Commonwealth v. Smith

1 Mass. 245

Opinion

The Court

(Sedgwick, Sewall, and Thacher, justices) were of opinion that they could not give judgment for treble damages for any part of the * articles stolen, excepting [ * 247 ] for the chest: the value of which is averred ; that for that they might, and arrest the judgment as to the other articles. But they informed the prisoners that the consequence would be the requiring them to recognize to appear at the next term to answer to a new indictment; whereupon the prisoners consented to have the present indictment amended by inserting the value of the money stolen.

Note.—See 2 Hawk. P. C. c. 25, sect. 75, as to the necessity of averring the value of the things stolen in an indictment of larceny ; to which section, in the (5th edition, is the following note:—“The benefit of clergy is taken away by several statutes, provided the larceny amounts to a certain value. It is therefore necessary now to state the value of the things stolen, pursuant to the words of the respective statutes.” See also 2 Hawk. c. 33, sect. 59, that the benefit of clergy is taken away by stat. 8 Eliz. c. 4, where any money, goods or chattels are stolen from the person of any other, privily, without his knowledge. In the index to the same edition, part 2, under the word value, it is said, “ At the Lent assizes for Essex, 1787, Gould, J. and Thompson, B., held an indictment for privately stealing bad because no value was fated—M. S.”