Sidebilder
PDF
ePub

§ 14, were the same as the purpose and intent of St. 12 Anne, c. 7, and that they must have the same construction which was given to that before these were enacted. Indeed, the attorney general frankly admits this, and that he cannot ask for sentence against the defendant, as for an aggravated larceny, unless it is required or warranted by St. 1851, c. 156, § 4. We think that statute has not altered the law in this matter; that it has only made larceny "in any building. an aggravated offense, as former statutes made it when committed in certain enumerated buildings; and that it has not subjected to the punishment therein prescribed any larceny which, if committed in either of those buildings, would not have been liable to such punishment. The statute was passed in consequence of the decision in C. v. White, 6 Cush. 181, that the passenger room of a railroad station was not an "office" within the meaning of Rev. St. c. 126, § 14. Sentence for simple larceny. C. v. Hartnett, 3 Gray 450. B. 701.

(Mass. Sup. Judicial Ct., 1873.) Where Prisoner and Prosecutor Slept. On indictment and trial for stealing money from the dwelling-house of M., it appeared that Smith and G. slept in the same room; and that Smith got up at night when G. was asleep, took a key from G's breeches pocket, opened G's trunk, took the money charged in the indictment, and returned the key to the pocket. The defendant asked the court to rule that there was no evidence to convict of larceny from the building. The request was refused, the case left to the jury, and defendant found guilty. He excepted. GRAY, J. The indictment duly charges larceny in a building. The allegation that the defendant stole property in the dwelling-house described necessarily includes a statement that the act of stealing was done in the building. And the whole charge was supported by the proof. In order to constitute larceny in a dwelling-house or other building, the property stolen must indeed be under the protection of the house, and not under the eve or personal care of some one who happens to be in the house. R. v. Owen, 2 Leach (Ed. 3) 652, case 243; C. v. Hartnett, 3 Gray 450, 452. But money of a lodger in his trunk, as well as the key of the trunk in a pocket of his clothes, is clearly, while he is in bed, undressed, and asleep, not under his own protection, but under the protection of the house. R. v. Taylor, Russ. & Rv. 418; R. v. Hamilton, 8 C. & P. 49. The defendant was therefore rightly convicted of larceny in a building. Exceptions overruled. C. v. Smith, 111 Mass. 429, B. 703.

(Eng. C. C. R., 1792.) Received to Change. On trial on indictment for stealing a £25 bank-note from the dwelling-house of prosecutor, contrary to St. 12 Anne. c. 7, it appeared that prisoner had recently obtained lodgings at the house of prosecutor, representing that he was a major or colonel and well acquainted with her family, particularly her brother in the army at Gibralter; that when the overseer of the parish called for certain taxes, she handed him the

bank-note in question, which he was not able to change; and so prosecutor sent it by the servant to defendant for change; who looked into his purse, and said he had not the change, but would get it; whereon he left the house with the note in his hand and did not return. The jury found the prisoner guilty, and the case was reserved for the opinion of the judges, who held that it was not a capital offense within 12 Anne, c. 7. The prisoner was transported for seven years. R. v. Campbell, 2 Leach C. C. No. 240, C. 387.

(Mass. Sup. Judicial Ct., 1880.) Watch Handed to Customer. AMES, J. In an indictment founded upon the Gen. Sts. c. 161, § 15, for larceny in a building, it is not enough to prove that the property stolen was in a building at the time of the theft, and that the defendand was the thief. It is necessary to show also that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building. The watches in this case were a part of the owner's stock in trade, usually kept by him in the building. But his testimony, which was the only evidence to the point, is to the effect that he was in charge of the property, when the defendant came in and asked to look at some watches, and that he handed the watches to the defendant; that he was not sure whether the defendant held the watches in his hand, or whether they were lying on the show-case; and that they were stolen while he turned partially round to place. something upon the shelf behind him. If they were upon the showcase when stolen, it would be at least doubtful whether they must not, under the circumstances, be considered as rather in the possession of the owner than under the protection of the building. If by the act of the owner they were in the hands of the defendant, they certainly derived no protection from the building. As the evidence left it wholly uncertain whether they were on the showcase or in the defendant's own hands, it did not warrant a conviction of larceny in a building; and the jury should have been so instructed. R. v. Campbell, 2 Leach No. 240 [above]; R. v. Castledine, 2 East P. C. 645; R. v. Watson, 2 East P. C. 680, 2 Leach 730 (Ed. 3) Case 262; R. v. Hamilton, 8 Car. & P. 49, 50, note; C. v. Smith, 111 Mass. 429 [above]. Exceptions sustained. C. v. Lester, 129 Mass. 101, B. 705.

