or the special use of goods, but not the possession of them; as a shepherd who looks after my sheep, or a butler who takes care of my plate, or a servant who keeps a key of my chamber, or a guest who has a piece. of plate set before him in an inn, may be guilty of felony, in frandulently taking away the same. 1 Haw. 90. 4 Bl. Com. 231.

And carrying away......To make it come within this description, it seemeth that any the least removing of the thing taken from the place where it was before is sufficient for this purpose, though it be not quite carried off; and upon this ground, the guest who having taken off the sheets from his bed with an intent to steal them, carried them into the hall and was apprehended before he could get out of the house, was adjudged guilty of larceny. So also was he, who having taken an horse in a close, with an intent to steal him, was apprehended before he could get him out of the close. Haw. 93.

By any person......A wife may be guilty thereof, by stealing the goods of a stranger: but not by stealing the goods of her husband.

1 Haw. 93.

It is said by Mr. Dalton and others, that it is no felony for one reduced to extreme necessity to take so much of another's victuals as will save him from starving; but lord Hale says, that this rule by the law of England is false; and therefore, that if a person being under necessity for want of victuals or clothes, steals another man's goods, it is felony. H. H. 54.

If one stealeth another man's goods, and afterwards another stealeth the same from him; the owner may charge the first or second felon, at his choice. Dalt. c. 162.

An alien whose sovereign is in amity with the United States, residing here, and receiving the protection of the law, oweth a local allegiance to the government during the time of his residence, and if, during that time, he committeth an offence, he shall be liable to be punished for the same, even as a natural born citizen; for his person and personal estate are as much under the protection of the law as the natural born citizen, and if he is injured in either, he hath the same remedy at law for such injury. Fost. 185.

So also, an alien whose sovereign is at enmity with us, living here under the commonwealth's protection, committing offences, may be proceeded against in like manner; for he oweth a temporary local allegiance, founded on that share of protection he receiveth. Ibid.

So also a prisoner of war, although he is not properly subject to the municipal laws of this country, yet if he commits any offence against the law of nations, or the light of nature and the fundamental laws of all society, he is liable to answer in the ordinary course of justice, as other persons offending in like manner are. As in the case of Peter Molieres, a French prisoner, who was indicted at the jail delivery for the city of Bristol, in August, 1758, before Sir Michael Foster, for privately stealing, in the shop of a goldsmith and jeweller, a diamond ring, valued at twenty pounds. Sir Michael says, he thought it highly improper to proceed capitally, upon a local statute, against a prisoner of war; and therefore advised the jury to acquit him of the circumstance of stealing in the shop, as by the statute, and to find him guilty of simple larceny to the value laid in the indictment. Accordingly he was burnt in the hand, and sent to the prison appointed for French prisoners. Ibid. 188.

Of the mere personal goods....Mere; for if the personal goods savour any thing of the reality it cannot be larceny. And therefore they ought to be no way annexed to the freehold; therefore it is no larceny, but a bare trespass, to steal corn or grass growing, or apples on a tree; but it is larceny to take them, being severed from the freehold, as wood cut, grass in cocks, stones digged out of the quarry; and this, whether they are severed by the owner, or even by the thief himself, if he sever them at one time, and then come again at another time and take them. 1 Haw. 93. 1 H. H. 510. 4 Bl. Com. 232.

Also, the goods ought to have some worth in themselves, and not to derive their whole value from the relation they bear to some other thing, which cannot be stolen; as paper or parchment, on which are written assurances concerning lands, or obligations, or covenants, or other securities for a debt, or other chose in action. 1 Haw. 93.

66

But if any record, or parcel of the same, writ, return, pannel, process, or warrant of attorney, in any court within this commonwealth, be willingly stolen, taken away, withdrawn, or avoided by any clerk, or by any other person, because whereof any judgment shall be reversed, such stealer, taker away, withdrawer, or avoider, their procurers, counsellors and abettors, being thereof indicted, and duly convicted, by their own confession, or by inquest to be taken of lawful men, shall be judged for felons, and shall incur the pain of felony." 1 Rev. Code, p. 45.

This being a clergyable offence, before the amendment of our penal code, is now punishable by confinement in the penitentiary, for à period not less than six months, nor more than two years. See 1 Rev, Code, p. 357, sect. 13. and CLERGY....BENEFIT OF.

And he or she shall be adjudged a felon, and not have the benefit of clergy, who shall steal, or by other means take from the possession or custody of another, any warrant from the register of the land-office of this commonwealth, to authorise a survey of waste and unappropriated lands." 1 Rev. Code, p. 250, sect. 6.

