The King against Ellis
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1826 |
| Date | 05 May 1826 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 147
IN THE COURT OF KING'S BENCH.
S. C. 8 D. & R. 173; 5 L. J. M. C. O. S. l.
START [395] the king against ellis. Friday, May 5th, 1826. The statute 3 G. 4, c. 38, s. 2, enacts, " That if any servant shall steal any money from his master, and shall be convicted thereof, and be entitled to the benefit of clergy, he, instead of being subjected to such punishment as may now by law be inflicted upon persons so convicted, and entitled to benefit of clergy, shall be transported for fourteen years:" Held, that a servant convicted of petit larceny was not within the meaning of this statute, and that he was subject to be transported for seven years only. [S. C. 8 D. & E. 173; 5 L. J. M. C. 0. S. 1.] The defendant was indicted at a Court of Quarter Sessions held before the justices of the City and county of Exeter, and the indictment charged, that the one piece of the current coin of this realm called a shilling, of the value of one shilling, of the money, goods, and chattels of Susan Newman, feloniously did steal, take, and carry away. Another count charged,-that the defendant was a servant to S. Newman, and being such servant, one other piece of the current coin of this realm called a shilling, of the value of one shilling, of the money, goods, and chattels of the said S. Newman, feloniously did steal, take, and carry away, against the form of the statute, &c. The jury having found the prisoner guilty upon the indictment generally, the Court adjudged that he be transported to parts beyond the seas for the term of fourteen years. A writ of error having been brought upon this judgment, the error assigned was, that by the law of the land the defendant could not for the offence charged in the indictment be legally transported beyond the seas for the term of fourteen years, or for any longer term than seven years. This case was argued on a former day in this term, by Chitty for the prisoner. The judgment cannot be supported. The defendant, 148 THE KING V. ELLIS 5 B. & C. 396. having been convicted of petty larceny, was liable to transportation for seven years only. This is not a case within the statute 3 G. 4, c. 38, s. 2, which enacts, "That if any servant, &c. shall feloniously steal any money, &c. from or belonging to his master [396] or mistress, and shall be convicted thereof, and be entitled to the benefit of clergy, then every such offender, instead of being subjected to such punishment as may now by law be inflicted upon persons so convicted, and entitled to the benefit of clergy, may be transported for fourteen years." The statute contemplated cases where the party convicted was compelled to claim the benefit of clergy to exempt himself from the punishment of death. But petty larceny was at no period so punishable (a). Clergy was not allowable at common law in petty larceny or mere misdemeanors (b). The statute 4 G. 1, c. 11, which first gave the Court a discretionary power of ordering transportation in certain cases, mentions petty larceny by name, and it limits the period to seven years. (He was then stopped by the Court.) Parke, contra. The judgment of transportation for fourteen years is warranted by law. Secondly, at all events, it is good as a judgment of transportation for seven years. Thirdly, if the judgment cannot be supported, the prisoner may be remanded to the Court below, in order that he may receive such judgment as the law will warrant. The judgment pronounced is warranted...
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