from the person this element is wanting. If the owner of property resists an attempt to take it, and the resistance is overcome, there is, as we shall see, sufficient violence to make the offense robbery.248 And the same is true if there is personal injury in the taking, as where a person is knocked down and then robbed, or an earring is torn from a woman's ear with sufficient violence to tear the ear.249 But if a person's pocket is picked, or property is suddenly snatched from his hand, or head, no more force being used than is necessary to the mere act of snatching, the offense is not robbery, but larceny from the person. 250

340. Larceny from Particular Places.

(a) In General.-At common law, to steal in a dwelling house or other particular place is merely simple larceny, and is not distinguished from other simple larcenies,251 in the absence of a breaking and entry with intent to steal, which, as we shall see, is burglary.252 The statute of 12 Anne, c. 7, enacted in 1713,253 deprived of the benefit of clergy, to which simple lar ceny was subject, any person who should feloniously steal money, goods or chattels, wares or merchandise, of the value of forty shillings or more, being in any dwelling house, or outhouse thereunto belonging, although such house or outhouse should not be broken, and though neither the owner nor any other person should be in the house at the time. This statute has been repealed, but the present statute punishes larceny in a dwelling house as a distinct offense, and more severely than

248 Post, § 370 et seq.

249 Id.

250 Reg. v. Walls, 2 Car. & K. 214; Steward's Case, 2 East, P. C. 702; Danby's Case, Id.; Fanning v. State, 66 Ga. 167.

251 2 East, P. C. 623, Mikell's Cas. 829. Thus, East defines larceny as the taking and carrying away of the mere personal goods of another "from any place," etc. 2 East, P. C. 553.

252 See post, § 400.

253 There were also earlier statutes punishing larceny in particular places. See 2 East, P. C. 623 et seq

simple larceny.254 There are similar statutes in this country. Statutes have also been enacted, both in England and in this country, punishing larceny in other places than a dwelling house, as from a "house," a "shop," a "warehouse," an "office," a "building," a "vessel," etc.255

(b) The Place. To bring a case of larceny within such a statute as this, the place must come strictly within the terms of the statute. Thus, it has been held that a statute punishing larceny in an "office" does not apply to larceny in the passenger room of a railroad station, though it adjoins a separate inclosed place where books are kept and tickets sold;256 and a statute punishing larceny in a "house" does not apply to larceny in a tent. 257

To come within a statute punishing larceny in or from a dwelling house, the house must be used and occupied as a dwelling. It must be such a house as is the subject of burglary; and, if it is such a house, it is within the statute.258

254 The statute of 24 & 25 Vict. c. 96, § 60, prescribes a particular punishment for stealing, “in any dwelling house," any money, chattel, or valuable security, to the value in the whole of £5. Section 61 punishes such stealing when the thief shall, “by any menace or threat, put any one being therein in bodily fear."

255 24 & 25 Vict. c. 96, §§ 62-64; Pen. Code Minn. §§ 417, 418.

256 Com. v. White, 6 Cush. (Mass.) 181.

257 Callahan v. State, 41 Tex. 43.

258 2 East, P. C. 643; Rex v. Davis, 2 East, P. C. 499; Henry v. State, 39 Ala. 679. As to what is necessary to render a house the subject of burglary, see post, § 401 et seq.

In People v. Horrigan, 68 Mich. 491, 36 N. W. 236, it was held that the statute applied where one room in the basement of a house was occupied by a man as a regular dwelling place, though the upper part was used for offices. And in State v. Leedy, 95 Mo. 76, 8 S. W. 245, it was held that a hotel in which the keeper lived was his dwelling house, and that one who stole his shoes from the office was guilty of larceny in a dwelling house.

In State v. Clark, 89 Mo. 423, 1 S. W. 332, it was held that the term "dwelling house" did not include a basement or cellar with only an outside door, used for the storage of ice and beer, though there were rooms above it, occupied by families as a residence, where there was no internal communication between it and the rooms above, and the families living above had no interest in it, or control over it. It

When a statute punishes larceny in "a house," or in “any house," it does not mean a dwelling house, but applies to larceny in a store, or a bank, or any other house, for whatever purpose it may be used, and whether it is occupied by any person or not.2 259 Such a statute creates an offense against the property, and not, as in burglary, against the habitation. 260

To constitute larceny from a "storehouse," or "warehouse," the building must be used as a storehouse, or warehouse, as the case may be. It is not enough that it was built for such a purpose, 261

(c) The Property must be under the Protection of the House. ---Some of the statutes punish larceny "in" the house, while others punish larceny "from" the house; but it has been said that they mean the same thing.262 Under both the property must be under the protection of the house. 263 For this reason it has

would be otherwise if the family living above also owned or used the cellar.

259 Stanley v. State, 58 Ga. 430. A tent is not a "house." See note 257, supra.

260 Simmons v. State, 73 Ga. 609, 54 Am. Rep. 885.

261 Jefferson v. State, 100 Ala. 59, 14 So. 627.

A "warehouse" is a place for the reception and storage of goods and merchandise. See Lynch v. State, 89 Ala. 18, 7 So. 829. A cellar used for the deposit of goods intended for removal and sale was held a "warehouse," within the meaning of an English statute. Reg. v. Hill, 2 Mood. & R. 458. "A warehouse," in the Kentucky statute, was held to mean any house, not an office or shop, in which goods, wares, or merchandise are usually deposited for safe-keeping or for sale, and the term was held to include a granary used for storage of farming utensils and the like. Ray v. Com., 12 Bush (Ky.) 397. And see Hagan v. State, 52 Ala. 373. It is not larceny from a warehouse to take a trunk at a railroad station from a passage way extending between the baggage room and the reception room, and under a common roof with them, but not inclosed on any side. Lynch v. State, 89 Ala. 18, 7 So. 829.