Also," he or she shall be adjudged a felon, and not have the benefit of clergy, who shall steal, or by robbery take from the possession or custody of another, any loan-office" certificate of the United States, or any of them, or any warrant of the governor or other person exercising that function, or any certificate of the auditor for public accounts to the treasurer, authorising the payment of money, or shall present, or cause to be presented, such loan-office certificate at a loan office of the United States, or any of them, for the discharge of the whole, or any part thereof, or such warrant or auditor's certificate at the public treasury, for the payment thereof, knowing such loan-office certificate, or warrant, or auditor's certificate to have been stolen, or by robbery to have been taken from the possession or custody of another." | Rev. Cede, p. 250, sect. 7.

The two cases next above mentioned, not having been expressly enumerated, in the penitentiary law, they are, under the act of the twenty-first of January 1800, punishable by confinement, for a period not less than one nor more than ten years. See 1 Rev. Code, p. 412. And if any person shall steal or take by robbery from another, any bank or post note, then every such person, being duly thereof convicted, shall be sentenced to suffer imprisonment in the jail and

penitentiary house, for a period of time not less than three years, nor more than ten years." 2 Rev. Code, p. 118.

The goods ought also not to be things of a base nature, as dogs, cats, bears, foxes, monkeys, ferrets, and the like, which, howsoever they may be valued by the owner, shall never be so highly regarded by the law, that for their sakes a man shall die: but yet the stealing of an hawk, knowing it to be reclaimed, is felony by the common law, and by statute, in respect of that very high value which was formerly set upon that bird 1 Harv. 93.

Of another....It seems agreed, that the taking of goods, whereof no one had a property at the time, cannot be felony; and therefore that he who takes any treasure trove, or a wreck, waif, or stray, before they have been seized by the persons who have a right thereto, is not guilty of felony, but shall be punished by fine. 1 Haw. 94.

A man may, under some circumstances, be guilty of stealing his own goods; as where he takes them from a pawn-broker, or any one to whom he has entrusted them, with intent to charge the bailee with the value. 4 Bl. Com. 231.

But yet the taking of these must be, where the party that takes them really believes them to be such, and colours not a felonious taking under such a pretence; for then every felon would cover his felony under that pretencc. 1 H. H. 506.

Neither shall he who takes fish in a river, or other great water, wherein they are at their natural liberty, be guilty of felony; as he may be, who takes them out of a trunk or pond. 1 Haw. 94.

Upon the like ground it seems clear, that a man cannot commit felony, by taking hares or conies in a warren, or old pigeons being out of the house; but it is agreed, that one may commit larceny, by taking such or any other creatures feræ naturæ, if they be fit for food, and reduced to tameness, and known by him to be so. 1 Haw. 94. 4 Bl. Com, 236.

Also, it is said, that there may be felony in taking goods, the owner whereof is unknown; in which case the commonwealth shall have the goods, and the offender shall be indicted for taking the goods of a person unknown; and it seems, that in some cases the law will rather feign a property, where in strictness there is none, than suffer an offender to escape. 1 Haw. 94.

He who steals goods belonging to a parish church may be indicted for stealing the goods of the parishioners. Ibid.

And it hath been adjudged, that he who takes off a shroud from a dead corps, may be indicted as having stolen it from him, who was the owner thereof when it was put on; for a dead man can have no property. 1 Haw. 94. 4 Bl. Com. 237.

Above the value of twelve pence..... The learned editor of Ilale's history of the pleas of the crown observes, that in former times, though the punishment of theft was capital, yet the criminal was permitted to redeem his life by a pecuniary ransom; but in the 9 H. 1. it was enacted, that whosoever was convicted of theft should be hanged, and the liberty of redemption was entirely taken away; which law continues to this day, but considering the alteration in the value of money, the severity is much greater now than it was then, for twelve pence would then purchase as much as forty shillings will now. And yet a theft

above the value of twelve pence is still liable to the same punishment. Upon which sir H. Spelman justly observes, that while all things else have risen in their value, and grown dearer, the life of man is become much cheaper; and from thence takes occasion to wish, that the ancient tenderness of life were again restored. 1 H. H. 12.

And lord Coke, observing that when the statute of the 3 Ed. 1. was made, which makes stealing of goods above the value of twelve pence to be grand larceny, the ounce of silver was the value of twenty pence, and now it is of the value of five shillings and above, draws the conclusion, that the things stolen ought to be reasonably valued, that is, having respect to the great alteration in the value of money. (2 Inst. 189, 190.) For twenty shillings were then a real pound weight; which name we still retain, although the weight is much diminished.

