Act of March 6, 1819-January 1, 1820. R. C. ch. 171. tiary-house, for a period not less than five nor more than ten years, under the same conditions as are hereinafter directed. 1796, c. 200; R. C. 1804, c. 41, ed. 1808. Act of February 6, 1819—January 1, 1820. R. C. ch. 160. 25. §7. All and every free person and persons, that shall, at any time, either in the night or the day, feloniously break any warehouse or storehouse,(ll) and shall take therefrom any money, (13) goods or chattels, wares or merchandizes, of the value of four dollars or more, although the owner of such goods, or any other person or persons, be or be not in such warehouse or storehouse, or shall aid, assist, counsel, hire or command any person or persons so to break and rob any such warehouse or storehouse, and either of the said offences shall actually be committed, such person or persons, being thereof lawfully convicted or attainted, shall be deemed guilty of felony, and shall be punished by confinement in the public jail and penitentiary-house, for a period not less than one(14) nor more than ten years. And if a slave or slaves do commit the said offence or offences, and shall be thereof convicted or attainted, such slave or slaves shall be deemed guilty of felony, and shall suffer death without benefit of clergy. 1730, c. 4, § 4, 12 Ann. c. 7; 4 Stat. Larg. 271; 1792, c. 109; 1799, c. 264, R. C.; 3 and 4 W. & M. c. 9. Act of March 6, 1819-January 1, 1820. R. C. ch. 171. 26. § 6. Every person convicted of simple larceny (a) to the value of four dollars and upwards, or as accessary thereto before the fact, shall restore the goods or chattels so stolen, to the right owner or owners thereof, or shall pay to him, her or them, the full value thereof, or so much thereof as shall not be restored; and, moreover, shall undergo a similar confinement, [see ante, No. 24,] for a period not less than one nor more than three years, under the same conditions as are hereinafter directed. C. 2, § 6, Nov'r Sess. 1796, c. 200, R. C.(1) (U) J. S. was indicted under this act; pleaded, not guilty-and the jury found him "guilty of grand larceny, and ascertained the term of his punishment to be seven years in the public jail and penitentiaryhouse." Prisoner moved to arrest the judgment, because of the variance of the verdict from the issue, and the offence charged in indictment, and of the term of punishment being greater than the law prescribes for the offence found. By the ct.: judgment ought not to be arrested, but the said verdict being insufficient and too uncertain to justify the rendition of any judgment thereon, it ought to be set aside, and a venire facias de novo awarded. The Com. v. Smith, gen'l ct., June T. 1823, 2 Virg. Cas. 327; see How ard's case, Fost. Cro. L. 77; Godfrey's case, 1 Leach. Cro. L. R. 287; Stone's case, 1 Leach. Cro. L. R. 334, and the statute of 7 and 8 Geo. IV. c. 29, § 15. case, (13) A bank note is within the meaning of the words "money, goods, &c." See Deane's 2 Leach. Cr. Cas. 693; 2 East. Cro. Law, 646; U. S. v. Moulton, 5 Mason's Rep. 537, 549, 551; and see note to Rutherford's case, 2 Virg. Cas. 141-2. (14) See post. same tit. No. 67, note (2.) (a) 4 C. C. L. 95, &c., with feloniously stealing, taking and carrying away the property of the said X. Y., and of the value of dollars, contrary, &c. If a person be indicted for grand larceny, and the jury convict him of petit larceny, without ascertaining the value of the goods stolen, the verdict is sufficient. Richard Poindexter's case, 6 Rand. 667. A person employed by a mercantile firm as a salesman in their store, having full control over the goods in the store room and the money in the till, for the purpose of his employment, abstracts a part of the goods and money, with a fraudulent intent to convert the same to his own use: Held, guilty of larceny. James Walker's case, 8 Leigh, 743. (1) "If any free white person, after the first day of May next, shall be guilty of simple larceny of goods or chattels to the value of ten dollars or upwards, and shall be thereof duly convicted, he shall in all respects be subject to the same sentence and punishment as is now prescribed by law for white persons guilty of simple larceny of goods of the value of four dollars and upwards; and if after the said first day of May 1204 ask of 104,3 Act of March 6, 1819—January 1, 1820. R. C. ch. 171. 27. 7. If any person shall feloniously take, steal and carry away any goods or chattels under the value of four dollars, he, she, or they, being thereof legally convicted, shall be deemed guilty of petit larceny, and shall restore the goods and chattels so stolen, or pay the full value thereof to the owner or owners thereof, and be further sentenced to be punished by stripes, on his or her bare back, not less than ten nor more than forty, for any one offence, or by confinement in the jail and penitentiary-house, for a term not less than six nor more' than eighteen months, at the discretion of the jury by whom such person shall be tried. If any person having been punished by stripes, for such offence,' shall be convicted of a like offence a second time he or she shall be sentenced to undergo a confinement in the jail and penitentiary-house, for a term not less than five nor more than ten years. C. 2, § 7, Nov'r Sess. 1796, c. 200, R. C.; 1804, c. 41, ed. 1808. See post. No. 67.