[vided that an action for theft might, in certain cases, be carried on without the intervention of the owner (ƒ). An example of this may occur in the case of stealing a shroud out of a grave; which is the property of those, whoever they were, that buried the deceased: but stealing the corpse itself, though a matter of great indecency (and, if the corpse be disinterred for the purpose, an indictable misdemeanor), is said to be no felony, unless some of the grave-clothes be stolen with it (g). Having thus considered the general nature of larceny, we now arrive at its punishment, which (as we shall see) differs according to whether it is simple larceny or is attended with circumstances of aggravation. Theft, by the Jewish law, was only punished with a pecuniary fine and satisfaction to the party injured (). The laws of Draco, at Athens, 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 civil law only obliged the fur or common thief to restore the thing stolen and pay in addition a fine to the owner, though in some very late constitutions we find the punishment capital. In this country our antient Saxon laws nominally punished theft with death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom; as, amongst their ancestors the Germans, by a stated number of cattle (i).] But in the ninth year of Henry the first, this power of redemption was taken away; and all persons guilty of larceny, above the value of twelve pence, were directed to be hung (). So that (f) Gravin. 1. 8, c. 106. (g) 4 Bl. Com. 235. Blackstone adds, that by the law of the Franks, a person who dug a corpse up, in order to strip it, was to be banished from society; and no one suffered to relieve his wants till the relatives of the deceased consented to his re-admission; and he cites Montesq. Sp. L. b. 30, c. 29. (h) Exod. xxii. (i) Tac. de Mor. Germ. c. 12. (k) This sum (says Blackstone, vol. iv. p. 237) was the standard in the time of King Athelstan; and he observes that afterwards, in the reign of King Henry the first, one shilling was the stated value, at the stealing to above this value, (which was called grand larceny,) became then a capital felony and continued such down to modern times, wherever (as was very frequently the case) the benefit of clergy was taken away by some express statute from the particular species of theft of which an offender was convicted; though if not so taken away, then, by the law relating to benefit of clergy, as latterly modified, the pains of death were in fact excused, provided it were the first offence (7). On the other hand, petty larceny, that is, theft under the value of twelve pence, was never capital, but a felony punished with imprisonment or whipping only (m). At the present day, however, there is no distinction recognized by the law, between grand and petty larceny, though that between simple and aggravated larceny still remains (n). And by the provisions now in force the punishment for simple larceny, or of any felony made punishable like simple larceny, is (as the general rule) penal servitude for five years (o), or imprisonment not exceeding two years, with or without hard labour, solitary confinement, and (in the case of a male under sixteen years) whipping (p); but in certain cases (q),—or after Exchequer, of a pasture fed ox (Dial. de Scacc. 1. 1, s. 7); and that if we should suppose this shilling to mean that solidus legalis mentioned by Lyndewoode (Prov. 1. 3, c. 13), or the 72nd part of a pound of gold, it would be equal to 13s. 4d. of the present standard. It may be observed that the progressive reduction in the value of money, while death continued to be the sentence for theft to the same amount as before, justified the complaint of Sir H. Spelman (Gloss. 350), that while everything else living became dearer, the life of man had continually grown cheaper. (7) It is stated in the Report of the Criminal Code Bill Commission (p. 28), that grand larceny was a capital but clergyable felony down to the reign of Geo. IV. (m) 3 Inst. 218; Hawk. b. 1, c. 33, s. 36; 4 Bl. Com. 237. (n) The Report just mentioned states that the Commissioners are of opinion that the legal limit of punishment ought not to depend on the mere value of the property stolen (p. 28). (0) See 27 & 28 Vict. c. 47. (p) 24 & 25 Vict. c. 96, s. 4. But in certain cases, the offence of simple larceny may be summarily disposed of before justices at petty sessions, (or before a metropolitan or stipendiary magistrate). Vide post, chapter on Summary Convictions. (9) Vide post, chapter on Summary Convictions. a conviction for an indictable misdemeanor, punishable under 24 & 25 Vict. c. 96 (),—the term of penal servitude may extend to seven years (s); and in case of a conviction after a previous conviction for felony (either on indictment or by way of summary conviction), may be as long as ten years (t). In certain cases, moreover, where the larceny relates to a subject for which the policy of the law provides with more anxiety, the punishment may be even more severe. For if any person shall steal (to the value of ten shillings) any woollen, linen, hempen or cotton yarn, or any goods or article of silk, woollen, linen, cotton, alpaca or mohair; or any one or more of those materials mixed with each other, or mixed with any other material;-whilst laid, placed, or