(Ga. Sup. Ct., 1874.) A Bail of Cotton was Stolen from an Alley by a Warehouse, and on indictment for "larceny from the house" the court instructed the jury that "if they found from the evidence that the bail of cotton was in front of the warehouse and under its control and protection, it would be the same criminally as if within its walls." This was held error. Reversed. Middleton v. S., 53 Ga. 248, 5. L. 519.

(Tex. Sup. Ct., 1874.) Goods on Front of Store.

REEVES, A. J.

[ocr errors]

* * *

*

*

The only question in this case is presented in the brief for the state: "Is an indictment for theft from the house, sustained by proof that the stolen property was taken while hanging at the outside of the store door on a piece of wood nailed to the door, facing and projecting towards the street?" The idea of regarding the house as a place of security for the occupants, and a place of deposit for his goods, underlies all these statutes. The article under which the defendant was indicted is as follows: "If any person shall steal property from a house in such manner as that the offense does not come within the definition of burglary, he shall be punished by confinement in the penitentiary not less than two nor more than seven years.' Pas. Dig. Art. 2408. We are of opinion that the goods were not under the protection of the house, so as to make the taking theft from a house in the meaning of the statute, and that the defendant was only liable to the punishment prescribed for simple theft. The goods were not deposited in the house for safe custody, but the witness says they were hanging out to attract customers or purchasers. The statutes of the states cited in the brief of counsel, in general, punish theft in a house, while other statutes referred to punish theft from a house, as does our code, and they seem to use these terms as meaning the same thing. A different rule would not admit of any definite application. Reversed. Martinez v. S., 41 Tex. 126, 5 L. 517.

*

(Mich. Sup. Ct., 1888.) Lodgings.

CAMPBELL, J.

*

Respond

ent was convicted of stealing from a dwelling-house in the daytime. The only question raised is whether the building from which the theft took place was a dwelling. Mr. Tape, whose money was stolen, had a furnished room in the basement of a building, the upper part of which was in the daytime used by him and others as medical and other offices. At night he was the only occupant. He slept in the basement room, and had no other abiding place. Unless it is impossible for a single man to have a dwelling, we see no reason for holding that this room was not Mr. Tape's dwelling. It was to all intents and purposes his home. It was precisely in its circumstances, like chambers in the inns of court, which have always been so treated. Affirmed. P. v. Horrigan, 68 Mich. 491, 36 N. W. 236.

(Mo. Sup. Ct., 1886.) Cellar. Under Mo. R. S. 1879, § 1309, which prescribes a penalty for larceny committed in a dwelling-house, an under ground cellar, used for storing ice and beer, having no internal door of communication with the living-rooms in the upper stories of the same building, and not under the control and dominion of any occupant of the building, is not a "dwelling-house." S. v. Clark, 89 Mo. 423, 1 S. W. 332.

(Mo. Sup. Ct., 1888.) Hotel Office. It appeared that defendant stole certain goods from the office of an hotel kept by one O.; that

the hotel was owned by, and the license to keep the same issued to, one D. Held, larceny from the dwelling-house of O. whether he paid rent or held by sufferance. S. v. Leedy, 95 Mo. 76, 8 S. W. 245.

(Ala. Sup. Ct., 1890.) A Trunk Near the Door of a baggage-room on a platform, covered by the same roof, but not inclosed, which is used as a common passage-way by all going about the depot, is not in a warehouse within Code Ala. 1886, § 3789, punishing larceny therefrom. Lynch v. S., 88 Ala. 18, 7 So. 829.

