(In what Place.) Ch. XVI. § 76. converse will not hold equally general. And therefore in In houses, c. the case of breaking any out-house, (not being part of the dwelling-house,) other than a shop or warehouse, and stealing thereout under the circumstances described in the stat. 39 Eliz. it does not appear that the accessary before is expressly ousted by any statute; and if not, neither is the aider or abettor, according to the construction put upon that 1 Hale, 565. n. statute, unless he actually enter the house. Though at any rate, if the value of the goods stolen amount to 40s. then 2 Hawk. ch. 33. s. 100, 101. Supra. aiders and assisters are ousted of clergy by stat. 12 Ann. c. 7. Ante, s. 68. 73. But it will follow from the reasoning upon Powlter's case before alluded to, that the statute of William, having ousted of his clergy the accessary before to such a felony committed in a shop or warehouse, must be taken to have ousted the principal also under the like circumstances. And the case of privately stealing in houses is provided for by stat. 10 & 11 W. 3. c. 23. which I shall shortly describe. $77. Indictment. The indictment must precisely pursue the words of the statute 39 Eliz. By the words," although no person shall be "in the said house or out-houses at the time of such felony "committed," must be understood that no person was within at the time; and it must be so laid in the indictment and 1 Hale, 525. b. proved in evidence. And if it appear that the felony were committed in the night, so as to make it burglary; or when some of the family were in the house, in which case the offender might have been ousted of clergy by the stat. 5 & 6 Ed. 6. c. 9. if the indictment had been framed on that statute; the Defendant can only be convicted of simple larceny, and shall not lose the benefit of clergy. $78. Larceny of 5s. in shop, &c. though not broken, and though no person within. 10 & 11 W. 3. c. 23, 7. Privately stealing Goods, Wares, and Merchandizes to the Value of 5s. in a Shop, Warehouse, Coach-house, or Stable, by Day or Night, though not broken, and though no Person be within at the Time. In these offences the stat. 10 & 11 W. 3. c. 23. excludes from clergy the principals, assisters, hirers, and commanders; being thereof convicted or attainted by verdict or confession, or being indicted and standing mute, or challenging above twenty. (In what Places.) This statute is defective in not mentioning persons out- Ch. XVI. § 78. lawed; nor, as Hawkins says, accessaries: but the latter In shops, warehouses, coachassertion is too general as to accessaries before; for the sta- houses, c. tute extends to such as hire or command the offence to be committed. And Lord Coke, and after him Mr. Justice s. 65. 68. Foster, consider the word command as comprehending all 1 Hale, 565. n. those who incite, procure, set on, or stir up any other to do Ante, 629. the fact. 2 Hawk. ch. 33. S. Fost. 126. 10 & 11 W. 3. 2 MS. Sum. 277. Lancaster Lent & 2 MS. Sum. The words of the statute are, "privately and feloniously $ 79. “steal, &c.;" and therefore if the shop, &c. be broken, or Construction of any force used, it is not within the act. It was so ruled by c. 23. Trevor, Powis, and Blencow, in the case of Tims and Ce- No force. cil, O. B. 5th December 1711, and in Rex v. Cartwright, 534. MS. BurO. B. 1726. But the stat. 3 & 4 W. & M. c. 9. s. 1. ex- net, 79. Fost. 79. tends to breaking. In Thomas Jones' case, who was in- Jones's case, dicted on this statute for privately stealing goods out of a shop; it appeared that the shop was detached at a considera- MS. Jud. ble distance from the dwelling-house; that it was left safely MS. Buller J. locked on the Saturday night, about 12 o'clock, and on the 277, 8. Monday morning following it was discovered that the shop had been entered, (as supposed, by a false key or pick-lock,) and the goods stolen to the value of above 700l. There were two locks on the outward door of the shop, next the street, both of which were found unlocked on the Monday morning; but the door was shut, one of the locks being a spring-lock. No violence appeared to have been used in gaining admittance, but a desk in the