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TUTES THEFT.

bodies not theft.

interred body

paying the debt is theft (1). Stealing from the mail WHAT CONSTIwas held theft before the passing of the Post-Office Theft from mail. Acts (2). It is not theft to carry off dead bodies Removing dead from graves (3). But it is theft to take a dead body But theft if unnot yet buried from those who have the custody of taken. it (4). The only case in which carrying off a human being is theft, is that of children under puberty (5). This offence is called Plagium. It is theft whether Plagium. the child be enticed away, or carried off by force, or whatever be the mode adopted, and be the motive of the deed what it may (6).

TWEEN THEFT

force not rob

Before describing the modes of committing theft, it DISTINCTION REmay be mentioned that taking property, if accom- AND ROBBERY,&C. panied by violence, may be robbery and not theft. But though force is employed, the crime may still Every show of be only theft (7). If the only force used be a knock bery. on the hand so that money falls from it (8), or a sudden snatch or pull (9), the case is one of theft, though the owner be jostled (10), or catch the thief's hand for a moment, or the snatch break the article, as in the case of a watch-guard (11). Nor is it robbery if the thief having stealthily, or by a snatch, got pos

1 Henderson v. Young, Dumfries, April 19ih 1856; 2 Irv. 414.

2 Hume i. 80, 81, and cases of Seton and Jamieson there, and cases of Clark and Brown: Oliver: and Warden in note 2.-Alison i. 279.

3 See Violating Sepulchres. 4 Hume i. 85, case of Mackenzie in note 1.-Alison i. 281, 282.

5 Mary Miller or Oates, H.C., July 22d 1861; 4 Irv. 74 and 33 S. J. 705.

6 Hume i. 84, and cases of Irvine and Waldie and Torrence there, and cases of Wright: Douglas: and Mill in note 2.-Alison i. 280, 281. -Helen Wade, Glasgow, Oct. 2d 1844; 2 Broun 288.

7 Hume i. 77.--Alison i. 236, 237, and case of Highlands there,-i.264.

8 Rob. Edmonston and Jas. Brown, March 13th 1834; Bell's Notes 22.

9 Walter Monro, Dec. 22d 1828; Bell's Notes 21.-John Millar, Glasgow, Sept. 25th 1829; Bell's Notes 21.-Ann Watt or Ketchin, Feb. 24th 1834; Bell's Notes 21. This last case came undoubtedly very near robbery. In the Lord Justice Clerk Hope's MSS. there is marked opposite it the word "robbery."

10 Will. Duggin and John
Ketchen, Dec. 1st 1828; Bell's
Notes 21.

11 Mary Robertson, Glasgow,
Sept. 1837; Bell's Notes 21.-Will.
Cummings, Aberdeen, April 1830;
Bell's Notes 21.-Jane Paterson,
May 8th 1838; Bell's Notes 22.

MODES OF THEFT,

THEFT BY TAKING
FROM CUSTODY OF
ANOTHER.

Amotio.

DISTINCTION BE- session of an article, violently resists the owner's efforts AND ROBBERY,&c. to recover it (1). The cases of violence which consti

tute robbery, or stouthrief, will be noticed later.

The modes in which Theft may be committed fall under two heads--1. Theft from another's custody; and, II. Theft where the delinquent appropriates property of which he has the custody.

To constitute theft by taking a thing not in the custody of the thief, it must be removed from where it is. It is not theft if cattle be killed in the owner's pen out of spite, or if a mob destroy property (2). And movement is not enough; there must be actual removal. It is not theft if the delinquent's hand be caught in the pocket and held there (3), or if a snatch or ineffectual pull be made at a watch-chain, or if the owner seize his watch before it has been

drawn from his pocket and retain his hold (4). But Momentary re- if it has been entirely removed from the pocket, even

for a moment, the theft is complete, though the owner at once recover it (5), or the thief give it up, or let it

fall, or throw it down (6). Detachment from the Detachment from person is not necessary.

If a thief has drawn a watch necessary. out of the owner's pocket, and got it into his hand,

the theft is complete though it be still connected with the owner's person by a guard-chain (7).

moval sufficient,

owner not

1 Daniel or Donald Stuart, March 13th 1829 ; Bell's Notes 42.-Thos. Innes and Ann Blair, Dec. 8th 1834; Bell's Notes 42.- Joan Reid and Helen Barnet, H C., Feb. 19th 1844 ; 2 Broun 116.