262 Martinez v. State, 41 Tex. 126.

263 Rex v. Owen, 2 Leach, C. C. 572, 2 East, P. C. 645, Mikell's Cas. 829; Com. v. Smith, 111 Mass. 429, Beale's Cas. 703; Com. v. Lester, 129 Mass. 101, Beale's Cas. 705; Martinez v. State, 41 Tex. 126; Henry v. State, 39 Ala. 679.

C. & M. Crimes-32.

been held that it is not larceny in a dwelling house to steal clothes from the railing or banisters of a piazza attached to a dwelling house; 264 nor larceny from a house to steal property which is hanging outside of a store door on a piece of wood nailed to the door and projecting towards the street. 265

Property is not under the protection of the house if it is under the eye or personal care of the owner of the house or of someone else who happens to be in the house. In such a case it is under the protection of the person, and stealing it is larceny from the person, and not larceny in or from the house.266 The mere presence of the owner, however, does not prevent the property from being under the protection of the house. 267

264 Henry v. State, 39 Ala. 679.

265 Martinez v. State, 41 Tex. 126. See, also, Lynch v. State, 89 Ala. 18, 7 So. 829. In People v. Wilson, 55 Mich. 506, 21 N. W. 905, Judge Cooley said that it might be a question whether taking a barrel of oil from in front of a store was not larceny from the store, but the point was not decided or discussed. Burge v. State, 62 Ga. 170, however, is opposed to the view stated in the text. It was there held that it was larceny from the house to steal a watch which was hanging on a post covered by the roof of a house. In an earlier case, however, the same court held that stealing property from a sidewalk or alley in front of a building was not within the statute. Middleton v. State, 53 Ga. 248.

266 Rex v. Owen, 2 Leach, C. C. 572, 2 East, P. C. 645, Mikell's Cas. 829; Rex v. Campbell, 2 Leach, C. C. 564, 2 East, P. C. 644; Com. v. Smith, 111 Mass. 429, Beale's Cas. 703.

In Com. v. Lester, 129 Mass. 101, Beale's Cas. 705, a person in whose hands a shop keeper had placed goods for inspection ran off with them when the shop keeper momentarily turned his back. It was held that the goods were not at the time under the protection of the building, and that the theft was not larceny in a building.

267 Rex v. Taylor, Russ. & R. 418, Mikell's Cas. 830; Rex v. Hamilton, 8 Car. & P. 49; Com. v. Smith, 111 Mass. 429, Beale's Cas. 703; Simmons v. State, 73 Ga. 609, 54 Am. Rep. 885.

Thus, property that is in the room of a person who is asleep, and not actually on his person, is under the protection of the house, and not of the person, and stealing it is larceny in the house. Rex v. Taylor, supra; Rex v. Hamilton, supra; Com. v. Smith, supra.

In Simmons v. State, supra, a person went into a bank, and deposited on the counter a satchel containing money, and, while he was stand

(d) Who may Commit the Offense. It was early decided that a statute punishing larceny in a dwelling house does not apply to stealing by a person in his own house, nor to a stealing by a wife in her husband's house, which, for this purpose, is the same as her own,2 268 as the statute is intended "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."269 The same construction has been placed upon statutes punishing larceny in other places than dwelling houses, as in stores and other buildings, 270 and in vessels.271

In Texas the statute punishing theft in a house expressly declares that it shall not apply to "a domestic servant or other inhabitant of such house."272

(e) Ownership of the Property.-Under these statutes the property need not be that of the owner or occupant of the house, unless the statute so requires.273

(f) Entry of the Premises.-There need be no entry into the house with intent to steal, unless this is required by the statute. 274 Nor, in the absence of such a requirement, need the

ing within about two feet of it, another person distracted his attention, and a third person abstracted money from the satchel. This was held to be larceny from the house. The decision is a very doubtful one. 268 Rex v. Gould, 1 Leach, C. C. 217, 2 East, P. C. 644; Rex v. Thompson, 1 Leach, C. C. 338, 2 East, P. C. 644; Com. v. Hartnett, 3 Gray (Mass.) 450, Beale's Cas. 701.

269 2 East, P. C. 644; Metcalf, J., in Com. v. Hartnett, supra.

270 Com. v. Hartnett, supra.

271 Rex v. Madox, Russ. & R. 92, Beale's Cas. 641.

272 This exception does not apply to a servant whose employment is out of doors, and not in the house, or to a lodger, boarder, or visitor in the house. Wakefield v. State, 41 Tex. 556; Williams v. State, 41 Tex. 649; Ullman v. State, 1 Tex. App. 220.

In Taylor v. State, 42 Tex. 387, a porter in a barroom, who cleaned up the room, etc., was held a domestic servant, within the meaning of the statute.

273 Hill v. State, 41 Tex. 157; Simmons v. State, 73 Ga. 609, 54 Am. Rep. 885; Rex v. Taylor, Russ. & R. 418, Mikell's Cas. 830.

274 Berry v. State, 10 Ga. 511.