a misdemeanor only; and there are others of them not assignable to the class either of felony or misdemeanor ; but restrained by fixed pecuniary penalties only, recoverable, in a summary way, before a justice of the peace (g). We have seen that larceny may not only be simple, but combined with circumstances of aggravation; which is described in our books as mixed, compound, or complicated larceny (h); and this is not only, like simple larceny, felonious, but is felony of a more penal character. We will therefore now consider, 1. Larceny in a dwelling-house. [This species of theft, though it seems to have a higher degree of guilt than simple larceny, yet was not at all distinguished from the other at common law (i); unless where it was accompanied with the circumstance of breaking the house by night, and then it fell under another description, viz., that of burglary.] But afterwards, by several Acts of Parliament,-[the history of which is very ingeniously deduced by a learned modern writer (k), who hath shown them to have gradually arisen from our improvements in trade and opulence,]—the benefit of clergy was taken from larcenies committed in a house in almost every instance; so that the capital sentence, to which they were subject as larcenies, took effect. These Acts, however, are all now repealed, and this crime is now regulated by 24 & 25 Vict. c. 96, ss. 60, 61 (7). By the first of these provisions, whosoever shall steal in any dwelling-house, any chattel, money, or valuable security to the value of five pounds or more, shall be liable to penal servitude for fourteen years, or not (g) Vide post, chapter on Summary Convictions. (h) 4 Bl. Com. 239; Hawk. P. C. b. 1, cc. 33, 34. (i) Hawk. P. C. b. 1, c. 36. &c. (1) The previous provisions on this head, contained in 7 & 8 Geo. 4, c. 29, s. 12, and 7 Will. 4 & 1 Vict. c. 86, s. 5, are repealed by 24 & 25 Vict. c. 95. less than three years; or to be imprisoned, with or without hard labour and solitary confinement, not exceeding two years; and by the second, the same punishment. is awarded to whomsoever shall steal in a dwellinghouse any chattel, money or valuable security, and shall by any menace or threat put any one, being therein, in bodily fear. Whosoever shall 2. Larcenies in ships, wharfs, &c. steal any goods or merchandize in any vessel, barge or boat in any haven or port of entry or discharge, or upon any navigable river or canal, or in any creek or basin belonging to or communicating with any such haven, port, river, or canal ;—or who shall steal any goods or merchandize from any dock, wharf, or quay adjacent to any such haven, port, river, canal, creek, or basin;-is liable to the same punishments as last mentioned (n). And the same punishments may be awarded to whomsoever shall plunder or steal any part of any ship or vessel in distress, or wrecked, or stranded, or cast on shore, or any goods, merchandize, or articles of any kind to her belonging (o). 3. [Larceny from the person (p): which is either by privately stealing; or by open and violent assault, usually called robbery. The offence of privately stealing from a man's person,—as by picking his pocket or the like, privily without his knowledge,-was debarred of the benefit of clergy so early as by the statute 8 Eliz. c. 4 (q):] a severity which [seems to be owing to the ease with which such (n) 24 & 25 Vict. c. 96, s. 63. (0) Sect. 64. (p) In certain cases, larceny from the person may be disposed of summarily by justices at petty sessions, (or before a metropolitan or stipendiary magistrate.) Vide post, chapter on Summary Convictions. (q) This, however, was only where the thing stolen was of the value of more than twelve pence; for if it was below that value, so as to reduce the offence to petit larceny (as to which vide sup. p. 203), there was no need of the benefit of clergy,-the sentence not being capital. Hawk. P. C. b. 1, c. 35, s. 4. [offences are committed, the difficulty of guarding against them, and the boldness with which they were practised (even in the Queen's court and presence) at the time when this statute was made: besides, that this was an infringement of property in the manual occupation or corporal possession of the owner; which was an offence even in a state of nature: and, therefore, the saccularii, or cut purses, more severely punished than common thieves by the Roman and Athenian laws (r).] But this statute of Elizabeth, is now repealed by 7 & 8 Geo. IV. c. 27; and new provisions are now in force as to the punishment of this offence, of which we shall presently have occasion to speak more at large. [Open and violent larceny from the person, or robbery, the rapine of the civilians, is the] unlawful and [forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear (s). 