Commonwealth v. Dimond

57 Mass. 235 | Mass. | 1849

Shaw, C. J.

This is an indictment on the Rev. Sts. c. 126, § 16, describing the offence of larceny, “by stealing from the person of another.” The indictment charges the defendant with stealing a bank note for twenty dollars from the person of one Moore. [Here the judge stated the facts, from the bill of exceptions, together with the instructions of the judge of the municipal court.]

It is argued, that the act of the defendant, although admitted to be a larceny, is not a stealing from the person, within the meaning of the statute, and that to make it a stealing from the person, it must either be done openly, and against the consent of the party, or privily and without his knowledge. But it must be considered, that the law is somewhat altered in terms in the revised statutes from the preexisting law in the St. of 1804, c. 143, § 8, in which the words are: “ larceny from the person of another, either openly and violently, or privily and fraudulently,” implying that the act must be the one or the other. The language of the Rev. Sts. c. 126, § 16, is simply : “ larceny by stealing from the person of another.”

The case is within the letter of the present statute, and the court are of opinion, that it is equallv within its soirit and purpose. The bank note was.in the owner’s possession; and he did not surrender that possession by handing the note to the defendant, or consenting that he should take it. The witness testified, that he held the bill in his hand, and that when the defendant said he would get his ticket, he did not assent, nor did he dissent, or make any resistance. The latter is understood to mean, that he made no resistance, and did not express any dissent. The bill, then, was property taken from the person of the owner, with a felonious intent, and without his consent.

The court are of opinion, that the direction of the judge, that if at the moment of taking the bill, the defendant intended to deprive the prosecutor of it, and apply it to his own use, it was a felonious taking and stealing from the person, was precise and accurate, properly adapted to the case, and <*orrect in law. Exceptions overruled.