husband's house, which is the same as her own. The intention of the statute was declared to be, to protect the owner's property in his own house from the depredation of others, or the property of others lodged in his house; thereby giving protection against all but the owner himself. It has also been decided that the property stolen must be such as is usually under the protection of the house, deposited there for safe custody, and not things immediately under the eye or personal care of some one who happens to be in the house. 2 East P. C. 644-646; The King v. Gould, 1 Leach (3d ed.), 257; The King v. Thompson & Macdaniel, 1 Leach, 379; The King v. Campbell, 2 Leach, 642. See also Rex r. Taylor, Russ. & Ry. 418; Rex v. Hamilton, 8 C. & P. 49; Rex v. Carroll, 1 Mood. C. C. 89. And it has also been held that the St. 24 G. II. c. 45, does not extend to stealing by the owner and master of a vessel. Rex v. Madox, Russ. & Ry. 92.

We are of opinion that the purpose and intent of St. 1804, c. 143, § 6, and of the Rev. Sts. c. 126, § 14, were the same as the purpose and intent of St. 12 Anne, c. 7, and that they must have the same construction which was given to that before these were enacted. Indeed, the attorney general frankly admits this, and that he cannot ask for sentence against the defendant, as for an aggravated larceny, unless it is required or warranted by St. 1851, c. 156, § 4. We think that statute has not altered the law in this matter; that it has only made larceny "in any building," an aggravated offence, as former statutes made it when committed in certain enumerated buildings; and that it has not subjected to the punishment therein prescribed any larceny which, if committed in either of those buildings, would not have been liable to such punishment. The statute was passed in consequence of the decision, in Commonwealth v. White, 6 Cush. 181, that the passenger room of a railroad station was not an office," within the meaning of the Rev. Sts. c. 126, § 14.

66

Defendant to be sentenced for simple larceny.1

COMMONWEALTH v. SMITH.

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1873.

[Reported 111 Massachusetts, 429.]

INDICTMENT alleging that the defendant, on April 14, 1872, at Braintree, certain bank notes "of the property, goods, and moneys of James Gilbride, in a certain building there situate, to wit, the dwelling-house of one Patrick McGuire, and then and there in the possession of the

1 Acc. Rex v. Gould, Leach (4th ed.), 257. Otherwise, in England, under Stat. 7 & 8 G. IV. ch. 29, § 12; Reg. v. Bowden, 2 Moo. C. C. 285.-ED.

said James Gilbride, being found, feloniously did steal, take, and carry away."

At the trial in the Superior Court in Norfolk, before Putnam, J., the Commonwealth introduced evidence tending to show that the defendant and James Gilbride lodged together in the same room of McGuire's house; that Gilbride went to the room where the defendant was already in bed, put the money in his trunk, locked the trunk, put the key of it in his pocket, undressed, put his clothes on a chair, and went to bed; that the defendant got up in the night, took the key from the pocket, opened the trunk, took out the money, and returned the key to the pocket. Gilbride testified that he was awakened in the night, and saw Smith with a lighted match at one of the trunks in the room, but did not know it was his own trunk, and thought nothing more of it, until he missed the money.

The defendant asked the judge to rule that upon this evidence the jury could not find the defendant guilty of larceny in a building, but only of simple larceny. The judge declined so to rule, and left it to the jury under instructions which authorized them to find the defendant guilty of larceny in a building. The jury returned a verdict of guilty.

The defendant then moved in arrest of judgment on the ground that the indictment did not aver that the larceny charged was committed in any building, but the judge overruled the motion.

The defendant alleged exceptions.

W. E. Jewell, for the defendant.

W. G. Colburn, Assistant Attorney General (C. R. Train, Attorney General, with him), for the Commonwealth.

GRAY, J. The indictment duly charges larceny in a building. The allegation that the defendant stole property in the dwelling-house described necessarily includes a statement that the act of stealing was done in the building. And the whole charge was supported by the proof. In order to constitute larceny in a dwelling-house or other building, the property stolen must indeed be under the protection of the house, and not under the eye or personal care of some one who happens to be in the house. The King v. Owen, 2 Leach (4th ed.), 572; Commonwealth v. Hartnett, 3 Gray, 450, 452. But money of a lodger in his trunk, as well as the key of the trunk in a pocket of his clothes, is clearly, while he is in bed, undressed, and asleep, not under his own protection, but under the protection of the house. Rex v. Taylor, Russ. & Ry. 418; Rex v. Hamilton, 8 C. & P. 49. The defendant was therefore rightly convicted of larceny in a building.

Exceptions overruled.'

COMMONWEALTH v. LESTER.

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1880.

[Reported 129 Massachusetts, 101.]

