284 964, 965 39, 90, 154

A

TREATISE

ON

Crimes and Misdemeanors.

BOOK THE FOURTH.

CHAPTER THE NINTH.

OF LARCENY.

pro

We may now consider of the offence called larceny, a word formed
by contraction, or rather, as it has been said, by abuse, from la-
trociny, latrocinium, and used to signify the violation of the
perty of another by theft, where the property is not taken from
the house, curtilage, &c. or the person of the owner, under such
circumstances of aggravation as have been noticed in the preceding
chapters of this book. Formerly there was a distinction of this
offence into grand larceny and petit larceny, the offence being grand
larceny when the value of the property taken was above twelve-
pence, and petit larceny, when the value was only twelve-pence,
or under that sum. (a) But the late statute 7 & 8 Geo. 4, c. 29,
s. 2, enacts, "that the distinction between grand larceny and
petty larceny shall be abolished, and every larceny, whatever be
the value of the property stolen, shall be deemed to be of the same
nature, and shall be subject to the same incidents in all respects as
grand larceny was before the commencement of this act; and every
Court whose power as to the trial of larceny was before the com-
mencement of this act limited to petty larceny, shall have power to
try every case of larceny, the punishment of which cannot exceed
the punishment hereinafter mentioned for simple larceny, and also
to try all accessories to such larceny."

By sec. 3, "every person convicted of simple larceny, or of any felony Punishments hereby made punishable like simple larceny, shall (except in the cases for simple larceny.

(a) Stat. West. 1, (3 Edw. 1,) c. 15. This statute made regulations as to such offenders as were to be mainpernable, and mentions larceny as of two kinds, namely, VOL. II.

B

grand and petit-grand larceny, when the
thing stolen was above the value of twelve-
pence; and petit larceny, when of the value
of twelve-pence, or under.

Punishment of principals in the second degree and accessories.

Definition of larceny.

hereinafter otherwise provided for) be liable, at the discretion of the Court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the Court shall so think fit) in addition to such imprisonment." The fourth section contains a general enactment with regard to the place and mode of imprisonment for all indictable offences punishable under the act, by which the Court is empowered to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the Court in its discretion shall seem meet. (a)

This statute also contains (s. 61) general provisions for the punishment of principals in the second degree and accessories. It enacts, "that in the case of every felony punishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable; and every accessory after the fact to any felony punishable under this act, (except only a receiver of stolen property) shall on conviction be liable to be imprisoned for any term not exceeding two years." (b)

The offence and punishment of receivers of stolen property will be mentioned in a subsequent chapter.

The definition of the offence of larceny is thus given by an ancient writer. "Furtum est, secundum leges, contractatio rei alienæ fraudulenta, cum animo furandi, invito illo domino cujus res illa fuerit. Cum animo dico, quia sine animo furandi non committitur." (c) In subsequent definitions, the taking of the property has been stated to be "felonious;" (d) which expression has been rendered as signifying a taking animo furandi, or, as the civil law expresses it, lucri causá. (e) In a late work of great learning and research, larceny is defined at large to be "the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner."ƒ) And in a case of recent occurrence, which was reserved for the consideration of the twelve Judges, the learned Judge who delivered their opinion said, that the true meaning of larceny is, "the felonious taking the property of another without his consent, and against his will, with intent to convert it to the use of the taker." (g)

(a) But by the 1 Vict. c. 90, s. 5, no offender" shall be kept in solitary confinement for any longer periods than one month at a time, or than three months in the space of one year."

(b) For the proceedings for the trial of accessories, see the 7 Geo. 4, c. 64, ss. 9, 10, and 11, vol. 1, p. 39, et seq.

(c) Bract. Lib. iii., c. 32, p. 150. So Glanvil, in words nearly similar, says, "Furtum est tractatio rei alienæ fraudulenta, animo furandi, invito illo cujus res illa fuerit." Glanv. lib. x. c. 13. And see Brit. c. 15, p. 22. Flet. lib. i, c. 38,

p. 54. 3 Inst. 107.

(d) 3 Inst. 107. 1 Hale, 503. 1 Hawk. P. C. c. 33. 4 Blac. Com. 229.

(e) 4 Black. Com. 232. 2 East, P. C. c. 16, s. 2, p. 553, citing Just. Inst. lib. iv., tit. 1, s. 1, which, it is observed, seems to go further than the common law in the following definition-furtum est contractatio fraudulosa lucri faciendi causâ, vel ipsius rei, vel etiam usus ejus possessionisve.

(f) 2 East, P. C. c. 16, s. 2, p. 553. (g) By Grose, J., in Hammond's case, 2 Leach, 1089.