GENERAL

AGGRAVATIONS. Period must be connected.

not reckoned.

of the repute "above a free year," was held sufficient (1). It must be a connected year, not a number of fragmentary periods, which together, amount to a year or more (2). Where habit and repute was sworn to for a full year, but the accused had been in jail during part of the year, the aggravaTime in prison tion was withdrawn (3). But, though the period during which the accused has been in prison is not allowed to be counted as part of the term necessary to establish habit and repute, this does not prevent the periods before and after the imprisonment from being added together. Thus, if a person be habit and repute a thief for four months, and then spend some time in prison, but on his release again have the character of habit and repute for nine months, the four months and the nine months are not held to be disjoined by But intervening the intervening imprisonment, as they would be by does not discon- an intervening course of honesty, but are sufficient together to constitute the aggravation (4).

imprisonment

nect.

Time between apprehension and trial not reckoned.

The principle that the time during which the accused has been imprisoned is not to be reckoned as forming part of the period necessary to fix the character of habit and repute, applies of course to the interval between the apprehension and the trial. Any other rule would enable the prosecutor to fix the repute upon a person, who had borne the character for too short a period, by keeping him in prison for a long time before bringing him to trial. One case is so reported as to seem to lead to a different result, both as regards a period of imprisonment under sentence, and the period of imprisonment under

1 Elizabeth Robertson or Stewart, Perth, April 30th 1844; Lord Cockburn's MSS.

2 Will. Brash and Rob. White, H.C., March 17th 1840; 2 Swin. 500.

3 Joseph M'Kean and others; Bell's Notes 30.

4 Will. Walkingshaw, H.C., May 17th 1844; 2 Broun 190.Henry Gillian, Nov. 5th 1839; Bell's Notes 31. In this case the accused, after acquiring the repute, was imprisoned, and within a week of his liberation committed the new offence.

AGGRAVATIONS

commitment for trial (1). The report bears that the GENERAL
Advocate-depute argued that the time between
apprehension and trial had in a previous case been
included; that imprisonment under conviction was a
much stronger case, and that the presiding judge
thought the aggravation sufficiently proved (2). But
the report is rather confused, narrating, as it appears
to do, that the accused's counsel maintained that
fifteen months being deducted from two years, left
thirteen months; and further, that thirteen months
was not sufficient to establish habit and repute. And
besides, as is pointed out by Bell in his, Notes (3),
there is nothing in the report to lead to the conclu-
sion that the judge, in holding the aggravation
established, included the period of imprisonment, for
there was one witness who swore to habit and repute
for two or three years, and the Judge may have held
the evidence of this witness as to the period, notwith-
standing the deduction of fifteen months, to be suffi-
cient, along with proof of previous convictions, to
establish the character, without taking into account at
all the evidence of the other witness, who spoke only
to two years, including the period of fifteen months of
imprisonment (4).

officer.

Theft may be aggravated by the thief being a Theft by police person whose duty it is to protect property. For example, a theft by a police-officer while on duty is an aggravated offence (5).

1 James Pringle and Helen Scott, Jedburgh, Sept. 11th 1838; 2 Swin. 192 and Bell's Notes 30.

2 The case alluded to by the Advocate-depute was that of James Wilson and John Maddon, April 23d 1838; 2 Swin. 107 and Bell's Notes 28, the report of which does not by any means bear out the theory contended for.

3 Bell's Notes 30.

4 The following occurs in the Lord Justice-Clerk Hope's MS. Notes to Hume, referring to this

It was formerly not Theft by appren

case, and to the supposition that
Lord Moncrieff held it competent
to include the period of imprison-
ment in estimating the habit and
repute :
"Neither I nor Lord
"Mackenzie, nor Medwyn, nor
"Wood, enter into this notion,
"neither do I understand that
"Lord Moncrieff now holds it."

5 Rob. Ferrie and Will. Banks, March 29th 1831; Bell's Notes 34. Arch. M'Callum, Inverary, Sept. 1846 (Indictment); Adv. Lib. Coll.

tice or carrier.

GENERAL

AGGRAVATIONS.

Plagium.

uncommon to charge such facts as that the thief was the apprentice (1) or servant (2) of the owner, or was a carrier to whom the goods had been given for conveyance (3); as specific aggravations of theft; but such aggravations have fallen into desuetude.

Theft is held to be aggravated in certain cases by the nature of the thing stolen. Plagium, or the theft of a child, is a highly aggravated species of theft. And thefts of horses, or cattle, or sheep, are Animal stealing also held to be aggravated (4). Indictments are to be found in which ass-stealing, goat-stealing, and swine-stealing are charged as aggravated offences.

Theft from bleach-fields.

Furtum grave.

Repeated theft.

PUNISHMENT.

By statute (5), stealing or assisting, or maliciously hiring or procuring another, to steal linen, fustian, or cotton goods "laid, placed, or exposed" for printing or bleaching purposes, in any building, ground, or place made use of by a manufacturer for such purposes, is a specially aggravated offence.

No absolute distinction is now taken between an ordinary theft and one of large amount, which formerly was held capital, as being a furtum grave (6). Nor is it customary now to charge as a specific aggravation that the accused had committed repeated acts of theft, though this was formerly common (7).

