IV. Closely allied to the crime of burglary, as defined by the common or IV. Housebreak the statute law is that of entering a dwelling-house in the night, with intent to commit any felony thereon, which is constituted a ing, &c. felony (t). 1. The breaking and entering any dwelling-house, schoolhouse, shop, warehouse, or counting-house, and committing a felony therein, or committing a felony therein and breaking out of the same (u). 2. The breaking and entering any building, and committing a felony therein, such building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof (x), or being in any such building committing a felony therein, and breaking out of the same (y). 3. The breaking and entering any dwelling-house, church, or place of divine worship, or any building within the curtilage, schoolhouse, shop, warehouse, or counting-house, with intent to commit a felony therein (z). [*278] *And it is further provided, that any one found by night armed with any dangerous or offensive weapon or instrument, with intent to break or enter into a dwelling-house or other building and to commit a felony therein or found by night having in his possession without lawful excuse (the proof of which excuse shall lie on him) any picklock key or other implement of housebreaking-or found by night having his face blackened or otherwise disguised with intent to commit a felony-or found by night in any dwellinghouse or other building with intent to commit a felony therein-shall be guilty of a misdemeanor (a). Punishment: (t) 24 & 25 Vict. c. 96, s. 54. penal servitude for any term not more than seven nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement. (u) Sect. 56. Punishment: penal servitude for not more than fourteen nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement. (x) Ante, p. 274. (y) Sect. 55. Punishment: ut supra. (2) Sect. 57. Punishment: penal servitude for not more than seven nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement. (a) 24 & 25 Vict. c. 96, s. 58. Punishment: penal servitude for five years, or imprison. ment for not more than two years, with or without hard labour. object is the commission of a misdemeanor merely, as the cutting off of a person's ear (Com. v. Newell, 7 Mass. 247), there is no burglary. Id. And see State v. Cooper, 16 Vt. 551; Com. v. Taylor, 5 Binney (Penn.), 281. Whether the felonious intent be executed or not, is, however, immaterial. Olive v. State, 5 Bush (Ky.), 376; State v. McDaniel, Winston (N. C.), 249. The breaking and entering must be both in the night time, which is held to extend from the termination of daylight, beginning at the time when the countenance ceases to be reasonably discerned and extending to the earliest dawn of the next morning. See State v. Bancroft, 10 N. H. 105; People v. Griffin, 19 Cal. 578; 2 Whart. Cr. Law, § 1594. Light reflected from the moon is not to be taken into the account. 5 How. (Miss.) 20. The rule as to time has been modified by statute in some of the States, as well as in England; and when a statute exists, it is sufficient to aver the offense to be committed in the night time generally. See People v. Burgess, 35 Cal. 115; State v. Robinson, 35 N. J. L. 71; Com. v. Williams, 2 Cush. (Mass.) 582. The question of time is one for the jury. State v. Leaden, 35 Conn. 515. See State v. Bancroft, 10 N. H: 105; State v. White, 4 Jones (N. C.), 349. An attempt to commit a burglary is an offense at common law. Hackett v. Com., 3 Harris (Penn.), 95. In the construction of the various statutory provisions in the several States, against breaking into shops and other buildings, the analogies of the common law of burglary are followed. See Wilson v. State, 24 Conn. 57; State v. Newbegin, 25 Me. 500; Ducher v. State, 18 Ohio, 308; Com. v. Lindsey, 10 Mass. 153. Larceny (or theft), by contraction for latrociny, latrocinium, may be distinguished into three sorts: simple larceny (b), or plain theft unaccompanied with Larceny. any other atrocious circumstance; aggravated larceny; and mixed or compound larceny; upon each of which offences I shall remark in the order specified. larceny. V. Simple larceny is the felonious taking, and carrying away, of the personal goods of another with intent to deprive the owner permanently of his property V. Simple therein. This offence certainly commenced then, 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 [* 279] 