object which he had in view in receiving it, by turning it to pecuniary profit or other like manner, although prima facie, she might be supposed to be acting under the coercion of her husband that is rebutted by the active part she took in the matter, with the intent above mentioned. But if the part she took was merely for the purpose of concealing her husband's guilt, and of screening him from the consequences, then I think she ought to be acquitted. A wife can not be convicted of harboring her husband when he has committed a felony; and the mere circumstances of her attempting to conceal what may lead to his detection appears to come within the same principle.

The prisoner, Ann Draddy, was acquitted.

STOLEN GOODS PRESUMED IN HUSBAND'S POSSESSION-WIFE NOT

GUILTY.

R. v. BANKS.

[1 Cox, 238.]

Before Mr. Justice ERLE (Devizes), August, 1845.

Stolen Goods found in the House of a married man can not be considered as in the possession of the wife, and she can not be convicted of their larceny, if otherwise she is not implicated.

The prisoner, Hannah Banks, was indicted for a larceny. No evidence was given to show how the goods had been taken, but they were found in the house of the prisoner's husband, he being a blind man. When they were discovered, the prisoner said she had purchased them a long time before.

Slade, for the prisoner, contended that there was no evidence to go to the jury against the prisoner. The goods were found in the house of the prisoner's husband, who was living there, and in whose possession, therefore, they must be considered to have been and not in the possession of the prisoner. He cited R. v. Archer,1 and a passage from Dalton,2 where it is thus laid down: "Where stolen goods are received by a married woman in the absence of her husband, and are concealed in his house without his knowledge, she alone may be indicted and punished for the offense; but if the husband's innocence be not satisfactorily proved, the law will, in most cases, impute the receiving to him."

1 1 Moody, 143.

2 ch. 157, p. 353.

ERLE, J. I quite agree with that, and if the prisoner had said nothing, and the goods had simply been found in the house of the husband, I should think there was no evidence to go to the jury. But as she said she bought the goods, I think it must be left to the jury to decide whether the goods were in her possession or in the possession of her husband.

The learned Judge then left this question to the jury, telling them that if they were of opinion that the goods were in the possession of the wife, and without the consent and control of the husband, they must find her guilty; but if they had any doubt of this they must acquit her.

WIFE - NOT LIABLE FOR LARCENY COMMITTED IN BUILDING OWNED BY HUSBAND.

COMMONWEALTH V. HARTNETT.

[3 Gray, 450.]

In the Supreme Judicial Court of Massachusetts, March Term,

1855.

A wife Stealing in a Building owned by her husband is not liable to punishment for the statutory offense of larceny " in any building."

The prisoner, Mary Hartnett was indicted under statute of 1851,1 for larceny in a building of Timothy Hartnett. At the trial at the municipal court, it appeared that said Timothy was the husband of the defendant; and the defendant contended that she could therefore be convicted of simple larceny only. But HOAR, J., ruled that the evidence was sufficient to sustain the charge of larceny in a building. And to this ruling the defendant, being found guilty, alleged exceptions. J. A. Andrew for the defendant.

J. H. Clifford, Attorney-General, for the Commonwealth.

METCALF, J. The defendant is convicted of larceny in a building owned by her husband; and as the indictment does not aver that it was committed in the night time it must be taken to have been committed in the day time. The question is whether the defendant is liable to the punishment prescribed by statute 1851,3 for larceny "in any building," or only to the punishment elsewhere prescribed for simple larceny.

1 ch. 156, sec. 4.

2 Statute 1843, ch. I., sec. 2.

1 DEFENCES.

3

3 ch. 156, sec. 4.

Larceny in the day time, in a dwelling-house and in certain other buildings, not broken into, was first subjected, in Massachusetts, to greater punishment than if not committed therein, by statute 1804,1 to wit, solitary imprisonment of the offender, in the State prison, not exceeding six months, and confinement there afterwards to hard labor, not exceeding five years. By statute 1830,2 courts were authorized to sentence such offender to confinement in the county jail, not exceeding five years, or to the payment of a fine according to the nature and aggravation of the offense. By the Revised Statutes 3 it was thus enacted: "Every person who shall steal, in the day time, in any dwelling-house, office, or bank, shop or warehouse, ship or vessel, shall be punished by imprisonment in the State prison, not more than five years, or by fine not exceeding three hundred dollars, and imprisonment in the county jail, not more than two years." By statute 1851,4 "Every person who shall commit the offense of larceny, by stealing in any building, shall be punished by imprisonment in the State prison not more than five years, or by a fine not exceeding five hundred dollars, or imprisonment in the house of correction or county jail, not exceeding three years."

For simple larceny, that is for theft not aggravated by being from the person, nor by being committed in a dwelling-house, or other building, ship, or vessel, a lighter punishment is prescribed by the Revised Statutes. 5 And we are of opinion that the defendant is liable only to that lighter punishment.