Theft is punished by imprisonment or penal servitude, according to circumstances. The old statutes, by which certain thefts are made punishable by death, are now ignored, and in the case of thefts from bleaching grounds, although they are declared aggra

1 Hume i. 68, case of Mathieson there. Walter Turnbull, Jedburgh, April 1822 (Indictment); Adv. Lib. Coll.

2 Will. Vance and others, Glasgow, Jan. 1835 (Indictment); Adv. Lib. Coll.

3 Will. Findlater, Glasgow, April 1835 (Indictment); Adv. Lib. Coll. and Lord Justice General Boyle's MSS.

4 Hume i. 88 to 92 passim.— Alison i. 309 to 312 passim.

5 Act 18 Geo. ii. c. 27, as amended by Act 51 Geo. iii. c. 41.

6 Hume i. 90, 91.-Alison i. 307, 308.

7 Hume i. 95, 96.- Alison i. 306, 307.-Ann Sutherland, July 13th 1832; Bell's Notes 32. - Alex. Gregor, Inverness, April 1832; Bell's Notes 32.

vated by statute, a discretionary power is given to reduce the punishment from penal servitude to imprisonment (1.) The punishment in cases of oyster and mussel stealing is limited to one year's imprisonment (2).

PUNISHMENT.

ROBBERY AND STOUTHRIEF.

TWEEN ROBBERY
AND STOUTHRIEF.

THE distinction between these crimes has never been DISTINCTION BE clearly defined (3). A distinguished judge stated, that "there was not perhaps any difference between "the offences of robbery and stouthrief" (4). They both imply the taking of property from another by violence. In modern practice the term stouthrief is. seldom employed, and is confined to cases where a house is attacked, and resistance quelled by violence actually inflicted, or reasonably dreaded by the inmates; and to cases of attacks by mobs or combinations of persons, in which property is masterfully carried off, and the lieges put in alarm (5). ordinary case of property being taken forcibly, or extorted by alarming menaces is termed robbery (6).

The

OFFENCE.

not be taken

It is not necessary that the property should be QUALITIES OF taken from the person. Stouthrief and robbery may Property need both be committed by taking from the possession of from person. another, as by carrying off sheep from a flock, or

1 Act 51 Geo. iii. c. 41, as amended by the Penal Servitude Acts, 20 and 21 Vict., c. 3, and 27 and 28 Vict., c. 47.

2 Acts 3 and 4 Vict., c. 74, 10 and

11 Vict., c. 92.

3 Hume i. 104.-Alison i. 227. 4 Lord Mackenzie, in the case of George Smith and others, Glasgow, May 3d 1848; Ark. 473.

5 Hume i. 109, 110.-John Craig and James Brown, Glasgow, Sept.

22d 1829; Bell's Notes 45.-David
Little, Glasgow, Jan. 1831; Bell's
Notes 45.-Thomas Kelly, Stirling,
April 18th 1837; Bell's Notes 44.
John Adamson and others, Nov.
26th 1838; Bell's Notes 45.-Mar-
tin Handley and others, Glasgow,
Dec. 30th 1842; 1 Broun 508.-
Thomas M'Gavin and others, Stir-
ling, April 25th 1844; 2 Broun
145.

6 Hume i. 106, 107.

QUALITIES OF

OFFENCE.

reasonable fear enough.

goods from a ship or house by force (1). Nor need the violence be actually applied to the person. Violence causing Violent conduct, producing reasonable fear of coercion or bodily injury, are sufficient to constitute the offence, where the owner submits to having his property taken from him, or delivers it up to save himself (2). And in estimating the reasonableness of the fear, the whole conduct of the assailant, and the age and sex of the person assailed, are considered (3).

Sudden snatch

not robbery,

force accompany

it.

It is not robbery if, by a single and sudden snatch unless injury or or pull, anything be carried off (4), unless injury be done to the person, as in the case of an earring torn from the ear. But it is robbery if the pull be accompanied by such acts as a blow, or pinning the arms to the sides (5), or throwing to the ground (6). Any holding of the owner (7), or anything approaching to a struggle between him and the delinquent, is suffiProperty falling cient to constitute robbery. Nor does it alter the offence that the thing taken fell from the owner during the scuffle, or was thrown away by him, and was picked up by the assailant (8).

Any struggle sufficient.

in

picked up.

It is not necessary that there should be any use of

1 Hume i. 106.-Alison i. 230, 231, and cases of M'Millan and Gordon and Little and others there.

2 Hume i. 105.-Alison i. 228.More ii. 384.

3 Hume i. 105 to 107.-Alison i. 228, 229, 230.

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

5 Alexander Smith, March 11th 1833; Bell's Notes 43.

6 James Fegen alias Brannan, H.C., Jan. 29th 1838; 2 Swin. 25 and Bell's Notes 43.-Will. Adams or Reid, Nov. 30th 1829; Bell's Notes 43.

7 Helen Melville and others, June 25th 1832; Bell's Notes 43. -John Givan and Alex. Givan,

H.C., Feb. 9th 1846; Ark. 9. In this decision the statement of the case of Alexander Smith, Glasgow, spring, 1828; Alison i. 237, is declared to be inaccurate. In Lord Justice - Clerk Hope's MSS. the following occurs in reference to the case of Smith:-"No doubt "that such facts make a robbery." The case of Neil M'Gillivray and Thomas M'Millan, Glasgow, April 1841; Bell's Notes 22, where the injured party was caught round the body, and his watch carried off, the chain being broken, and where the charge of robbery was departed from, is marked by the Lord Justice-Clerk Hope in his MSS., "doubtful."

8 Hume i. 105.-Alison i. 234.