(1) Act of October 22, 1792. R. C. ch. 155. 28. § 1. If any felon or felons do rob or take away any money, goods or chattels, from any person within this commonwealth, whether from their person or otherwise, and thereof the said felon or felons be afterwards convicted or attainted, the party so robbed, shall be restored to his said money, goods or chattels; and the court before whom such felon shall be convicted or attainted, shall have power to award, from time to time, writs of restitution accordingly. 21 Hen. 8, c. 11; Oct. 1785, c. 71, 12 Stat. Larg. 170.(m) See 7 and 8 Geo. 4, c. 29, § 57. any free white person shall feloniously take, steal and carry away any goods or chattels under the value of ten dollars, he or she shall be deemed guilty of petit larceny, and shall be in all respects subject to the same proceedings, trial, conviction, sentence and punishment, as are now prescribed by law for free white persons guilty of petit larceny." Act March 9th, 1824, ch. 10, § 11, Sess. Acts 1823-4, p. 17; Sup. R. C. p. 295, § 11; post. No. 67. For the punishment of free negroes and mulattoes, note (1,) see Allen v. Com. 2 Leigh, 727. By the act of April 8, 1831, Sup. c. 224, p. 278; Sess. Acts 1830-31, ch. 38, p. 106, it is provided that petit larceny may be tried in the court of the county or corporation in which the offence was committed. The mode of trial is prescribed. Jurisdiction is given the superior courts of law in the trial of free persons for petit larceny; and power is vested in any judge of the general court, in term or in vacation, to award a writ of error in any case whatever wherein final judgment shall have been pronounced by any county or corporation court convicting any free person of the said crime. (1) See preceding note. (m) See Kelyng's R. 47; Golightly v. Reynolds, Lofft. 88; 4 Black. Com. 362; 1 Chitty's Crim. Law, 817; 1 Hale, 541; 2 Hawk. c. 23, § 55, p. 250; East. P. C. 787. In Golightly v. Reynolds, (12 Geo. 3, 1772,) Ld. Mansfield said, "I don't believe there has been a writ of restitution these two hundred years." If the goods are produced at the trial the court will order them to be restored to the own and if not restored the owner may after prosecution recover them from the person who converts them, by an action of trover. See the case (m). A prisoner had been convicted of stealing money. It appeared that he had left a horse in the care of another, which it appeared from the evidence in the case he must have purchased with the stolen money. Held, by baron Gurney, Williams, J., and the common sergeant Mirehouse, that the court who tried him might make an order for the delivery of the horse to the prosecutor. Rex v. Powell, 7 Car. & Payne, 640, C. C. 1836. And on a conviction of larceny of money, the court cannot enter judgment against the prisoner for the amount, nor award execu tion in favour of the person from whom it was stolen. T. R. Henley's case, 1 Virg. Cas. 145. [See Grimson v. Woodfull, 2 Carr. & Payne's Reps. 41; and the remarks of Green, J. in Allison et al. v. The Farmers Bank, 6 Rand. 223, 226, Mar. T. 1828.] The learned judge says, "there is not a single adjudged case reported to this day in which a civil action founded on a wrong, amounting to a felony, has been adjudged not to lie; that he is persuaded that the object of promoting the prosecution of crimes would be more promoted by allowing the injured individual to prosecute his civil action uninterruptedly," &c. But see the opinion of C. J. Best, in Grimson v. Woodfull, in which it was decided that if a party has good reason to believe that his goods have been stolen, he cannot maintain trover against the person who bought them of the supposed thief without he has done every thing in his power to bring the thief to justice. Act of March 2, 1819-January 1, 1820. R. C. ch. 111. 29. § 28. If any person shall hereafter be guilty of stealing or selling any free person for a slave, (2) knowing the said person so sold to be free, and thereof shall be lawfully convicted, the persons so convicted shall undergo a confinement in the public jail and penitentiary-house for a term not less than onet nor more than ten years. January 7, 1788, 12 Stat. Larg. 531; 1787, c. 37; 1792, c. 103, R. C. 30. § 29. If any person or persons shall hereafter be guilty of stealing any negro or mulatto slave whatsoever, and be thereof lawfully convicted, whether the said slave or slaves so stolen shall have been taken out of or from the actual or immediate possession of the owner(n) or overseer of such slave or slaves, or shall have been elsewhere found,(o) he or they shall be adjudged guilty of felony, and shall undergo a confinement in the penitentiary for a period not less than three nor more than eight years. May 1732, c. 6, 4 Stat. Larg. 324; 1753, c. 7, § 28, 6 Stat. Larg. 369; 1792, c. 103, R. C.; am. by act Jan. 25, 1799, c. 244, R. C. 31. § 30. Whosoever shall hereafter carry, or cause to be carried, any slave or slaves out of this commonwealth, or who shall carry, or cause to be carried, any slave or slaves out of any county or corporation within this commonwealth, into any other county or corporation within the same, without the consent(4) of the owner or owners of such slave or slaves, or of the guardian of such owner or owners, if he, she or they be a minor or minors, and with intention to de (2) The sale of a free negro, by his own consent, as a slave, under a collusive contract between the seller and the free negro sold, that the proceeds of sale were to be divided between them, is not such a sale of a free negro for a slave as is made felony by this act. Mercer v. The Com. gen'l ct. Nov. T. 1818, 2 Virg. Cas. 144. 