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, any violation of that property is subject to be punished by the laws of society. At present we will examine the nature of theft, or simple larceny, as laid down in the foregoing definition. To constitute larceny there must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of goods by their owner to the offender, upon trust, can ground a larceny at common law. If A lends B a horse, and B rides away with it; or, if I send goods by a carrier, and he carries them away; these are no larcenies at common law (c). But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcenies (d): for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery will not, of course, be intended to arise from a felonious design: since that may happen from a variety of other accidents. Neither by the common law was it larceny in a servant to run away with the goods committed to him to keep, but only a breach of civil trust. Though if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the fraudulent conversion of them. would be felony at common law (e). So if a guest robs his inn or tavern of a piece of plate, it is larceny; but he has not the possession delivered to him, but merely the use (f). * [* 280 ] The rule of our customary law, that a taking or trespass was needed as an ingredient in larceny, led to many nice distinctions (g), ex. gr., where a constructive possession of the thing charged to have been stolen remained in the And whosoever is convicted of any such misdemeanor as above-mentioned, committed after a previous conviction, either for felony or such misdemeanor, will on such subsequent conviction be liable to penal servitude for not more than ten nor less than five years,or imprisonment for not more than two years, with or without hard labour. S. 59. (b) Simple larceny was formerly subdivided into grand and petit larceny, the stealing of goods above the value of twelve-pence, was called grand larceny; of goods to that value, VOL. IJ-65 or under it, was petit larceny. Now, how. ever, the distinction between grand and petit larceny is abolished, for " every larceny whatever be the value of the property stolen, shall be deemed to be of the same nature." 24 & 25 Vict. c. 96, s. 2. (c) 1 Hale, P. C. 504. (e) 1 Hale, P. C. 506. (g) See Reg. v. Thristle, 1 Den. 502; Reg. v. Cohen, 2 Den. 245 owner, its actual possession having been parted with, or where possession of a chattel had been originally obtained by the accused under colour of a contract, but nevertheless animo furandi and in pursuance of a fraud. Hence it was deemed expedient by the legislature to insert in the statute known as "The Fraudulent Trustees Act" (20 & 21 Vict. c. 54), a clause (h) designed to meet and remove the difficulties specified; and this clause has been reproduced with some amendments in the 24 & 25 Vict. c. 96, the 3rd section of which enacts, that " 'whosoever, being a bailee of any chattel, money, or valuable security (i) shall fraudulently take or convert the same to his own use or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be convicted thereof upon an indictment for larceny;" but this provision does not extend to any offence punishable on summary conviction. There must be not only a taking, but a carrying away to constitute larceny; cepit et asportavit was the old law-latin charging the act in an indictment for this offence. A bare removal, however, of the goods from the * place [* 281] in which he found them, though the thief does not quite make off with them, is a sufficient asportation, or carrying away. As if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down stairs: these have been adjudged sufficient carryings away, to constitute larceny (j). Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprised before he can make his escape with it; this is larceny (k). The taking, and carrying away, must also be felonious; that is, done animo furandi in order that it may be larceny (7). This requisite, besides excusing those who labour under incapacities of mind or will (of whom we spoke sufficiently at the entrance of this book (m) ), indemnifies also mere trespassers, and other such petty offenders if arraigned upon a charge of theft. As if a servant takes his master's horse without his knowledge, and brings him home again: if a neighbour takes another's plough that is left in the field, and uses it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I