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house, and works or trades in it, but never sleeps there, it is no dwelling, nor can burglary be committed there ; for by the lease, it is severed from the rest of the house. Nor can burglary be committed in a tent or booth erected at a fair, though the owner may lodge therein; for the law regards only permanent residences, and the lodging of the owner in so fragile a tenement makes no difference, any more than his occupying at night a covered wagon.
3. The Manner. There must be both a breaking and an entry to constitute a burglary. But they need not be simultaneous; for if a hole be broken one night, through which the breakers enter the next night, they are burglars. There must, in general, be an actual breaking, not a mere legal clausum fregit, by leaping over ideal boundaries, which may constitute a civil trespass; but there must be a forcible irruption. It must be by breaking, or by removing a glass, or otherwise opening a window; by picking a lock, or opening it with a key; by lifting a door-latch, or unloosing any other fastening.
Negligence of Owner. But if a person leaves his doors or windows open, it is his own negligence, and if a man enters therein, it is no burglary; yet if he afterwards unlocks a chamber or inner door, it is so.
Burglarious Entry. But to come down a chimney is a burglarious entry, as is also to knock at the door, and upon opening it, to rush in with felonious intent; for the law will not be trifled with by any such evasions. And so if a servant opens and enters his master's chamber, with felonious design, or knowingly lets a robber enter; or where one lodger in an inn opens and enters the door of another, with ill intent, it is burglary.
The Entry. The least entrance with any part of the body, or with an instrument held in the hand, is sufficient; as to step across the threshold, to put a hand or hook in a window to draw out goods, or a pistol to demand money. The entry may be before the breaking as well as after, as where one conceals himself in the house by day, and breaks out at night, after the commission of the felony. But there must be a breaking, as well as an entry, to complete the burglary.
4. The Intent. This must be felonious, otherwise the act is a trespass only. It is the same, whether such intention be carried into execution, or only demonstrated by some attempt of which the jury is to judge. Hence, such a breach or entry of a
house by night, with intent to commit a robbery, a murder, a rape, or other felony, is burglary, whether the thing be actually perpetrated or not. Nor does it matter, whether the offence was felony at common law, or by statute.
Punishment. At common law, burglary was within the benefit of clergy, but by statute, clergy is taken away from principals, abettors and accessories before the fact. In Athens, where no simple theft was punishable with death, burglary was made a capital crime.
CHAHTER XVII. - OFFENCES AGAINST PRIVATE
Two kinds. The word is derived from latrocinium, theft. Larceny is of two kinds : simple theft, unaccompanied with any other atrocious circumstances; and mixed or compound larceny.
Simple Larceny. When goods above the value of twelve pence were stolen, it has been termed grand larceny, while the theft of goods of smaller value was termed petit larceny. Simple larceny is the felonious taking and carrying away of the goods of another.
1. There must be a Taking. This implies the consent of the owner to be wanting. Therefore no delivery of goods from the owner to the offender upon trust can be deemed a larceny. As if A lends B a horse, which he does not return, or if I send goods by a carrier, and he conveys them away, these are not larcenies; but if the carrier opens a pack of goods, and removes part thereof, or if he carries it to its destination, and afterwards takes the entire pack, the act is larceny, for here the animus furandi is manifest; since in the first case, he had no other inducement to open the goods, and in the second, the trust was determined. Bare non-delivery may arise from other than felonious design, and may result from an accident.
1 A statute of queen Victoria abolishes the distinction between grand and petit larceny, in awarding a punishment.
Act of Servant. By common law, it was not larceny for a servant to run away with goods committed to him to keep, but only a breach of civil trust. But by statute, it was made felony for a servant to embezzle his master's goods, except in the case of apprentices and of servants under eighteen years of age. But if the servant had not the possession, but only the care and oversight of the goods, the embezzling of them was felony at the common law.
Hotel Guest. So if a guest rob his inn of a piece of plate, it is larceny; for he has not the possession delivered to him, but only the use.
One's own Goods. A man may be guilty of a felony, in stealing his own goods from a pawnbroker, with whom he had pledged them, or from any one to whom he had entrusted them, with intent to charge said bailee their value.
2. There must be a Carrying Away. Cepit et asportavit, was the old law Latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is sufficient carrying away. As if a guest stealing goods out of an inn, has removed them from a room to the base of the stairs; or if a thief, removing plate from a chest, lays it upon the floor, but is surprised before he escapes with it, this is larceny.
