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ing his property in them, such person will be guilty of larceny in taking them.

(2) There must be actual carrying away, but the slightest removal, if the goods are completely in the power of the thief, is sufficient.

(3) The property taken must be personal property; a man cannot commit a larceny of real estate, or of what is so considered in law.

Larceny cannot be committed of animals feræ naturæ, so long as they are not retained or confined.

(4) The intent of the party must be felonious, without any color of right or excuse for the act. If a party takes the goods of another under a claim of right, however unfounded, he has not committed larceny. If again a party takes the property of another with the intent of returning it ultimately, it is not larceny.

The possession of property, recently stolen, is prima facie evidence of guilt in the possessor of the property; but it may be satisfactorily accounted for.

In some of the States larceny is divided into grand and petit larceny, depending on the value of the property taken; but at the common law it is sufficient to constitute the offense if the thing stolen be of some value.1

Robbery is the felonious and forcible taking of the property of another from his person; or in his presence, against his will, by violence or putting him in fear.

(1) Some property must be taken, and the prisoner must have had possession. The value of the property, or the length of possession, is immaterial.

(2) The taking must be from the person, or in his presence. If a person by intimidation is compelled to open his desk, or to throw down his purse, and the money is taken in his presence, this is robbery."

1 Bouvier's Law Dictionary; Wharton, SS 1751-1869.

2 U. S. vs. Jones, 3 Wash. C. C. Rep. 209.

(3) The taking must be felonious, and against the will of the party.

If a person takes goods under a bona fide claim, without the animus furandi, this is not robbery.

(4) The taking must be by violence or by putting the party in fear. Either is sufficient. As to the degree of violence, it is held that the sudden taking of a thing unawares from the person, as by snatching a thing from his hand, is not sufficient to constitute robbery, unless some injury be done to the person or there be some previous struggling for the possession of the property.

The fear mentioned may be a fear either to his person, his property, or his reputation.1

To secure money, by threatening to charge the party with an unnatural crime, has in several cases been held to be robbery; but this seems to be the only case of fear of reputation sufficient to constitute robbery.

It seems to be immaterial what means are used to induce fear, provided fear was actually created in the mind of the party, and he parted with his property under this fear. This is a question for the court.

This offense differs from larceny from the person in this, that in the latter there is no violence, while in the former the crime is incomplete without an actual or constructive force.

Burglary is the breaking and entering the dwellinghouse of another in the night, with intent to commit some felony within the same, whether the felonious intent be executed or not.2

To constitute this offense it is necessary:

(1) That there be a breaking and entering. If one enter into a house by a door which he finds open, or through a hole which was made there before, and steals Wharton, § 1531.

1 Roscoe, §§ 898-900.

goods, etc., or draws anything out of a house through a door or window which was open before, or enter into a house through a door open in the day time, and lie there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary.1

The slightest breaking however seems sufficient. The lifting a latch, the removing a bolt, the breaking a glass window, the turning a key, whether on the outside of the house, or when within the house, is a breaking as understood in burglary.

The breaking may be actual or constructive. Where one obtains entrance into a dwelling-house by fraud, conspiracy, or threats, in the night time, with a felonious intent, this is constructive breaking, and will constitute burglary.

There must also be an entry, but it is not absolutely necessary that the offender's body enter the house. If a man break a window and introduce any instrument for the purpose of committing a felony, this is burglary, but if the instrument is used merely for the purpose of effecting an entry, it would not be.

(2) That the building entered be a dwelling-house. The term dwelling-house seems to comprehend any building in which the occupier and his family usually reside, or in other words dwell and lie in. Where no person sleeps in the house it cannot be considered a dwelling-house.

2

To make it burglary it is not absolutely necessary that any person should be actually within the house at the time of the offense. If the owner leaves it, animo revertendi, it is still his dwelling-house. Burglary may be committed in an out-house, if it is so near the dwelling-house that it is used with the dwelling-house as appurtenant to it, though not within the same inclosure."

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(3) That the breaking be in the night. For this pur pose it is deemed night when by the light of the sun a person cannot clearly discern the face or countenance of another. The breaking and entering must both be in the night, but it is not necessary that both be done the same night.

(4) That the intent of breaking and entering must be felonious: If a felony however be committed, the act will be prima facie evidence of an intent to commit it.2

On a charge of burglary the court might find the prisoner guilty of larceny only.3

Arson is the willful and malicious burning of the house of another by night or by day.

To constitute this offense it must be proved:

(1) That the offense was committed willfully and maliciously, otherwise, it is only a trespass, and not a felony.* (2) That there was a burning. The least burning is sufficient.

(3) That it was the house of another.

The term house includes all out-houses which are parcel thereof, though not adjoining thereto, nor under the same

roof.5

By the Revised Statutes of the United States it is declared arson to willfully and maliciously burn any dwelling-house, or mansion house, or any store, barn, or other building, parcel of any dwelling or mansion house, when done within any fort, dock-yard, navy-yard, arsenal, armory or magazine, the site whereof is under the jurisdiction of the United States, or on the site of any light-house, or other needful building belonging to the United States, the site whereof is under their jurisdiction."

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It must also be the house of another. It is not arson to burn one's own house, but if a man set fire to his own house, maliciously intending thereby to burn the adjoining house, belonging to another, if the latter house is burned, it is felony; if not, it is a great misdemeanor.1

Mayhem is the act of unlawfully and violently depriving another of the use of such of his members as may render him less able, in fighting, either to defend himself or annoy his adversary. Therefore the cutting, or disabling, or weakening a man's hand or finger, or striking out his eye or fore-tooth, or depriving him of those parts, the loss of which abates his courage, are held to be mayhems. But cutting off the ear or nose, or the like, are not held to be mayhems at common law.*

By the Revised Statutes, however, every person who, within any of the places upon the land under the exclusive jurisdiction of the United States, or who upon the high seas in any vessel belonging to the United States, or to any citizen thereof, maliciously cuts off the ear, cuts out or disables the tongue, puts out an eye, slits the nose, cuts off the nose or lip, or cuts off or disables any limb or member of any person, with intent to maim or disfigure such person, shall be imprisoned, etc.

Homicide may be defined to be the destruction of life by one human being, either by himself, or by the act, procurement, or culpable omission of another.

Homicides, caused by another, are divided into three general classes, justifiable, excusable and felonious. Justifiable homicide is of three kinds :

(1) Where the proper officer executes a criminal in

strict conformity with his sentence.

(2) Where an officer of justice, in the legal exercise

11 Hale, P. C. 568.

2 4 Blackstone, 206.

§ 5348

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