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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had been in jail during part of the year, the aggravaTime in prison tion was withdrawn (3).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 dur
ing 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). Time between 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
apprehension and trial not reckoned.
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.
commitment for trial (1). The report bears that the GENERAL
1 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 conclusion 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, notwithstanding the deduction of fifteen months, to be sufficient, 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).
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 wbile on duty is an aggravated offence (5). It was formerly not Theft by appren
1 James Pringle and Helen Scott, case, and to the supposition that Jedburgh, Sept. 11th 1838; 2 Swin. Lord Moncrieff held it competent 192 and Bell's Notes 30.
to include the period of imprison2 The case alluded to by the ment in estimating the habit and Advocate-depute was that of James repute :
:- “Neither I nor Lord Wilson and John Maddon, April “ Mackenzie, nor Medwyn, nor 23 1838; 2 Swin. 107 and Bell's “ Wood, enter into this notion, Notes 28, the report of which does “ neither do I understand that not by any means bear out the “ Lord Moncrieff now holds it." theory contended for.
5 Rob. Ferrie and Will. Banks, 3 Bell's Notes 30.
March 29th 1831; Bell's Notes 4 The following occurs in the 34. — Arch. M'Callum, Inverary, Lord Justice-Clerk Hope's MS. Sept. 1846 (Indictment); Adv. Notes to Hume, referring to this Lib. Coll.
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. Plagium.
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.
By statute (5), stealing or assisting, or maliciously bleach-fields.
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 aggraRepeated theft. vation 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 4 Hume i. 88 to 92 passim.there.-Walter Turnbull, Jedburgh, Alison i. 309 to 312 passim. April 1822 (Indictment); Adv. Lib. 8 Act 18 Geo. ii. c. 27, as amendColl.
ed by Act 51 Geo. iii. c. 41. 2 Will. Vance and others, 6. Hume i. 90, 91.--Alison i. 307, Glasgow, Jan. 1835 (Indictment); 308. Adv. Lib. Coll.
7 Hume i. 95, 96.- Alison i. 306, 3 Will. Findlater, Glasgow, April 307.-Ann Sutherland, July 13th 1835 (Indictment); Adv. Lib. Coll. 1832 ; Bell's Notes 32. Alex. and Lord Justice General Boyle's Gregor, Inverness, April 1832; Bell's MSS.
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).
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). The ordinary case of property being taken forcibly, or extorted by alarming menaces is termed robbery (6).
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.
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
22d 1829; Bell's Notes 45.-David
6 Hume i. 106, 107.
Sudden snatch not robbery, unless jury or force accompany it.
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 coer
cion 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 him
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).
It is not robbery if, by a single and sudden snatch 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).
It is not necessary that there should be any use of
Any struggle sufficient.
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.