EMBEZZLEMENT.

$152. In General.

Statute, 39 Geo. III. (1799), c. 85. Whereas, bankers, merchants, and others, are, in the course of their dealings and transactions, frequently obliged to entrust their servants, clerks, and persons employed by them in the like capacity, with receiving, paying, negociating, enchanging or transferring, money, goods, bonds, bills, notes, bankers' drafts, and other valuable effects, and securities; and, whereas, doubts have been entertained whether the embezzling of the same by such servants, clerks, and others, so employed by their masters, amounts to felony by the law of England, and it is expedient that such offenses should be punished in the same manner in both parts of the united kingdom; be it enacted and declared by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, That if any servant or clerk, or any person employed for the purpose in the capacity of a servant or clerk, to any person or persons whomsoever, or to any body corporate or politic, shall, by virtue of such employment, receive or take into his possession any money, goods, bond, bill, note, banker's draft, or other valuable security, or effects, for or in the name or on the account of his master or masters, or employer or employers, and shall fraudulently embezzle, secrete, or make away with the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or masters, employer or employers, for whose use or in whose name or names, or on whose account the same was or were delivered to, or taken into the possession of such servant, clerk, or other person so employed, although such money, goods, bond, bill, note, banker's draft, or other valuable security was or were no otherwise received into the possession of his or their servant, clerk or person so employed; and every such offender, his adviser, procurer, aider, or abettor, being thereof lawfully convicted or attainted, shall be liable to be transported to such parts beyond the seas of his majesty, by and with the advice of his privy council,

shall appoint, for any term not exceeding fourteen years, in the discretion of the court before whom such offender shall be convicted or adjudged.

For the dicisions which induced enactment of this and similar statutes, see § 130.

(Eng. C. C. R., 1809.) Money Supplied to Detect Thief. The prisoner was indicted and convicted of embezzling 3s., received on account of his masters. It appeared in evidence that they supplied the money marked, to a neighbor, who bought articles at the shop with it, and defendant embezzled it. For the prisoner it was urged that the money was constructively in the possession of the masters, who parted with custody only; wherefore the prisoner might have been convicted at common law for larceny. The judge, thinking the point worth considering, reserved it for the opinion of the judges. They held the conviction right, on the authority of Bull's Case, in which the judges had held a common law indictment not supported by similar facts. It seemed to be the opinion of the judges that the statute did not apply to cases which are larceny at common law. R. v. Headge, Russell & R. 160, 2 Leach C. C. (Ed. 4) 1033, B. 706, C. 401.

(Eng. C. C. R., 1826.) Taking Bill to Change. On indictment of two counts for common law larceny: 1, of a £5 note; 2, of silver coins; property of T. & G. Nevill: it appeared that the defendant being in the employ of T. & G. Nevill, said T. gave him a £5 note to get change; that he got the change, saying to the person who gave it that it was for said T. & G.; and that he did not return with it. The jury found him guilty on the second count and not guilty on the first. On case reserved, as to whether the indictment should not have been for embezzlement under 39 Geo. 3, c. 85; the judges held the conviction wrong, because the masters never had possession of the change, except by the hands of the prisoner. R. v. Sullens, 1 Moody 129, Car. C. L. 319, C. 395, Ke. 320, Mi. 688.

(Eng. C. C. R., 1830.) Money Received from Another Servant to Pay Out. On indictment for embezzlement from A, under St. 7 Geo. IV., c. 29, § 47, it appeared that the prisoner was in the employ of A, and received from another servant of A £3 of A's money to pay (among other things) for inserting an advertisement in the Gazette; and that he paid 10s. for the insertion, charged A 20s. for it, and fraudulently kept the difference for his own use. After conviction on this proof, the court requested the opinion of the judges, as to whether the facts sustained the indictment. All the judges met and considered the case; and they thought the conviction wrong, because A had possession by the hand of his other clerk, and so the case was not within the statute. R. v. Murray, 1 Moody 276, 5 Car. & P. 145, C. 310, Ke. 318.

(Eng. C. C. R., 1848.) Money Received from Another Servant to

« ForrigeFortsett »