; so that wherever an offence would amount to grand larceny, if the thing stolen were above the value of twelve-pence, it is petit larceny if it be but of that value, or under. Sect. 2. And if one be indicted for stealing goods to the value of ten shillings, and the jury find specially that he is guilty, but that the goods are worth but ten-pence, he shall not have judgment of death, but only as for petit larceny. Cromp. 36. Heley, 66. Case of Abraham Evans, Foster, 73. Bro. Cor. 2. 219. 1 Hale, 530. 3 Inst. 228. S. P. C. 24. + Sect. 3. And there are no accessaries in petit larceny; and therefore, if two be indicted, one for privately stealing from the person a handkerchief to the value of twelve-pence, and the other for receiving it, and the principal be found guilty to the value of ten-pence only, the accessary ought to be discharged. So if the principal be charged with grand larceny, and the jury find the value to be only ten-pence, the accessary ought to be discharged. Sect. 4. It seems that all petit larceny is felony, and consequently requires the word felonicè in an indictment for it. Yet it is certain, that it is not punished with the loss of life or lands, but only with the forfeiture of goods and chattels, and whipping, or other corporal punishment. + Sect. 5. But it is enacted by 4 Geo. 1. c. 11. and 6 Geo. 1. c. 23. “That where any person or persons shall be convicted of "grand or petit larceny, &c. who by the law shall be intitled "to the benefit of clergy, and liable only to the penalties of "burning in the hand or whipping, it shall and may be lawful for "the court before whom they are convicted, or any court held at "the same, or any other place, with the like authority, if they "think fit, to order such offenders to be transported for the space of seven years." + Sect. 6. And at the common law, a conviction of petit larceny prevented the party from giving evidence as a witness in any court of justice; but by the 31 Geo. 3. c. 35. it is enacted, "That 66 no person shall be an incompetent witness by reason of a con"viction for petit larceny." Under what circumstances larceny is excluded the benefit of clergy will be noted hereafter, and more particularly in the chapter concerning Clergy. We have seen that every larceny must include a trespass (p. 142.) and therefore at common law, where a person or persons was in legal possession of a chattel, and fraudulently converted it to his own use, it did not amount to a larceny, but was a mere embezzlement and breach of trust. Thus lodgers, servants, and clerks, who held legal possession of certain articles, on account of others, were not guilty of larceny by fraudulently embezzling them. To remedy these defects a variety of statutes have been passed, many of them since Hawkins wrote, not only making persons liable who were were not so at common law, but also extending a new sanction to many things which were not the objects of larceny at common law. It has not been judged expedient to break into the original text of the author, but to insert them as follows: 1. By whom larceny may be committed, not being responsible at common law;-viz. Lodgers, servants, clerks, agents. 2. Of what things, not being subjects of larceny at common law;-viz. As being part of the freehold. As being of no intrinsic value. Of things in which none had a determinate property, and herein of animals fera natura.-Lastly, of certain chattels placed under peculiar sanction of the legislature, either in respect of themselves, or of the place from whence they are stolen. Larceny from Lodgings by the Lodgers. + Sect. 1. By 3 Will. and Mary, c. 9. s. 5. IT IS RECITED to be a frequent practice for idle and disorderly persons to hire lodgings with intent to have an opportunity to take away, embezzle, or purloin the goods and furniture being in such lodgings; AND ENACTED, "that if any person or persons shall take away, "with intent to steal, embezzle, or purloin, any chattel, bedding, "or furniture, which, by contract or agreement, he or they are "to use, or shall be let to him or them to use in or with "such lodging, such taking, embezzling, or purloining shall be, "to all intents and purposes, taken, reputed, and adjudged to "be larceny and felony, and the offender shall suffer as in case "of felony." + Sect. 2. It was long doubted whether, as a lodger had a spe- (a) Kely. 24.81. cial property in the goods which were let with the lodgings, the Ante, page 146. (b) Rex v. stealing of them was felony (a); but it was at length decided, that Mears, 1 Show. this was not a common law offence (b), and in consequence of 50. (c)1 Show. this decision, the above statute was made (c); it has therefore 55. (d) Jossling's case, O.B. been determined, that if the indictment omit to conclude contra July Sess. 1784. formam statuti (d), or if it so conclude, but appear to be a lar- () Ann Falkceny not within the statute (e), it cannot be made good as an in- land's case, O. B. Sept. Sess. dictment at common law. 1788. + Sect. 3. It hath been ruled, that a ready-furnished house, Brown's case, the whole of which is let, and no part of it reserved to the lessor, O. B. Sept. is the mansion-house, and not the lodging of the lessee, within Sess. 1789. the meaning of this statute. Sess. 1784, co Sect. 4. It hath also been determined, that if lodgings be let Sarah Pike's to a married woman during co-habitation with her husband, and case, O. B. Feb. the husband afterwards assents to the contract, the indictment ram GOULD, must state that the lodgings were let to the husband, for if it state Justice. that they were let to the wife, it is erroneous. Sect. Eliz. May's case, O. B. Sept. Sess. 1784, coram HOTHAM, Baron. Case of Ambrose Mann, O. B. July Sess. 1786, coram АSH + Sect. 5. So also it seems that a wife cannot be indicted for stealing goods from a lodging stated to have been let by contract to her husband, if it appear in evidence, that the husband cohabited with her at the time the felony was committed, for she is in such case under his coercion, and it shall be presumed to have been