We do not suppose that any English statutes for the punishment of larceny were ever held to be in force in Massachusetts. Yet the provisions of some of them, and the provisions of acts of Parliament for the punishment of other offenses, have been enacted by our Legislature, in every stage of our history. And in such cases (as well as in cases where English statutes respecting civil concerns have been enacted here), it has always been held that the construction previously given to the same terms, by the English courts, is the construction to be given to them by our courts. It is a common learning, that the adjudged construction of the terms of a statute is enacted, as well as the terms themselves, when an act which has been passed by the Legislature of one State or country, is afterwards passed by the Legislature of another. So when the same Legislature, in a later statute, use the terms of an earlier one which has received a judicial construction, that construction is to be given to the later statute. And this is manifestly right. For if it were intended to exclude any known construction of a previous statute, the

1 ch. 143, sec. 6.

2 ch. 72, sec. 3.

3 ch. 126, sec. 14.

4 ch. 156, sec. 4.

5 ch. 126, sec. 17, and ch. 143, sec. 5.
67 Dana Ab. 168.

legal presumption is, that its terms would be so changed as to effect that intention. There are many instances in which our Legislature have made punishable, as offenses, acts which were first made so by English statutes. Among others are our statutes concerning the fraudulent obtaining of money or goods by false pretenses. In all such cases, the construction given by the English courts is deemed to be the true one, when the statutes are alike. And we have already stated, that the act of stealing in certain buildings was first made an aggravated larceny, and subjected to a greater punishment than before by statute 1804.2 Yet by the English statute,3 it was enacted that "all and every person or persons that shall feloniously steal any money, goods, or chattels, wares or merchandises, of the value of forty shillings or more, being in any dwelling-house, or outhouse thereunto belonging, although such house or outhouse be not actually broken by such offender, and although the owner of such goods, or any other person or persons be or be not in such house or outhouse, being thereof convicted, shall be absolutely debarred of and from the benefit of clergy." And by the English statute a like provision was made in cases of conviction of the offense of feloniously stealing goods, wares or merchandise, of the value of forty shillings, in any ship, barge, lighter, boat or other vessel, upon any navigable river, or in any port of entry or discharge. But it was early decided that the first of these statutes did not extend to a stealing by one in his own house, nor to a stealing by a wife in her husband's house, which is the same as her own. The intention of the statute was declared to be, to protect the owner's property in his own house from the depredation of others, or the property of others lodged in his house; thereby giving protection against all but the owner himself. It has also been decided that the property stolen must be such as is usually under the protection of the house, deposited there for safe custody, and not things immediately under the eye or personal care of some one who happens to be in the house. And it has also been held that the Statute 24 Geo. II., does not extend to stealing by the owner and master of a vessel.7

We are of the opinion that the purpose and intent of Statute 1804,8 and of the Revised Statutes,9 were the same as the purpose and intent

of Statute 12 Anne,1 and that they must have the same construction which was given to that before these were enacted. Indeed, the Attorney-General frankly admits this, and that he can not ask for sentence against the defendant, as for an aggravated larceny, unless it is required or warranted by Statute 1851.2 We think the statute has not altered the law in this matter; that it has only made larceny "in any building" an aggravated offense, as former statutes made it when committed in certain enumerated buildings; and that it has not subjected to the punishment therein prescribed any larceny which, if committed in either of those buildings, would not have been liable to such punishment. The statute was passed in consequence of the decision in Commonwealth v. White,3 that the passenger-room of a railroad station was not an "office," within the meaning of the Revised Statutes.4

Defendant to be sentenced for simple larceny.

MARRIED WOMAN-BANKRUPTCY -- EMBEZZLEMENT OF HUSBAND'S PROPERTY.

R. v. ROBINSON

[L. R 1 C. C. 80.]

In the English Court for Crown Cases Reserved, 1867.

Married Woman-Can not Embezzle Husband's Property - Bankruptcy. - A married woman having been adjudicated a bankrupt upon her own petition, in which she described herself as a widow, was afterwards convicted of having embezzled her property. Held, that the conviction was wrong as the property was her husband's.

The following case was stated by MONTAGUE SMITH, J. Mary Robinson, John William Robinson and John William Andrew (together with Mary Skirrow, who was acquitted), were tried before me at York, at the Spring Assizes of 1867, and were convicted and sentenced to terms of imprisonment. Mary Robinson had been adjudicated a bankrupt on the 25th of July, 1866. The indictment contained sixteen counts. One set of counts charged Mary Robinson with committing misdemeanors under the Bankruptcy Act 1861,5 viz: by concealing and embezzling property, and the other defendants with aiding her. Another set of counts charged all the defendants with a conspiracy to do these acts. The bankrupt, Mary Robinson, had carried

1 ch. 7.

2 ch. 156, sect. 4.

36 Cush. 181.

4 ch. 126, sect. 14.

sect. 221, par. 3.