distrain another's cattle, or seize them: all these are trespasses, but no felonies (n). And should a servant, contrary to the orders of his master, take from his possession any corn or other food for the purpose of giving the same to his master's horses, this would be no felony, but might [* 282] subject the offender on summary conviction to imprisonment, or the payment of a penalty (0). The ordinary discovery of a felonious intent is where the party does the act, (h) Sect. 4. (i) By s. 1, the term "valuable security" includes any order, or security, entitling or evidencing the title of any person or body corporate to a share or interest in any public stock or fund, whether of the United Kingdom, or of a foreign state, or in any fund of any body corporate, company, or society, or to any deposit in any bank, and also includes any deed, bill, note, warrant, order, or other security for money or for payment of money, and any document of title to lands or goods as defined at pp. 286 (ƒ), 304 (a). (j) 3 Inst. 108, 109. charged to be a felony, clandestinely; or, being charged with the fact, denies it. But this is by no means the only criterion of criminality: for in cases that may amount to larceny the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or animum furandi: wherefore they must be left to the due and attentive consideration of the court and jury. A trespass in regard to a chattel coupled with a felonious conversion of the chattel whilst such trespass is continuing, may suffice to constitute larceny (p). Again, if a chattel is found-not being in the actual possession or custody of any one, and without any ostensible or visible owner-the taking and appropriating of this chattel by the finder may or may not be felonious. It will be so if at the moment of taking the finder of the chattel, reasonably believing that its owner can be discovered, is minded nevertheless to convert such chattel wholly to his own use; it will not be larceny if the finder of the chattel appropriates it having reason to think that it has been really lost (i. e., lost under such circumstances that its owner cannot be found): or if the finder has reason to think that the chattel has been abandoned: or if the finder, having innocently taken it, subsequently forms the felonious intention or design of retaining it and converting it to his own use (q). The first question for a jury in any such case may therefore be-did the accused take the property under such circumstances that he would be liable to an action of trespass de [* 283] bonis asportatis for doing so, assuming that he had no animus furandi? If trespass would lie, the next question for the jury would be-had the accused any animus furandi? If so, he would be guilty of larceny. Obviously it is the duty of counsel for the prisoner on a trial for larceny, where the fact of taking or getting into possession the chattel specified in the indictment is distinctly proved-to contend by any hypothesis which can be based upon the facts in proof, that the taking was not felonious-that it occurred through mistake or carelessness, or in assertion of a right, or with intent to restore the thing taken after it had served some temporary purpose to its lawful owner. * In order to satisfy the definition of larceny at common law, the felonious taking and carrying away above mentioned must be of the personal goods of another: for of things real, or savouring of the realty, larceny at common law cannot be committed. Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed by the rules of the common law; but the severance of any such thing was merely a trespass; for by a subtlety in the legal notions of our ancestors, it was regarded as parcel of the real estate; and therefore, whilst it continued so, could not by any possibility be the subject of theft, being absolutely fixed and immoveable. And if things such as mentioned were severed by violence from the freehold, so as to be changed into moveables; and at the same time, by one and the same continued act, were carried off by the person who severed them: they could not, it was thought, be said to have been taken from the proprietor, in this their newly (p) Reg. v. Riley, Dearsl. 149. (q) Reg. v. Thurborn, 1 Den. 387; Reg. v. Preston, 2 1d. 353; Merry v. Green, 7 M. & W. 623; Reg. v. Dixon, Dearsl. 