AMES, J. In an indictment founded upon the Gen. Sts. c. 161, § 15, for larceny in a building, it is not enough to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief. It is necessary to show also that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building. The watches in this case were a part of the owner's stock in trade, usually kept by him in the building. But his testimony, which was the only evidence to the point, is to the effect that he was in charge of the property, when the defendant came in and asked to look at some watches, and that he handed the watches to the defendant; that he was not sure whether the defendant held the watches in his hand, or whether they were lying on the show-case; and that they were stolen while he turned partially round to place something upon the shelf behind him. If they were upon the show-case when stolen, it would be at least doubtful whether they must not, under the circumstances, be considered as rather in the possession of the owner than under the protection of the building. If by the act of the owner they were in the hands of the defendant, they certainly derived no protection from the building. As the evidence left it wholly uncertain whether they were on the show-case or in the defendant's own hands, it did not warrant a conviction of larceny in a building; and the jury should have been so instructed. Rex v. Campbell, 2 Leach (4th ed.) 564; Rex v. Castledine, 2 East P. C. 645; Rex v. Watson, 2 East P. C. 680; s. c. 2 Leach, 640; Rex v. Hamilton, 8 Car. & P. 49, 50, note; Commonwealth v. Smith, 111 Mass. 429.

609.

Exceptions sustained.

1 The opinion only is given; it sufficiently states the case.

2 Acc. Rex v. Campbell, Leach (4th ed.). 642. Contra, Simmons v. State, 73 Ga. See Com. v. Nott, 135 Mass. 269.- ED.

THE prisoner was tried and convicted before Mr. Justice Bayley at the Old Bailey Sessions, September, 1809, on the statute 39 G. III. c. 85, for embezzling three shillings, which he received for and on account of his masters, James Clarke and John Giles.

It appeared from the evidence that the prosecutors desired a neighbor, one Francis Moxon, to go to their shop and purchase some articles in order that they might discover whether the prisoner put the money which he received for the goods sold into the till; the prosecutors supplied Moxon with three shillings of their own money for this purpose, which money they marked. Moxon went to the shop, bought the articles, and paid the prisoner the three shillings. The prisoner embezzled this money.

It was urged on behalf of the prisoner that the prosecutors had constructively the possession of this money up to the time of the embezzlement and that they had parted with nothing but the mere custody. The prisoner it was contended might have been indicted for larceny at common law, but that the statute did not apply to cases where the money before its delivery to the servant had been in the masters' possession and might legally be considered the masters' at the time of such delivery, as Moxon in this case was the masters' agent and his possession theirs.

The learned judge before whom this case was tried thought it deserved consideration, and reserved the point for the opinion of the judges.

In Michaelmas term, 1809, the judges met and held the conviction right, upon the authority of Bull's case, in which the judges upon similar facts held a common-law indictment could not be supported. It seemed to be the opinion of the judges that the statute did not apply to cases which are larceny at common law.

[Reported Law Reports, 2 Crown Cases Reserved, 28.]

CASE stated by the Chairman of the West Kent Sessions.

The prisoner was indicted as servant to George Smeed for stealing £2, the property of his master.

The prisoner was employed by Mr. Smeed of Sittingbourne, Kent, as captain of one of Mr. Smeed's barges.

ton.

The prisoner's duty was to take the barge with the cargo to London, and to receive back such return cargo and from such persons as his master should direct. The prisoner had no authority to select a return cargo or take any other cargoes but those appointed for him. The prisoner was entitled by way of remuneration for his services to half the earnings of the barge after deducting half his sailing expenses. Mr. Smeed paid the other half of such expenses. The prisoner's whole time was in Mr. Smeed's service. It was the duty of the prisoner to account to Mr. Smeed's manager on his return home after every voyage. In October last, by direction of Mr. Smeed, the prisoner took a load of bricks to London. In London he met Mr. Smeed and asked if he should not on his return take a load of manure to Mr. Pye of CaxMr. Smeed expressly forbade his taking the manure to Mr. Pye, and directed him to return with his barge empty to Burham, and thence take a cargo of mud to another place, Murston. Going from London to Murston he would pass Caxton. Notwithstanding this prohibition the prisoner took a barge-load of manure from London down to Mr. Pye at Caxton, and received from Mr. Pye's men £4 as the freight. It was not proved that he professed to carry the manure or to receive the freight for his master. The servant who paid the £4 said that he paid it to the prisoner for the carriage of the manure, but that he did not know for whom. Early in December the prisoner returned home to Sittingbourne and proposed to give an account of his voyage to Mr. Smeed's manager. The prisoner stated that he had taken the bricks to London, and had returned empty to Burham, as directed by Mr. Smeed, and that there he had loaded with mud for Murston.

In answer to the manager's inquiries the prisoner stated that he had not brought back any manure in the barge from London, and he never accounted for the £4 received from Mr. Pye for the freight for the

manure.

The jury found the prisoner guilty as servant to Mr. Smeed of embezzling £2.

The question was whether, on the above facts, the prisoner could be properly convicted of embezzlement. 24 & 25 Vict. c. 96, § 68, enacts that "Whosoever, being a clerk or servant, or being employed for the