done by his command or consent. + Sect. 6. But if the indictment state the lodgings as let to the husband, and it appear upon the evidence, that the lodgings were in fact let to the wife; that the husband seldom came, and never slept there; that the wife lived entirely upon her own laHURST, Justice. bour; that the goods were pawned by her servant; and that at the time they were pawned, the husband was at a distance in the country; the wife may be found guilty: for here it cannot be presumed that she acted under his coercion. Sarah Bill's case, O. B. May Sess. 1751. Butler's case, + Sect. 7. It has also been decided, that if the lodgings are let to two persons, as to a mother and to her widowed daughter, the indictment must state the joint contract. + Sect. 8. It has also been ruled, that if it appear upon the O. B. Feb. Sess. evidence, that the felony was committed after the term for which the contract was made, had expired, the prisoner must be acquitted. 1784. Ann Pope's Sect. 9. It is also said, that it is indispensably necessary in case, July Sess. an indictment on this statute, to state the name of the landlord, or person by whom the lodgings were let. 1784. The case of O. B. May Sess. 1785, coram ADAIR, Recorder. (a) The same (9)† Sect. 10. It has also been said, that the mere act of William Patum, pawning the furniture let with a lodging is hardly sufficient evidence against the lodger of his intention to convert them feloniously to his own use, if it appear that he had been in the habit of so doing, for the purpose of supplying a temporary necessity, and of restoring the goods to the lodgings at a subsequent time; is for that the statute 30 Geo. 2. c. 24. s. 3. (a) enacts, "That if any person shall pawn the goods of another without his consent, he shall, on conviction, on the oath of one witness before "one magistrate, forfeit twenty shillings, and the full value of "the goods, and if not paid, be committed to the house of cor"rection, as the act directs;" and it has been repeatedly held, that a statute inflicting a lesser penalty is to be taken, in that particular instance, as a virtual repeal of a statute inflicting a greater penalty on the same offence (b). c. 57. s. 5. (b) Rex v. Davis, Cases C. L. 228. Case of John Smith Burnel, Dec. Sess. 1793, on a case reserved for the opinion of the twelve judges. Sect. 11. It seems also, that the goods charged to have been purloined must be furniture of such a description as is proper to be let and used with the kind of lodgings. Sect. 12. It has also been decided, that an indictment on this statute, stating, that C. D. the defendant, at such a time and place, &c." the goods and chattels of A. B. (the same goods and chattels being in a certain lodging-room in the dwelling-house "of the said A. B. there situate, let by contract by the said A. B. (9) The act of pawning, it is apprehended, is merely evidence of the intent, and may or may not be conclusive, according as it is accompanied or "to unaccompanied by other circumstances explanatory of the act and of the intention of the party. "to the said C. D. and to be used by the said C. D. with the lodging aforesaid), then and there being found, feloniously did "steal, &c." is good, as being the common form constantly used, although for want of the word "then" between "situate" and "let," it does not appear but that the contract was at an end at the time the felony was committed. Larceny by Servants, &c. Breach of trust by menial servants may be committed, 1. By their going away with such property as may be actually trusted to their care and keeping during the lives of their mas ters. 2. By despoiling such property as is constructively under their care on the death of their masters. As to THE FIRST POINT, viz. Larceny by menial servants during the lives of their masters. + Sect. 1. By 21 Hen. 8. c. 7. s. 1. IT IS RECITED, "That 3 Inst. 104. divers, as well noblemen as other the king's subjects, have, upon confidence and trusts, delivered unto their servants their caskets, and other jewels, money, goods, and chattels, safely to be kept to the use of their said masters or mistresses, and after such delivery the said servants have withdrawn themselves, and gone away from their said masters or mistresses, with the said caskets, jewels, money, goods, and chattels, or part thereof, to the intent to steal the same, and defraud their said masters or mistresses thereof, and sometime being with their said masters or mistresses, have converted the said jewels, money, and other chattels, or part thereof, to their own use, which misbehaviour so done was doubtful in the common law whether it were felony or not; and by reason thereof, the aforesaid servants have been in great boldness to commit such or like offences:" and IT IS ENACTED, "That all and singular such servants, to whom any such caskets, "jewels, money, goods, or chattels, by his or their said masters " or mistresses, shall from henceforth be so delivered to keep, that "if any such servant or servants withdraw him or them from "their said masters and mistresses, and go away with the said caskets, jewels, money, goods, or other chattels, or any part "thereof, to the intent to steal the same, and defraud his or "their said masters or mistresses thereof, contrary to the trust "and confidence to him or them put by his or their said masters 66 or mistresses, or else being in the service of his said master or "mistress, without assent or commandment of his masters or "mistresses, he embezzle the same caskets, jewels, money, 66 66 goods, or chattels, or any part thereof, or otherwise convert "the same to his own use, with like purpose to steal it; that if "the said caskets, jewels, money, goods, or chattels, that any "such servant shall so go away with, or which he shall embez"zle with purpose to steal it, as is aforesaid, be of the value of "forty shillings, or above, that then the same false, fraudulent, " and untrue act or demeanour from henceforth shall be deemed Dyer, 5. " and adjudged felony; and he or they so offending, to be pu"nished, |