'Tis an offence under this section to steal a free person; 'tis not necessary that a sale of the person be made to constitute the of fence of stealing. Alfred R. Davenport's case, gen'l ct. Nov. T. 1829. From Henrico county, during the trial of this case before the superior court, the prisoner moved the court to instruct the jury that the commonwealth must prove to their satisfaction that he, the prisoner, knew at the time when the alleged stealing was committed that the person named in the indictment as the person stolen was free at that time, which instruction the court refused to give, and instructed the jury "that if they were satisfied that the person alleged to be stolen was free at the time he was stolen, and that the prisoner took and carried him away with the felonious design of selling him as a slave, that the prisoner ought to be convicted, whether he knew or not that he was then free." Sustained by the general court. The prisoner farther moved the court to instruct the jury that to constitute the felonious taking and carrying away, charged in the indictment, they must be satisfied that such taking and carrying away was against the consent of the said David Cæsar, which instruction the court refused to give, it appearing that the said David Cæsar was not more than eight years of age at the time the offence alleged in the indictment was committed. Sustained by the general court. Ib. See this case reported in 1 Leigh, 588, and distinguished from Mercer's case, 2 Virg. Cas. 144. + See post. same tit. No. 67, note (2). (n) (o) It had been held, that an indictment charging the slave to have been taken from the possession of the owner, was not supported by evidence that he was taken from the possession of the hiree. The Com. v. Williams, Virg. Cas. 14. And, that evidence proving the slave to be a runaway, did not sustain a charge that he was taken from the possession of his owner. The Com. v. Hays, Virg. Cas. 122. These decisions were founded on the law as it stood prior to January 1799; see State v. Miles, 2 Nott & M'Cord, 1. The larceny of a slave is not an offence at common law. The Com. v. Hays, Virg. Cas. 122; see Hall's case, 1799, Taylor's N. C. R. 126. Contra. (4) The consent of the owner must be negatived in the indictment. The taking "without the consent of the owner" is an essential constituent of the offence created by this stat., and the omission to charge it in the words of the stat. or in words of equivalent import, is a defect not cured by the stat. of Jeofails. Noble Pease's case, genl. court, July T. 1834, 4 Leigh, 692. Is it necessary, on the part of the prosecution, to call the owner to prove that he had not assented; or may it be proved by other witnesses? See Rogers's case, 2 Čamp. N. P. C. 654; Hagy's case, 2 Car. & P. 458; Allen's case, 1 Moo. C. C. R. 754. But quary, the necessity of this evidence on part of prosecution, &c. See Connor's case, 5 Leigh, 718. Act of March 2, 1819-January 1, 1820. R. C. ch. 111. fraud or deprive such owner or owners of such slave or slaves, (1) shall be adjudged guilty of felony, and subject to prosecution as in other cases of felony. [Whenever an offence shall be committed against the provisions of this section, the offender or offenders, in any prosecution on behalf of the commonwealth, shall be tried in that county from which the slave or slaves shall be taken and removed; (Feb. 26, 1820, c. 32, § 1,)] and upon conviction thereof shall be punished by a fine not less than one hundred nor more than five hundred dollars, and shall also be imprisoned in the jail or [and] penitentiaryhouse, for a period not less than two, nor more than four years; which fine and imprisonment shall be fixed and ascertained by a jury. And the person offending herein, shall moreover be subjected to pay to the owner or owners of the slave or slaves carried away as aforesaid, double the value of such slave or slaves, together with double the amount of all costs and expenses, by him, her or them incurred, in regaining or attempting to regain such slave or slaves: to be recovered by an action on the case, in any court of record in this commonwealth, having original jurisdiction over such actions. (2) In all actions instituted for the recovery of the penalty imposed by this section, bail may be required of the defendant or defendants, as of right. 1748, c. 14, 5 Stat. Larg. 547; 1792, c. 103, R. C.; Jan. 31, 1805, c. 60, ed. 1808; Feb. 13, 1813, c. 27. See tit. SLAVES, No. 17. 