counting-house was wrenched open and the lock broken. The prisoner was capitally convicted: but it was objected on his behalf, that force having been used by breaking the lock and wrenching the desk open, the offence was not that of privately stealing; and that the prisoner could not be convicted on this indictment. The jury found him guilty. But in Easter term 1787 all the Judges held the conviction wrong as to the capital part of the charge, there having been force used (a). But as the prisoner ought to have been convicted of the simple (a) According to the MS. of Buller J. the opening the door with a pick-lock was a force sufficient to e the case out of the statute. (In what Places.) Ch. XVI. § 79. felony upon this record, he was recommended for a pardon on In shops, ware- condition of transportation. houses, coachhouses, &c. Fost. 79. This agrees with Mr. Justice Foster's description of the offence under this statute; which, he says, seems to exclude all cases where any degree of force is used to come at the goods. R. v. Matthews, But where it did not appear whether any force had been used O. B. 5th April or not, the case was adjudged to be within the statute by Parker C. J. and Tracy J. and the same resolution was made in a subsequent case. 1715. R. v. Corder, O. B. 6th Dec. 1721, Serjt. Foster's MS. $80. Extends only to the owner's goods the 2 MS. Sum. 534. Howard's case, act: 1751, O. B. Fost. 78, 9. infra. The stat. 10 & 11 W. 3. also says "though the owner or any other person be not in such shop," &c. If, therefore, goods of a stranger only be stolen, it is not within this for this law was intended as a security for shop-keepers and traders in the better protection of their goods. And upon the same principle, it has always been holden, that the Kept in their ap- goods stolen must be such as are usually sold or exposed to propriate places sale in such shop; and not any other valuable thing which may happen to be put there: for it was the object of the statute to secure such repositories for their proper purposes. And therefore a shirt left in a mercer's shop to be sent to wash was holden not to be within the act. Post. s. 85. Vide S. C. Howard's case,* Ld.C.B. Parker,! Birch Js. Fost. 77. 1783, Sess. Pap. No. 20. and The words of the statute are "shop, warehouse," &c. O. B. 1751, cor. John Howard was indicted on the statute for privately stealFoster and ing goods the property of Fludyer and Co. in the warehouse of J. Day. Another count charged the prisoner with stealing (Vide Godfrey's the goods of J. D. in his warehouse. It appeared that Day case, O. B. Dec. kept a common warehouse by the water side, where merchants usually lodged goods intended for exportation, until they could ship them. Fludyer and Co. sent these goods to the warehouse for that purpose, from whence they were stolen by the prisoner. The court held that the case was not within the statute; for by the word warehouses were meant, not mere repositories for goods, but such places where merchants and traders kept their goods for sale in the nature 1 Leach, 322. et Qu.) * Vide Barrington on the stat. 487. observing, in contradiction to this case, that such warehouses, at a distance from the dwelling-house, were particularly meant to be protected by the stat. 10 & 11 W. 3. c. 23. and vide preface to 2d edition of Foster's C. L. xvi. of (In what Places.) of shops, and whither customers went to view them. And Ch. XVI. § 80. though there the goods might properly enough be laid to be In shops, warehouses, coachthe property of Day, since he had the charge of them, and houses, &c. was accountable for them to his principals; yet the warehouse was not a place for sale, but merely for safe custody. Accordingly the prisoner was found guilty of the simple larceny only, and acquitted of the stealing privately in the warehouse. 1 Leach, 375. Stone was indicted for privately stealing a watch, the R. v. Stone, property of Sir Robert Hesketh, in the shop of one Alcock. O. B. 1784, The prosecutor had sent it to his watch-maker to be repaired, and it hung in the show glass in the shop, from whence it was taken: yet not being there for sale, the prisoner could not be convicted under the statute. Fost. 78. 