[than simple larceny, yet was not at all distinguished therefrom at common law (m); unless where it was accompanied with the circumstance of breaking the house by night, and then it fell under another description of crime, viz., that of burglary. But afterwards, by several Acts of Parliament, the history of which is very ingeniously deduced by a learned writer, who hath shown them to have gradually arisen from our improvements in trade and opulence, -the benefit of clergy was taken, in almost every instance, from larcenies when committed in a house (n); so that the capital sentence, to which they were at that period of our law subject as larcenies, took effect (o).] These Acts, however, are all repealed, and this crime is now regulated by 24 & 25 Vict. c. 96, ss. 60, 61 (p). By the first of these provisions, whoever 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 less than five years (9); 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 dwelling-house any chattel, money or valuable security, and shall by menace or threat put any one, being therein, in bodily fear. 2. Larcenies in ships, wharfs, &c. Whoever shall steal goods or merchandize in a vessel, barge or boat in any haven or port of entry or discharge, or upon a navigable river or canal, or in a creek or basin belonging to or communicating with such haven, port, river, or canal:-or who shall steal any goods or merchandize from a dock, wharf, or quay adjacent to such haven, port, river, canal, creek, or basin ;—is liable to the same punishments as last (m) Hawk. P. C. b. 1, c. 36. (n) See Barrington on Statutes, 375, &c. (0) Vide sup. p. 125. (p) 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 c. 86, s. 5, were repealed by 24 & 25 Vict. c. 95. (2) See 27 & 28 Vict. c. 47. mentioned (). And the same punishments may also be awarded to whomsoever shall plunder or steal any part of a ship or vessel in distress, or wrecked or stranded, or cast on shore; or goods, merchandize, or articles of any kind to her belonging (s). 3. [Larceny from the person (t): 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 of 8 Eliz. c. 4 (u): a severity which seems to be owing to the ease with which such 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; and hence, too, the saccularii, or cut purses, were more severely punished than common thieves both by the Roman and Athenian laws (r).] But this statute of Elizabeth was repealed by 7 & 8 Geo. IV. c. 27; and new provisions are now in force as to the punishment of this offence (which is no longer capital). [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 () 24 & 25 Vict. c. 96, s. 63. (s) Sect. 65. (t) 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. (u) This, however, was only where the thing stolen was of the K 2 value of more than twelve pence, for if it was below that value, so as to reduce the offence to petty larceny (as to which, vide sup. p. 126), there was no need of the benefit of clergy-the sentence not being capital. (Hawk. P. C. b. 1, c. 35, s. 4.) (e) Ff. 47, 11, 7; Pott. Antiq. 1. 1, c. 26. [to any value, by violence or putting him in fear (y). 1. There must be an unlawful taking, otherwise it is no robbery (2). On the other hand, if the thief, having once taken a purse, return it to the owner, still it is a robbery (a); 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 (b). But if the taking be not either directly from his person or in his presence, it is no robbery (c). 2. It is immaterial of what value the thing is a penny as well as a pound, thus forcibly extorted, makes the robbery (d). 3. Lastly, the taking must be by force, or a previous putting in fear, for it is this 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 (e). 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 (ƒ). 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. 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 (y) Hawk. P. C. b. 1, c. 34, s. 2. (2) 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 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. 134. (a) R. v. Peat, 1 Leach, C. C. 228. (b) 1 Hale, P. C. 533. (c) Comyns, 478; R. v. Francis, Str. 1015. (d) Hawk. P. C. b. 1, c. 34, s. 16. [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 (h). 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 (i). So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it has been doubted 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 (k). 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 dwelling-house, or in or near the king's highway. A robbery, therefore, in a distant field, was not punished with death (1); but was open to the benefit of clergy till the statute 3 W. & M. c. 9; which took away clergy from both principals and accessories before the fact in robbery, wheresoever committed.] But the statutes above referred to,-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 later enactments, new provisions have been made against both species of offences (m); with distinctions, as regards robbery, suitable to the aggravations with which that crime may have been committed. According to these (which are contained in 24 & 25 Vict. c. 96), whoever shall rob any (h) Fost. 128. (i) Hawk. P. C. b. 1, c. 34, s. 8. (*) Ib. s. 14. (2) 1 Hale, P. C. 535. (m) The provisions referred to in the text were, however, preceded by others on the same subject, contained in 7 Will. 4 & 1 Vict. c. 87 and 14 & 15 Vict. c. 100, which were repealed by 24 & 25 Vict. c. 95. person, or shall steal any chattel, money or valuable security from his person, shall be guilty of felony, and may be sentenced to penal servitude for fourteen years or not less than five years, or to imprisonment, with or without hard labour and solitary confinement, not exceeding two years (n). 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 as last mentioned may be awarded; though, if the punishment be by way of penal servitude, the term in such case is limited to five years (o). In certain instances, however, either robbery or an assault with intent to rob, is more severely punishable; for whoever shall rob, or assault with intent to rob, being at the time armed with an offensive weapon or instrument or being in company with other persons; or who shall rob, and at the time of or immediately before or after such robbery wound, beat, strike, or use personal violence to any person,—may be sentenced to penal servitude for life, or not less than five years, if that species of punishment be awarded (p); but here, also, he may, at the discretion of the court, be sentenced to the alternative punishment of imprisonment, to the extent and in the manner already particularized (1); and to this (by a later provision) the infliction of whipping may be added (†). In connection with the crime of robbery, may here be mentioned the provisions which have been framed to repress the offence of extorting by threats money and other valuables. And, first, (with the exception of the whipping,) the same punishments as last mentioned are awarded to the felonious act of sending, delivering or uttering, or directly (n) 24 & 25 Vict. c. 96, s. 40; 27 & 28 Vict. c. 47. (0) 24 & 25 Vict. c. 96, ss. 41, 42. (p) See 27 & 28 Vict. c. 47. (9) 24 & 25 Vict. c. 96, s. 43. The provision previously in force (7 Will. 4 & 1 Vict. c. 87, ss. 2, 3, repealed by 24 & 25 Vict. c. 95), made robbery, accompanied with wounding, &c., a capital felony. (r) 26 & 27 Vict. c. 44. |