People v. McElroy

Van Fleet, J. Defendant was charged with grand larceny in stealing seventeen dollars from the person of one James Shaw, and convicted. He complains that the evidence did not warrant the verdict.

Shaw and the defendant had their beds near together in the open air. Shaw on going to bed removed his trousers, in the pocket of which was the money, and placed them under his head as a pillow; while he slept they were abstracted by the defendant, and the money taken. The question is whether these facts show a taking “ from the person” under our statute, which makes the offense grand larceny, without regard to the amount stolen, “when the property is taken from the person of another.” If it was not such taking, the amount was insufficient to constitute any greater offense than that of petit larceny. (Pen. Code, secs. 487, 488.)

The stealing of property from the person has been from an early period under the English statutes treated as a much graver and more heinous offense than ordinary or common theft—partly by reason of the ease with which it can be perpetrated and the difficulty of guarding against it, and partly because of the greater liability of endangering the person or life of the victim. The same general reason and purpose animate the modern statutes, including our own, and, as in England, the offense is made punishable as a felony. The difficulty has been in defining with precision in all cases what constitutes a taking from the person, and this has given rise to some confusion in the authorities on the question [585]as to whether the property must be actually on, or attached to, the person, or merely under the eye, or within the immediate reach, and so constructively within the control of the owner. According to Mr. Bishop: “ The thing taken must be under the protection of the person, but need not be attached thereto.’' (2 Bishop’s Criminal Law, 898.) But the only case he cites in support of the text is Regina v. Selway, 8 Cox C. C. 285, where the indictment was for robbery, and the facts clearly show that offense, and not larceny; the prosecutor being attacked while in his room and struck violently on the head by one of the prisoners, while the other went to a cupboard in the room and stole a cash box. Mr. Bishop suggests, tentatively, that “ probably in this particular the rule in robbery applies.” But he cites no case in support of the suggestion, and we think the authorities against it.

Thus, in Rex v. Hamilton, 8 Car. & P. 49, where a man went to bed with a prostitute, putting his watch in his hat on a table, and the watch was stolen by the woman while he slept, it was held that the offense was larceny from the house, and not from the person.