2 MS. Sum. 277. It has also been rightly holden that money is not within Money. the act with regard to any of the places mentioned in it; the Fost. 79. words being "goods, wares, and merchandizes." For though Herbert's case, the word "goods" may, and often does, in a large sense in- O. B. 1720, by Powell, Dorclude money; yet being connected with wares and merchan- mer, and Richdizes, the safer construction, in so penal a statute, will be ardson, Js. and to confine it to goods ejusdem generis, namely, goods ex- ad idem. posed to sale. But the stat. 12 Ann. st. 1. c. 7. extends ex- Ante, 629. pressly to money. Ward's case, stables. Post. s. The same construction takes place with respect to coach-Coach-houses and houses and stables: the goods must be such as are usually 2 MS. Sum. lodged in such places. For the legislature, in giving so high 277. 534. a protection to those particular repositories, intended it only Fost. 7885. for the proper and usual contents of them. In John Sea's case, the court doubted whether a livery great coat belong- O. B. 1785, ing to a coachman, which he had hung up in the stables (last edit. 341.) Leach, 248. whilst he went into the house to receive his wages, could be considered as any part of the proper or usual furniture of the stable out of which it was stolen: and therefore directed the prisoner to be acquitted of the capital part of the charge. 8. Larceny (In what Places.) Ch. XVI. § 81. 8. Larceny in a Dwelling-house or Out-house thereto belong In dwelling houses and out houses to 40s. value. § 81. to 40s. value. 12 Ann. st. 1. ing of Money, Goods, Wares, &c. to the Value of 40s. though the house be not broken, and whether any person be within or not. Clergy is therein taken away by the stat. 12 Ann. st. 1. c. 7. Larceny in dwel- from the principals, assisters, and aiders on conviction, or ling-house, c. attainder by verdict or confession; or on being indicted and standing mute, or not directly answering, or peremptorily challenging above 20. But apprentices under the age of 16, 2 Hawk. ch. 33. robbing their masters, are excepted out of the act. And neither principals outlawed, nor accessaries before, are included in it. c. 7. ante, 629. 8. 65. 68. What offenders within it. 2 MS. Sum. 274. Rex v. Mary Macdaniel and The statute has been holden not to extend to a stealing by a man in his own house; for the intention of the act was to protect the owner's property in his own house from the deEliz.Thompson, predation of others, or the property of others lodged in the O.B. Sept. 1784, owner's house; thereby giving protection against all but cor. Eyre B. the owner himself. The same point was ruled by Nares J. (Vide 1 Leach, 379. S. C. and in another case (b), where the mistress of a brothel stole Sess. Pap. No. 922. (a).) money from a sailor who lodged in her husband's house: (b) Ann Gould's because the statute extends only to the dwelling-house of case, O. B. Jan. another; and this being the house of her husband was the same as her own. And this case was afterwards approved of by Skynner C. B. Ashhurst, Gould, and Heath Justices. Ashhurst J.pre- But the statute expressly extends to servants, as appears by the preamble. 12th, 1780, cor. Nares J. (Lord C. B. Skynner, and sent and con curring), MS. Jud. (S. C. 1 Leach, 257.) Ante, 561. Dalt. ch. 58. R. v. Davis, alias Silk, ante, 499. 82. What a stealing from the house within the sta tute. The dwelling-house must be such wherein burglary may be committed, and not that which is only inhabited casually or for a special purpose. It has also been holden, that in order to bring a case within the stat. 12 Ann. the property stolen must be such as is usually under the protection of the house. The prisoner was indicted upon the stat. 12 Ann. c. 7. Ante, s. 80. for stealing in the dwelling-house of C. M. Adams, a bank Campbell's case, O. B. Jan. note of 251. It appeared that the prisoner lodged at Mrs. 1792, cor. Ld. C. B. Eyre, Buller and Wilson Js. 2 Leach, 642. (a) The accomplice, tried at the same time with the mistress of the house, was directed to be acquitted of the capital part of the charge. Adams' |