3. Must be Felonious, That is, it must be done animo furandi, or as the civil law expresses it, lucri causa.
This request excuses those who labor under incapacities of mind or will, and partially exonerates mere trespassers, and other petty offenders, such as a servant, who takes his master's horse without his knowledge, and brings him home again. The ordinary discovery of a felonious intent, is where the party does the act clandestinely, or being charged with the act, denies it; but this is by no means the only criterion of criminality.
It must be of the Personal Goods of Another. If they are things real, or savor of the realty, larceny at the common law cannot be committed of them. Lands, tenements and hereditaments, corporeal or incorporeal, cannot in their nature be carried away. Of things that adhere to the freehold, as corn, grass and trees, larceny could not be committed, according to the rules of the common law, but the severance of them is merely in most cases a trespass. These things were parcel of the real estate, and while they continued so, were immovable.
Severed from Realty. If they were severed by violence, so as to be changed into movables; and at the same time, by the same continued act, carried off by the person who severed them, they could not be said to be taken from the proprietor in this newly acquired state of mobility, which is essential to the nature of larceny ; being never in the possession of any one, but of him who committed the trespass. But if the thief severs them at one time, and they are thus converted into chattels, and he takes them away at another time, it is larceny; and so also if the owner has severed them. And now, by statute, the stealing of rails or gates fixed to a dwelling house or outhouse, or in any garden belonging thereto, is made felony. The stealing of growing vegetables, fruits, trees or roots, is punishable by fine and imprisonment.
Written Documents. The stealing of writings relating to real estate has been held no felony, but a trespass, because they savor of the realty. Bonds, bills and notes, which concern mere choses in action, were also at common law, held rot to be such goods, whereof larceny might be committed ; being of no intrinsic value, and not importing any property in possession of the person from whom they are taken. But by statute, they are held to be larcenies, just as would be the money they were meant to
Animals. Larceny cannot be committed of animals, ferae naturae, such as deer in a forest, nor can it be of fish in an open river, or wild fowls at their natural liberty. But if they are reclaimed or confined, the law is otherwise; as of deer in an enclosed park, or fish in a private pond. But of all valuable domestic animals, as horses, and all animals, dumitae naturae, which serve for food, as cattle, swine and poultry, and of their produce, taken from them while living, as milk or wool, larceny may be committed; and of the flesh of all such animals when killed. As to those animals which do not serve for food, and hence the law deems of no intrinsic value, as dogs of all sorts, and other creatures kept for whim or pleasure, though a man may have a base property therein, and maintain a civil action for their loss, yet they are not the subject of larceny. But by statute, pecuniary penalties or imprisonment are inflicted on those who steal a dog.
Unknown Owner. Even if the owner be unknown, provided there be a property in the thing taken, it is larceny, and an indictment will le for the stealing of goods of a party unknown. Likewise among the Romans, a prosecution for theft might be instituted without the intervention of the owner. Stealing a corpse from the grave, though a crime, is not felony, unless some of the grave-clothes be stolen with it. The laws of the Franks made no distinction in the grade of the offence.
Punishment of Simple Larceny. By the Jewish law, theft was punished by a fine, and by satisfaction to the party injured. In the earlier civil law, the punishment was not capital. The law of Draco punished it with death, but his laws were said to be written in blood; and Solon afterwards changed the penalty to a pecuniary mulct. The Attic laws, once in a time of dearth, made it a capital offence to break into a garden and steal figs ; and the odious informers were termed "sycophants," which name is now perverted from its original meaning.
The Natural Penalty. The natural punishment for injuries to property would seem to be the loss of the offender's own property, which ought to be the case, if all fortunes were equal. But as those who have no property themselves are generally the most covetous of the property of others, it is necessary to substitute temporary imprisonment in lieu of a pecuniary satisfaction, to which is often added an obligation to labor. In the major part of Europe, however, the punishment for theft continues to be capital.
Early English Law. The ancient Saxon laws punished theft with death, if the property was above twelve pence in value; but the criminal was permitted to redeem his life by a pecuniary ransom; as among their ancestors, the Germans, by a stated number of cattle. But under Henry I, the power of redemption was taken away, and the offender was capitally punished, as under the Saxon law.
Death Penalty Evaded. As a result, juries have often strained a point, and brought in the goods stolen to be under the value of twelve pence, when they were of much greater value; which was a kind of pious perjury. It is also true, that by the merciful extension of the benefit of clergy a person who commits simple larceny for any amount, though guilty of a capital offence, shall be excused the pains of death for the first crime.
Horse and Cattle Stealing. In many cases of simple larceny, the benefit of clergy is taken away by statute, as for horse stealing in both principals and all accessories, taking cloths from