580; Reg. v. acquired state of mobility (which was deemed essential to the nature of larceny), being never, as such, in the actual or constructive possession of any one, but of him who committed * the trespass. The trespasser could [*284] not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs chattels at one time from the freehold, whereby the trespass is completed, and they are converted into personal chattels, in the constructive possession of him on whose soil they are left or laid; and the thief comes at another time, when they are so turned into personalty, and takes them away; this is larceny at common law, and so it is if the owner, or any one else, has severed them (r). (714) (r) 3 Inst. 109; 1 Hale, P. C. 510. (714) The common-law distinction between grand and petit larceny has ceased to exist in most of the United States, as well as in England. For definitions of larceny, see Witt v. The State, 9 Mo. 671; Phelps v. People, 55 Ill. 334; State v. Ledford, 67 N. C. 60. Subjects of larceny. Larceny at common law can be only of goods personal. State v. Burrows, 11. Ired. (N. C.) 477, 483. The stealing of real estate is not larceny. Id. People v. Williams, 35 Cal. 671. This rule is, however, applicable only to things issuing out of or growing upon the lands, and such as adhere to the freehold; and not to personal chattels which are constructively annexed thereto. Jackson v. The State, 11 Ohio St. 104. Thus, a belt connecting wheels in a mill, and which may be readily removed without injury, is a subject of larceny. Id. And when the thing is detached from the soil or freehold, it becomes the subject of larceny. See Wilkie v. State, 34 Texas, 155; People v. Williams, 35 Cal. 671; State v. Moore, 11 Ired. (N. C.) 70; Ward v. People, 3 Hill, 395; S. C., 6 id. 144; State v. Burt, 64 N. C. 619. So, to constitute larceny the goods taken must be of some value, however small. State v. v. Smart, 4 Rich. (S. C.) 356; People v. Wiley, 3 Hill, 194; Com. v. Rand, 7 Metc. (Mass.) 475; State v. Dobson, 3 Harr. (Del.) 563; Wilson v. State, 1 Port. (Ala.) 118. Thus, at common law no larceny can be committed of animals in which there is no property, either absolute or qualified; as of animals feræ naturæ and unreclaimed (Warren v. State, 1 Greene [Iowa], 106; Norton v. Ladd, 5 N. H. 203); or, even of unreclaimed animals which do not serve for food (Findley v. Bear, 8 Serg. & R. [Penn.] 571). But reclaimed honey bees are an exception; their honey being fit for food. State v. Murphy, 8 Blackf. (Ind.) 498; Wallis v. Mease, 3 Binn. (Penn.) 546. See Gillet v. Mason, 7 Johns. 16; Idol v. Jones, 2 Dev. (N. C.) 163; Ferguson v. Miller, 1 Cow. 243, vol. 1, p. 799, note 401. As to what is a reclaiming of a wild animal, see Pierson v. Post, 3 Caines, 175; Buster v. Newkirk, 20 Johns. 75; Gillet v. Mason, 7 id. 16; Taber v. Jenny, 1 Sprague (R. I.), 315; Com. v. Chase, 9 Pick. (Mass.) 15; State v. Turner, 66 N. C. 618; Com. v. Beaman, 8 Gray (Mass.), 497. Oysters planted by an individual in a bed, clearly designated and marked out in a bay or arm of the sea, are the property of him who plants them, and are, therefore, subjects of larceny. State v. Taylor, 3 Dutch. (N. J.) 117; Fleet v. Hegeman, 14 Wend. 42. Vol. 1, p. 800, note 401. A chose in action, being considered a mere evidence of value, without intrinsic worth, is not a subject of larceny at common law. Culp v. State, 1 Port. (Ala.) 33; People v. Griffin, 38 How. 475; Moore v. Com., 8 Barr (Penn.), 260; U. S. v. Bowen, 2 Cranch's C. C. 133; U. S. v. Carnot, id. 469; State v. Tillery, 1 Nott & McCord (S. C.), 9; Thomasson v. State, 22 Ga. 499; Ryland v. State, 4 Sneed (Tenn.), 357. And the stealing of a letter was held not indictable, as it is of no intrinsic value. Payne v. People, 6 Johns. 103. But in the United States, as in England, the larceny of choses in action is made indictable by various statutes, in the construction of which the rules of common law larceny are to be applied. See, generally, State v. Wisdom, 8 Port. (Ala.) 511; People v. Call, 1 Denio, 120; Vaughn v. Com., 10 Gratt. (Va.) 758; State v. Braden, 2 Tenn. 68; Low v. People, 2 Park. 37; State v. Hand, 3 Harr. (Del.) 563; Com. v. Rand, 7 Metc. (Mass.) 475; Donald v. The State, 8 Mo. 283; Starkey v. The State, 6 Ohio St. 266. So, there are statutory provisions against the larceny of things attached to the soil. See State v. Williams, 2 Strobh. (S. C.) 474; State v. Stephenson, 2 Bailey (S. C.), 334. |