LAPSED legacy, is, where the legatee dies before the testator, or where a lega cy is given upon a fliture contingency, and the legatee dies before the contingen cy happens. As if a legacy is given to a person when he attains the age of twenty one years, and the legatee dies before that age ; in this case, the legacy is a lost or lapsed legacy, and shall sink into the residuum of the personal estate. LARCENY is the felonious and fraudu lent taking away of the personal goods of another, against his will, with intent to steal them. If the goods are above the value of 12d., it is called grand larceny; if of that value, or under, it is petit lar ceny ; which two species are distinguish ed in their punishment, but not other. wise. The mind, or intention, of the act alone makes the taking of another's goods felony, or a bare trespass only ; but as the variety of circumstances is so great, and the complications thereof are so min gled, it is impossible to prescribe all tre circumstances evidencing a felonious in. tent, or the contrary.
As all felony includes trespass, every indictment must have the words feloni ously took, as well as carried away ; whence it follows, that if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away. With respect to what shall be considered a sufficient carrying away, to constitute the offence of larceny, it seems that any, the least removing of the thing taken, from tire place where it was before, is sufficient for this purpose, though it be not quite carried off; but there must be a removal from the place, though it is put back again : and where a pack in a waggon was not actually moved away, but only turned up an end, in order to be carried off, it was held no felony.
As grand larceny is a felonious and fraudulent taking of the mere personal goods of another above the value of 12d., so it is petit larceny, where the thing stolen is but of the value of 12d., or under. In the several other particulars above men tioned, petit larceny agrees with grand larceny ; but in a petit larceny there can be no accessaries either before or after.
Larceny from the person. If larceny from the person be done privily without one's knowledge, by picking of pockets or otherwise, it is excluded from the benefit of clergy, by 8 Elizabeth, c. 4. provided the thing stolen be above the value of 12d,, but if done openly and avowedly before one's face, it is within the benefit of clergy.
Larceny from the house. By the com mon law this was not punished other wise than as a simple larceny, except in i the case of burglary, which is a break ing into a house in the night-time, with intent to steal, and punished capitally ; but now, by several statutes, stealing in a house is deprived of the benefit of cler gy in almost every instance. As, first, in larceny above 12d., in a church or chapel, without violence or breaking the same. Secondly, in a booth or tent, in a fair or market, by day or night, by violence or breaking the same, the owner or some person of his family being therein. Third ly, by robbing, which implies breaking in to, a dwelling-house in the day time, no person being therein. in the same, by day or night,' without breaking, any person being therein, and put in fear. Secondly, in larcenies to the value of 5s., committed, first, by breaking any dwell ing-house, or out-house, shop, or ware house, no person being therein in the day time. Secondly, by privately stealing in a shop, warehouse, coach-house, or stable, by day or night, though the same be not broken open, and no person being therein. Lastly, in larcenies to the value of 40s., from a dwelling-house or its out-houses, although the same be not broken, and whether any person be therein or not, un less by apprentices under fifteen against their masters.
Every person who shall be convicted of the feloniously taking away in the day time any money or goods of the value of 58., in any dwelling-house or out-house thereunto belonging, and used to and with the same, though no person be therein, shall be guilty of felony, with out benefit of clergy. 39 Elizabeth, c. 15.