By the Court.
The crime of larceny is by the statutes (Comp. Stat., 710) dividеd into several classes or degrees, more or less aggravated, according to the circumstances under which it is committed. Larceny frоm the person, is ranked as the highest offence, being punished by imprisonment in the state prison for a term not more than four years, nor less than two, оr by fine and imprisonment in the county jail. Larceny in a dwellinghouse, office, shop, bank or warehouse, ship, steamboat, or vessel, &c., is classed next, and simple larceny is the lowest degree, being divided into larceny of over one hundred dollars in value, and under that sum, the former being a felоny and the latter a misdemeanor simply.
In the chapter on indictments (chap. 105, p. 755), forms are provided and declared to be sufficient. We have held that
The reason that larceny from the person is сonsidered by the legislature a higher offence than other stealing, is because the crime involves an invasion of the person of the citizеn as well as the stealing of the property. It includes all cases of pocket-picking and similar offences, but in our opinion, extends to every case of stealing, where the property stolen is on the person, or in the immediate charge and custody of the person from whоm the theft' is made. Eor instance, should a cane or umbrella be taken from the hand of a person, or a barrow that he was wheeling, or toоl with which he was employed, or horse that he was driving, leading, or holding by the bridle, we are clearly of the opinion that the theft would be larceny frоm the person. In each of these cases the rights of the person to inviolability would be encroached upon, and his personal seсurity endangered, quite as much as if his watch or purse had been taken from his pocket.
The indictment alleges that the horses were taken from the person of the owner. It is true, it adds, that they were at the time in a stable occupied by him, but there is nothing inconsistent in this fact with the owner being with them, and in thе immediate charge and manual possession of them. The-specification, therefore, makes out a crime of larceny from the рerson.
Under the statute where the crime has a name, and is' di
When the case came on for trial, the defence endeavored to reduce the degree of the offence by showing that the owner of the property was absent at the time of the theft, which he succeeded in establishing, as it appeared that the owner was in his dwelling, some distance from the stable, and knew nothing of the affair until the next morning. The jury convicted the Defendаnt by rendering a general verdict of guilty.
It is contended that in an indictment for larceny from the person, the Defendant must be acquitted if that particular offence is not made out against him. To this we cannot assent. Each of the several descriptions of larceny involve a. simple larceny. The fact of its having been committed in a dwelling house, or from the person, merely goes in aggravation, and increases the severity of thе punishment. If the-prosecution fails in establishing these circumstances, but proves the larceny substantially as charged, a conviction for the minоr degree of the offence may be had. As, for instance, if the theft is alleged to have been in a certain house, properly described, and alleged to be the dwelling house of the owner of the goods, and the larceny is clearly proved to have taken place in that house, but at the time it had ceased to be a dwelling house, being untenanted, or for some other reason, there is no reasonable doubt thаt a conviction for the larceny may nevertheless be had ; or, as in this case, where the allegation is, that the horses were stolen from thе person of the owner, being from a stable occupied by him, &c., — and it appears that they were stolen from the stable, but the owner was not in the immediate and personal custody of them, — the Defendant may be convicted of the simple larceny. Comp. Stats., 783-4, secs. 20-21.
In the case of Bilansky vs. The State, 3 M. R., 427, at page 487 of the opinion of the Court, we say, “ It is only when the jury acquit of the main charge, and convict of some inferior
"Where the jury design to convict the prisoner of the offence with which he is charged, the verdict of “ guilty ” is all that is required ; but they should, in all cases where the proof renders it necessary, be instructed upon the law of the crime, and directed to specify the degree in which they find the Defendant guilty, if the whole charge is not sustained. If in this case they meant to find the Defendant guilty of stealing from the person, the evidence does not sustain thе verdict.
The ease is sent to us by the Judge upon his certificate of doubt as to certain questions arising, and the evidence reported to us is very meagre, being merely an outline of what was taken on the trial. The Attorney General urges upon us the propriety of entering a nolle proseqm as to the сharge of stealing from the person, and allow the eonvictioh to stand for the simple larceny. The power of the Court to do so is undoubtеd. Commonwealth vs. Tuck,