If two persons or more, together, steal goods above the value of twelve pence, every one of them is guilty of grand larceny; for each person is as much an offender as if he had been alone. 1 Haw. 95.

Also, it seems the current opinion of all the old books, that if one at several times steal several parcels of goods, each under the value of twelve pence, but amounting in the whole to more, from the same person, and be found guilty thereof on the same indictment, he shall have judgment of death as for grand larceny; but this severity is seldom practised. Ibid.

"Every person convicted of simple larceny, to the value of four dollars and upwards, or as accessóry thereto before the fact, shall restore the goods or chattels so stolen to the right owner or owners thereof, or shall pay to him, her, or them, the full value thereof, or so much thereof as shall not be restored; and moreover shall undergo a confinement in the penitentiary, for a period not less than one, nor more than three years.' 1 Rev. Code, p. 356, sect. 6.

"Robbery or larceny of obligations or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, certificates granted by or under the authority of this commonwealth, or of the United States, or any of them, shall be punished in the same manner as robbery or larceny of goods and chattels. Ibid. sect. 8.

II. PETIT LARCENY.

Petit larceny agrees with grand larceny in several particulars above mentioned, except only the value of the goods (and except as hereafter followeth) so that where ever an offence would amount to grand larceny, if the things stolen were above the value of twelve pence, it is petit larceny, if it be but of that value or under. 1 Haw. 95.

And if one be indicted for stealing goods to the value of ten shillings, and the jury find specially, as they may, 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. Ibid. 1

In petit larceny there can be no accessories, either before or after. 1 H. H. 530.

For a justice of the peace, before whom an offender shall be brought for petit larceny out of sessions, may not punish the said offender by his discretion, and so let him go; but must have him committed or

bailed, to the intent he may come to his trial, as in cases of other felonies and if, upon his trial, the jury shall find the goods stolen to exceed twelve pence in value, the offender shall have judgment to die for the fault. Dalt. c. 154.

It seemeth, that all petit larceny is felony, and consequently requires the word feloniously in an indictment for it; yet it is certain, that it is not punishable with the loss of life or lands, but only with the forfeiture of goods, and whipping, or other corporal punishment. 1 Haw.

95.

By the penitentiary law, it was enacted, that if any person should feloniously take, steal, and carry away, any goods or chattels, under the value of four dollars, the same order and course of trial should be had and observed as for other simple larcenies (which was agreeably to the common law, 4 Bl. Com. 229) and he, she, or they, being thereof legally convicted, should be deemed guilty of petit larceny, and should restore the goods and chattels so stolen, or pay the full value thereof to the owner or owners, and be further sentenced to undergo a confinement in the penitentiary, for a period not less than six months, nor more than one year. (1 Rev. Code, p. 356, sect. 7.) But the mode of trial, and the punishment, has since been considerably altered. For, by act of the first of February, 1804 (2 Rev. Code, p. 70, sect. 4.) "All free persons, accused of petit larceny, shall be tried in the court of that county wherein such offence was committed, in the manner prescribed by the act entitled 'An act to amend the several laws concerning the penitentiary,' and upon conviction of an offender, he or she shall be punished by stripes, on his or her bare back, not less than ten nor more than forty, for any one offence, or by confinement in the penitentiary house, for a term not less than eighteen months, at the discretion of the jury before whom such person shall be tried." The mode of trial, by the above recited act, is thus directed: "All offences, the punishment for which does not by law at present exceed a confinement in the penitentiary for a term of one year, shall be tried in the court of that county wherein such offence was committed; and in order to carry this power more fully into effect, Be it further enacted, That the several courts sitting for the examination of persons accused of crimes shall, if they are of opinion that the party ought to be further prosecuted, and that the offence with which he or she stands charged is cognizable before the county or corporation courts, by this act, take the recognizance of such person, with sufficient security for his or her appearance at the next quarterly term held for such county or corporation, and in case of refusal or inability to give such security, he, she, or they, shall be committed to prison, until discharged by due course of law."

"The mode of trial shall be, by indictment found by the grand jury of such county or corporation, according to the rules adopted in the district courts. The sheriff shall immediately thereupon summon twelve good and lawful men, not members of the grand jury, and in every respect qualified as venire men, as directed by law in the said district courts, who shall constitute a jury for the trial of such offender." 2 Rev. Code, p. 24, sect. 4.

Persons convicted under this act were punishable by stripes, not less than ten nor more than forty, for any one offence, or by con