2 Hume i. 75.-Alison i. 273. (Vide Malicious Mischief.)

3 Hume i. 70.-Alison i. 265, 266.

4 Will. Cameron, Glasgow, Dec. 22d 1851 ; J. Shaw 526 and 24 S. J. 140.

5 Will. Lyndsay, March 2d 1829; Bell's Notes 19.

6 Hume i. 70, 71.-Alison i. 266. A case of this sort occurs in Lord

Cockburn's MSS. (Jas. Macdougal, Glasgow, Sept. 20th 1843). The accused was taking a handkerchief from a gentleman's pocket, when the gentleman instantly turned round and seized him, the handkerchief falling to the ground.

7 See Will. Cameron, Glasgow, Dec. 22d 1851 ; J. Shaw 526 and 24 S. J. 140, where the watch was not detached from the chain, nor the chain from the owner, and where the question was left to the Jury whether “the watch was removed by the panel from the pocket, or had he it in his hand for any period

THEFT BY TAKING

Again, in cases of taking the property from a house, FROM CUSTODY OF or field, or cart, the property must have been removed Theft from a

ANOTHER.

Removal

from where it was to a different place. It is not place. sufficient that a package, lying in a waggon, be turned essential. up on end (1), although it would be theft if it were moved from one end of the waggon to the other, or from the boot of a coach, though it had not been completely taken out at the top (2). Where cheeses were placed one above another, it was held not sufficient that one was moved half of the one below it, this not implying that it had been laid hold of, and as it might have been displaced when the delinquent was skulking to avoid detection, and further, as it was not possible to be certain that it had previously been exactly above the other (3). So also it is not sufficient if the clothes of a bed have been rolled to the bottom of it, or a shirt in a drawer rolled up for the purpose of being lifted (4). But the instant the thing Removal, howis truly moved away, the theft is complete (5). If a sufficient. the same case, the following note occurs in the Lord Justice Clerk Hope's MS. Notes to Hume :"Panel pulled watch out of pocket by chain, owner caught him, and before guard was broken or taken off. Lord Justice Clerk, with full assent of Wood, laid it down as in law theft."

ever slight,

1 Hume i. 70; and case of
M'Ewen in note 2.-Alison i. 266.
2 These cases have occurred in
England. See Russell, 4th Ed. ii.
153.

3 Jas. Hoyes, H.C., Dec. 11th
1848; J. Shaw 134. - See also
Hume i. 72, case of Macqueen and
Baillie in note 3.-Will. Harvey,
7th Nov. 1833; Bell's Notes 19.

4 Hume i. 70, case of M'Ewen in note 2.-Alison i. 269, and case of Boyle there.

5 John M. Carter, 1832; Bell's Notes 19.-Rob. Philips and David Simpson, Nov. 8th 1832; Bell's

however short?"-See also the case of Jas. Purves and Geo. Mackintosh, H.C., Nov. 9th 1846; Ark. 178 (a case of robbery, but the principle is the same). In the case of James Conolly, Ayr, Oct. 9th 1849 Lord Justice Clerk Hope's MSS. and Lord Wood's MSS., the evidence was, that the accused had drawn the watch out of the pocket along with a chain and seals, but that it remained attached to the owner's person by a separate guardchain. In the Lord Justice Clerk's MSS. the following note occurs :"Court held it to be theft when pulled out of the pocket, though man caught and guard not broken, but left it to Jury to say whether fact that he had it in his hand out of the pocket was fully proved." Lord Wood's MSS. contain this note:-"It is not the less theft that it had the separate protection of guard-chain." In reference to

OF

ANOTHER.