32. 31. Not only all those who shall willingly and designedly carry away slaves as aforesaid, but all masters of vessels, who, having a slave or slaves on board their said vessels, shall sail beyond the limits of any county,(3) with such slave or slaves on board, shall be considered as carrying off or removing such slave or slaves, within the true intent and meaning of the thirtieth section of this act. Any person travelling by land, who shall give countenance, protection or assistance to such slave or slaves, for the purpose of preventing him, her or them from being stopped or apprehended, shall also be considered as carrying off or removing such slave or slaves, within the true intent and meaning of said thirtieth section. Jan. 31, 1805, Ibid. Act of January 21, 1801. R. C. ch. 161. 33. § 1. Any person who shall hereafter, of his own free will and accord, or by the persuasion of, or combination with any foreign agent, or any other person being an alien, or a citizen of this commonwealth, or of any other of the United States, deliver up or surrender, or cause to be delivered up or surrendered, either by his own authority, or under colour of any office whatsoever, held, or claimed to be held, under the authority of this commonwealth, any citizen of this commonwealth, or of any other of the United States, or any other free person whomsoever, (p) being within the limits of this commonwealth, and entitled to the protection of the laws thereof during his residence. (1) In a prosecution under this act, the prisoner moved the court to instruct the jury, "that if they believed from the evidence that the prisoner carried the slaves out of the commonwealth with the intention of getting a reward, and not with the intention of depriving the owners thereof of said slaves, they must find the prisoner not guilty," which the court gave, but added thereto, "unless they should also believe from the testimony, that the prisoner did carry them out of the commonwealth with the intention of depriving the owners of their said slaves, until he should receive a reward for their apprehension." No error. Thomas v. The Comth. genl. ct., November (2) See act Mar. 11, 1834, c. 68, § 8, 9, p. 80. See also preamble and resolutions adopted by the general assembly of Virginia relative to the demand by the executive of Virginia upon the executive of the state of New York, for the surrender of three fugitives from justice charged with having stolen a slave. Ses. Acts 1840, p. 155. (p) For a view of the law of nations on this subject, see the opinion of Kent, C. J. in the matter of Washburn, 4 Johns. Ch. R. 106, 108, 114. Nowe stealing Act of January 21, 1801. R. C. ch. 161. . therein, to be transported beyond sea, or elsewhere, without the United States, 34. § 2. In case any person, so delivered up or surrendered as aforesaid, Act of January 30, 1819-January 1, 1820. R. C. ch. 152. 35. § 1. If any person do feloniously take or steal (2) any horse, mare or gelding,(3) foal or filly,(4) such person, if a free person, and the accessary or accessaries before the fact to the said offence, if free, shall be deemed guilty of felony; and, upon conviction, shall restore the horse, mare or gelding, foal or filly, to the owner or owners thereof, or shall pay to him, her or them, the full value thereof, and shall be sentenced to undergo a confinement in the public jail and penitentiary-house, for a period not less than five, nor more than ten years. And if a slave do feloniously take or steal any horse, mare or gelding, foal or filly, the slave so offending shall not be admitted to have or enjoy the benefit of clergy, but shall be utterly excluded therefrom, and shall suffer death as in case of felony. 37 Hen. 8, c. 8; 1 Ed. 6, c. 12; 2 and 3 Ed. 6, c. 33 ; 1792, c. 101; 1796, c. 200, R. C.; 1804, c. 41, ed. 1808. 36. 2. If any person or persons shall receive or buy any horse, 'mare or gelding, foal or filly, mule or ass,' that shall be feloniously taken or stolen from (g) See note (p) on preceding page. (1) See act Feb. 23, 1828, c. 38, Ses. Acts (2) What a felonious taking &c. See Joshua Starkie's case, gen'l ct. Dec. T. 1836, 7 Leigh, 753; Blunt's case, gen'l ct. July T. 1834, 4 Leigh, 689. We think the law well settled that where a person obtains the goods of another by lawful delivery, without fraud, tho' he afterwards coverts them to his own use, he is not guilty of felony, but if such delivery be obtained by any fraud or falsehood, and with an intent to steal, though under pretence of hiring, borrowing, or even purchase, where no credit is intended to be given, the delivery in fact by the owner, will not pass the legal possession, so as to save the party from (3) On trial of indictment for the larceny (4) 4 C. C. L. 96; feloniously stealing, taking and leading away, at in the county aforesaid, one gelding of a bay colour, of the value of dollars, of the goods and chattels of him the said X. Y. against &c. Indictments for horse stealing need not conclude contra formam statuti; and even if it were proper that they should, the omission would be cured by the act of Jeofails. Chiles v. The Com. gen'l ct. June T. 1821, 2 Virg. Cas. 260. |