1. There must be] an unlawful [taking, otherwise it is no robbery (t).] On the other hand, [if the thief, having once taken a purse, returns it, still it is a robbery (u); and so it is, whether the taking be strictly from the person of another, or in his presence only; as where a robber, by menaces and violence, puts a man in fear, and drives away his sheep or his cattle before his face (x). But if the taking be not either directly from his person or in his presence, it is no robbery (y). 2. It is immaterial of what value the thing is: a penny as well as a pound, thus for (r) Ff. 47, 11, 7; Pott. Antiq. 1. 1, c. 26. (s) Hawk. P. C. b. 1, c. 34, s. 2. (t) A mere attempt to rob was held to be felony, so late as Henry the fourth's time; (1 Hale, P. C. 532;) but afterwards it was taken to be only a misdemeanor, until 7 Geo. 2, c. 21; which made it a felony. This statute was repealed by 4 Geo. 4, c. 54, itself repealed by VOL. IV. 7 & 8 Geo. 4, c. 27. As to the present law with regard to assaults with intent to rob, under 24 & 25 Vict. c. 96, s. 40, et seq., vide post, p. 211. (u) R. v. Peat, 1 Leach, C. C. 228. (x) 1 Hale, P. C. 533. (y) Comyns, 478; R. v. Francis, Str. 1015. P [cibly extorted, makes a robbery (z). 3. Lastly, the taking must be by force, or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing. For, according to the maxim of the civil law, qui vi rapuit, fur improbior esse videtur (a). This previous violence or putting in fear, is the criterion that distinguishes robbery from other larcenies. For if one privately steals] a chattel [from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent (b). Not that it is indeed necessary to lay in the indictment, that the robbery was committed by putting in fear; it is sufficient if laid to be done by violence (c). And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enough that so much force or threatening, by word or gesture, be used as might create an apprehension of danger; or induce a man to part with his property without or against his consent (d). Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery.] Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence; this also falls within the definition of the same crime (e). [So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubtful whether the forcing a higgler or other chapman to sell his wares, and giving him the full value for them, amounts to so heinous a crime as robbery (f). This species of larceny was debarred of the benefit of clergy by stat. 23 Hen. VIII. c. 1, and other subsequent statutes; not indeed in general, but only when committed in a (2) Hawk. P. C. b. 1, c. 34, s. 16. (a) Ff. 47, 2, 4, xxii. (b) 1 Hale, P. C. 534. (c) Trin. T. 3 Ann. so held by all the judges. (d) Fost. 128. (e) Hawk. P. C. b. 1, c. 34, s. 8. (f) Ibid. s. 14. [dwelling-house, or in or near the king's highway. A robbery, therefore, in a distant field, was not punished with death (g); but was open to the benefit of clergy till the statute 3 & 4 W. & M. c. 9; which took away clergy from both principals and accessories before the fact in robbery, wheresoever committed.] But all these statutes, as well as the 8 Eliz. c. 4, with respect to privately stealing from the person,-were repealed by 7 & 8 Geo. IV. c. 27. And, by other enactments, new provisions are now made against both species of offences; with distinctions, as regards robbery, suitable to the aggravations with which that crime may have been committed. According to these, whosoever shall rob any person, or shall steal any chattel, money or valuable security from the person of another, shall be guilty of felony, and may be sentenced to penal servitude for fourteen years or not less than three years, or to imprisonment, with or without hard labour and solitary confinement, not exceeding two years (h). And if the robbery be not effected or proved, but the offender be convicted (as he may be on an indictment for robbery) of an assault with intent to rob, then such assault is also felony, and imprisonment to the same extent may be awarded; but, if the punishment be by way of penal servitude, the term in that case is limited to three years (i). In certain instances, however, either robbery or an assault with that intent, is more severely punishable; for whosoever shall, being armed with any offensive weapon or instrument, rob or assault with intent. to rob any person; or shall, together with one or more other person or persons, rob or so assault any person; or shall rob any person, and at the time of or immediately before or after wound, beat, strike, or use any other personal violence to any person,-may be sentenced to (g) 1 Hale, P. C. 535. (h) 24 & 25 Vict. c. 96, s. 40. This and the following provisions are in substitution for others con tained in 7 Will. 4 & 1 Vict. c. 87, and 14 & 15 Vict. c. 100, which are repealed by 24 & 25 Vict. c. 95. (i) 24 & 25 Vict. c. 96, ss. 41, 42. |