exposed, during any stage, process or progress of manufacture, in any building, field or other place, -the term of penal servitude which may at the discretion of the court be given instead of mere imprisonment, is extended to fourteen years (u). So, also, whoever shall steal a horse, mare, gelding, colt or filly; a bull, cow, ox, heifer or calf; or a ram, ewe, sheep or lamb, is punishable by penal servitude to the extent of fourteen, or not less than five years, or by imprisonment, with or without hard labour and solitary confinement, to the extent of two years (x). [The additional severity sanctioned in these instances, is owing to the difficulty there would otherwise be in preserving goods so easily carried off. Upon which principle the Roman law punished more severely than other (r) See 24 & 25 Vict. c. 96, s. 8. (u) Sect. 62, re-enacting in substance 7 & 8 Geo. 4, c. 29, s. 16. (x) 24 & 25 Vict. c. 96, s. 10; 27 & 28 Vict. c. 47. See also 24 & 25 Vict. c. 96, s. 11, as to wilfully killing any animal (the stealing whereof would have amounted to felony), with intent to steal the carcase, &c.; sects. 12-16, as to unlawfully carrying away, &c. deer kept in forests, &c. ; sect. 17, as to unlawful taking of rabbits; sect. 23, of pigeons; and sects. 24, 25, of fish. [thieves the abigei, or stealers of cattle (~); and the balnearii, or such as stole the clothes of persons who were washing in the public baths (a): both which constitutions seem to be borrowed from the laws of Athens (). And so, too, the antient Goths punished, with unrelenting severity, thefts of cattle, or corn that was reaped and left on the field; such kind of property, which no human industry can sufficiently guard, being esteemed under the peculiar custody of Heaven (c).] The offence which we have been hitherto considering is that of larceny at common law, but in connection with this offence, and proper for consideration under the same head, is the crime of stealing things not the subject of larceny at common law. For in progress of time it was found necessary to extend the protection of the penal laws to many of those subjects, of which the antient law of larceny took no account and Acts of Parliament were accordingly passed, from time to time, by which punishments were imposed for thefts committed in respect of various kinds of property so circumstanced: and though these statutes have been repealed, the same general object has been pursued in the existing Act (24 & 25 Vict. c. 96), which was passed in the year 1861, to consolidate the statute law "relating to larceny and other similar offences" (d). By this Act (e) provisions are made against stealing "valuable securities,"such as bonds, bills and the like (ƒ)—and numerous other subjects of property of which the enumeration will be (2) Ff. 17, t. 4. (a) Ib. t. 17. (b) Pott. Antiq. b. 1, c. 26. (c) Stiern. de Jure Goth. 1. 3, c. 5. (d) Some of the provisions of this Act are also pointed at the fraudulent or improper destruction of the subjects of property; and (in the case of animals) against the killing with intent to steal them. (e) This statute is to a certain extent based on a previous Act, having the same general design, and nearly the same title, viz., the 7 & 8 Geo. 4, c. 29, which (so far as the united kingdom is concerned) was repealed by the 24 & 25 Vict. c. 95. (f) 24 & 25 Vict. c. 96, ss. 1, 27. See R. v. Smith, 1 Dearsley's C. C. R. 561. found in a note below (g); and it may be laid down in general terms, that stealing has now become an offence, liable to punishment or penalty, in regard to all moveables whatever. We may also remark, with respect to the kinds of stealing thus created by statute in supplement to the antient law of larceny, that all the common law doctrines relative to larceny, which we have already had occasion to notice, are in general applicable to thefts of this description also (), though they are not technically denominated larcenies (i); and that their punishment is, in many cases, identical. In several instances, however, they do not amount, like larceny at common law, to a felony, but to 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 (). 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 (1); and this is not only, like simple larceny, felonious, but is felony of a more penal character. We will therefore now consider, 1. Larceny committed in a dwelling-house. [This species of theft, though it seems to have a higher degree of guilt (g) See 24 & 25 Vict. c. 96, ss. 18 -20, as to dogs; ss. 21, 22, as to birds and animals ordinarily kept in confinement; s. 26, as to oysters; s. 27, as to valuable securities not being part of title to lands; s. 28, as to documents of title to lands; s. 29, as to wills; s. 30, as to records and legal documents; s. 31, as to fixtures; ss. 32, 33, as to trees; ss. 34, 35, as to fences; s. 36, as to fruit; s. 37, as to garden produce; ss. 38, 39, as to ores. A variety of antecedent statutes, passed with the same ob VOL. IV. ject of supplying the defects of the antient law in this particular and noticed by Blackstone (vol. iv. p. 233, &c.), were repealed by 7 & 8 Geo. 4, c. 27. (h) R. v. St. John, 7 C. & P. 324. (i) See R. v. Gooch, 8 C. & P. 293. (k) Vide post, chapter on Summary Convictions. (7) 4 Bl. Com. 239; Hawk. P. C. b. 1, cc. 33, 34. K |