а

by hook or stick.

severed, any

THEFT BY TAKING horse be taken from a stable, or cattle or sheep from

a pen or field, or if a sheep or a fowl be lifted (1); or if things be taken from a drawer or shelf, or bed,

even though they be placed on the floor and left, the Articles moved theft is complete (2). Nay, it is sufficient if the thief

put his hand in at a window, and with his fingers or a stick draw articles towards him (3). In certain

cases very slight removal may be sufficient, as where Where fastening a fastening securing an article is cut or broken, the movement sufil- thief being held to have taken possession by destroying

the security afforded by the fastening, so that any movement completes the theft. If a chest screwed to the floor be unfastened, and moved ever so little, the theft is complete (4). Or, referring again to the case of a package in a waggon : it cannot be doubted that, if the package be fastened down by cords, and the cords be cut, and the package then raised on end, the theft would be complete. Thus, where thieves cut luggage from a carriage, so that it fell to the ground, and were scared before they could again lay hands on

it, the theft was held accomplished (5). Removal of Again, the removal of a box or drawer completes

the theft of its contents. If the till of a shop be

taken out of the counter, the theft of the contents as well No defence that as of the till is complete (6). Nor is it any

defence things displaced

that articles removed were not intended to be taken, but were only displaced in a search for other things. If thieves take out the contents of a drawer, they are

article constitutes theft of its contents.

in search for
other booty.

Notes 19.-— Will. S. M'Caughie,
Dumfries, April 29th 1836 ; 1 Swin.
205.

1 Hume i. 70, 71, and cases of
Smith and Forrester: Riccards :
Baillie : Gordon: and Anderson and
Lindsay there.- Alison i. 266, 267.

2 Hume i. 71, 72, and case
of Snaile there, and case of Welsh
in note 2, and case of Macqueen
and Baillie in note 3.-Alison i.
267, 268.-John Paterson and Alex.

Glasgow, H.C., March 15th 1827 ;
Syme 174. (Lord Justice Clerk
Boyle's charge.)

3 Cornelius O'Neil, H.C., March 10th 1845 ; 2 Broup 394.

4 Hume i. 73.- Alison i. 267.

6 Hume i. 72, case of Pray or Perry and others in note 2.

6 James Smart, July 13th 1837 ; Bell's Notes 19.-See also David Walker, Stirling, Sept. 3d 1836 ; 1 Swin. 294 and Bell's Notes 209.

FROM CUSTODY OF
ANOTHER.

in same tene

guilty of stealing them, though they may not be worth TEGET BI TAKING carrying away (1).

Theft by taking from the custody of another may be aggravated in various ways, as regards the mode. One of the highest aggravations is that of housebreak-HOUSEBREAKING. ing

“ House” includes a roofed building of any kind (2), so fastened as to indicate that the owner places reliance on its strength to protect property (3). Breaking into an unfinished house even, if it be pro- Unfinished house perly secured, is housebreaking (4). Where there are separate houses different occupants in the same tenement, having ment. separate entrances, though each family occupy but one room, housebreaking is committed if any of the rooms be violated, each being a house in itself (5). But a thief already within a house does not commit housebreaking if he break an inner fastening of the house, such as the door of a storeroom occupied by another (6). Entrance of a house is necessary to constitute the aggravation.

Injury to the building is not essential to constitute Injury to buildhousebreaking, but only violation of the security (7), kry. whether this be done by force, or by opening secured Opening locks.

ing not neces

1 John Ash and Daniel Cairns, H.C., May 19th 1848; Ark. 493.

2 The term shopbreaking was formerly used in some cases (Hume i. 104), but the term housebreaking is properly applied in every case where a building is broken into. In the case of David Millar and John Macdonald, Glasgow, Jan. 4th 1831, tried before Lord Moncrieff, the charge was “theft by housebreaking,' and the facts were that the accused had broken into a church, and stolen bibles from the pews; (Lord Moncrieff's MSS.), and a similar act was libelled in the same way in the case of James Stewart, Glasgow, April 1841 ; Indictment and Lord Justice General Boyle's MSS.

3 Hume i. 103.--Alison i. 291, 292.-John Fraser, June 20th 1831; Bell's Notes 41.-James Easton and others, July 2nd 1832; Bell's Notes 41. In these cases a hen house and a cellar were broken into.

4 Hume i. 103, and case of Thompson there. – John Wright and David Johnstone, July 3d 1837; Bell's Notes 41.-See also John Boax, H.C., Nov. 7th 1827 ; Syme 248 (Indictment), where the charge was for breaking into an unfinished addition to the house.

6 Alison i. 293, and case of Cowie
there. Christian Duncan, Aber.
deen, April 24th 1849 ; J. Shaw 225.

6 Hume i. 101.-Alison i. 287.
7 Hume i. 98.

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