within a year next following. The 9 Geo. I. c. 8. revives the last act, and makes it perpetual, extends the former provisions to timber, thick stuff, or plank, marked with the broad arrow, by stamp, brand, or otherwise;" and s. 4. enacts, "that it shall and may be lawful to and for any judge, justice, or justices, before whom any offender shall be convicted of any of the crimes or offences before recited (i. e. the offences referred to in the former statutes) enacted or mentioned in this act, (i. e. the concealing and having in possession timber, &c.) to initigate the penalty for the same as he or they shall see cause, and to commit the offender so convicted to the common gaol of the county or place where the offence shall be committed, there to remain without bail or mainprize until payment be made of the penalty and forfeiture imposed by this or the said former act, or mitigated as aforesaid, or to punish such offender corporally by causing him to be publicly whipped, or committed to some public workhouse, there to be kept to hard labour for the space of six months or a less time, as to such judge, justice, or justices, in his or their discretion shall seem meet." Some doubts having arisen respecting the mode of trial under these acts, the 17 Geo. II. c. 40. s. 10. after reciting all the former provisions, enacts," that it shall and may be lawful to and for any judge, justice, or justices at the assizes, or justices of the peace at the general quarter sessions, to be holden for any county, city, borough, or town corporate, to hear, try, or determine, by indictment or otherwise, all or any of the crimes or offences mentioned in the said recited acts; and that the said judge, justice, or justices of assize, or justices of peace as aforesaid, before whom such offender shall be indicted, or tried and convicted of all or any of the crimes or offences in the said recited acts mentioned, may impose any fine not exceeding the sum of two hundred pounds, on such offender, one inoiety to be paid to his majesty, and the other moiety to the informer; and may mitigate the said penalty and forfeitures inflicted by the said recited acts, or either of them, and to commit the offender so convicted and fiued, to the common gaol of the county or place where the offence shall be committed, there to remain without bail or mainprize, until payment be made of the penalty and forfeitures imposed by this or the said former acts, or mitigated as aforesaid; or in lieu thereof to punish such offender in the premises corporally, by causing him to be publicly whipped, and committed to some house of correction or public. workhouse, there to be kept to hard labour for the space of three months or less time, as to such judge, &c. shall in his or their discretion seem meet." And the 39 & 40 Geo. III. c. 89. s. 1. reciting all the former acts, and that notwithstanding the penalties inflicted by them, the offences had increased which they were intended to prevent, proceeds to enact, "that every person (not being a contractor, or employed as mentioned in 9 & 10 W. III.) who shall willingly or knowingly sell or deliver, or cause or procure to be sold or delivered to any person whomsoever, or who shall willingly or knowingly receive or have in his custody, possession, or keeping, any stores of war, or naval, ordnance, or victualling stores, or any goods whatsoever marked as in the said recited acts are expressed, or any canvass marked either with a blue streak in the middle, or with a blue streak in a serpentine form, or any bewper otherwise called buntin, wrought with one or more streaks of raised tape (the said stores of war, or naval, ordnance, or victualling stores or goods above mentioned, or any of them being in a raw or unconverted state, or being new or not more than one third worn,) and such person who shall conceal such goods, or any of them marked as aforesaid, shall be deemed receivers of stolen goods knowing them to be stolen, and shall, on being convicted thereof in due form of law, be transported beyond the seas for the term of fourteen years, in like manner as other receivers of stolen goods are directed to be transported by the laws of this realm, unless such person shall upon his trial produce a certificate under the hands of three or more of his majesty's principal officers or commissioners of the navy, ordnance, or victualling, expressing the numbers, quantities, or weights, of such stores or goods as he shall then be indicted for, and the occasion and reason of such stores or goods coming to his hands or possession." The second section directs, that persons in whose custody naval stores, &c. shall be found, and all who are convicted of any offence contrary to 8 & 9 W. III. shall, besides forfeiting the stores, 2001. and the 'costs, be corporally punished by pillory, whipping, and imprisonment, or otherwise, at the discretion of the court; but they are still left at liberty to mitigate the stated penalty. The third section provides, that contractors shall have no exemption except for stores bonâ fide made up, and not yet delivered to the proper officers. The fourth section makes the defacing of marks on stores, a single felony. The fifth section makes a second offence under this act, or 9 & 10 W. III. punishable with transportation for fourteen years: and the sixth makes a return from any transportation under this statute, felony without benefit of clergy. But the transportation may always be mitigated into corporal punishment at the discretion of the court in which the offender is convicted. These acts, it will be observed, are all in the disjunctive," receive or buy," "receive or have in possession." It is not necessary, therefore, that the defendant should have purchased the goods Indictment. in order to make his offence complete; nor, indeed, is it essential to the crime that he should have an interest in them; it will suffice if he received them merely to assist and skreen the original offender, 2 East P. C. 765. There seemed, indeed, to be some doubt, whether, if the jury found a having in possession, but not a receiving, the prisoner would come within 39 & 40 Geo. III. but the majority of the judges thought in the affirmative, 2 East P. C. 767; and, on the general principles by which disjunctive statutes are construed, it seems difficult to conceive how the doubt could have arisen. By the statutes, the king's mark on the stores is presumptive evidence of ownership: it fixes the party with the offence of unlawfully having possession, unless he can produce the certificate from the commissioners, of the occasion which renders it legal: but by an equitable construction of the provisions, it is holden that if the defendant can shew he had no evil design, but that the possession was really innocent, though he cannot excuse himself by the means prescribed, he will be acquitted. Thus where a widow was indicted for having naval stores which had been wrought into table linen, and it was shewn that her husband had bought them many years ago at a public sale, that at his death they came by act of law to her, and that she had always used them openly and without disguise, Mr. J. Foster directed the jury to acquit her, Fost. 439. The offence of taking money to assist the owners to stolen goods, has been considered already as an injury to public justice, ante 218, 9. Indictment. In cases of receiving goods in one part of the kingdom which are stolen in another, there was formerly some difficulty as to the place in which the venue should be laid. But this is entirely removed by 13 Geo. III. c. 31. s. 5. as it respects Scotland and England, which enacts, that the venue shall be laid in the jurisdiction in which the defendant was guilty of receiving, as if the original felony had been committed there. And by 44 Geo. III. c. 92. s. 8. after the union with Ireland, the same rule is laid down where the theft is committed in one of the three parts of the united kingdom, and the receiving takes place in another. If the principal offender be unknown, the indictment will be good if it so describe him; but wherever he is known, the averment ought to be according to the truth of the facts concerning him, 3 Campb. 264.; and therefore, where the principal was described in the indictment as unknown, and his name was inserted on the back of the bill as a witness before the grand jury, the judge directed an acquittal, 3 Campb. 264. The common form of the indictment for receiving stolen goods is to state, first, the fact of stealing of them by the principal, and then the receipt of them by the receiver, he then and there well knowing the goods to have been feloniously stolen. There is no occasion to state the time or place to the original stealing, it will suffice if it be stated to the offence of the receiver, 2 East P. C. 780. When the defendant is indicted as an accessary to the felony, it is sufficient to state that the principal was duly convicted without proceeding to aver his attainder, 2 Leach, 925. And in indictments on 22 Geo. III. c. 58. for the misdemeanour, it will be unnecessary to allege that the principal has not been convicted; as it is a mere negative averment which the prosecutor could not be called upon to substantiate in evidence, 2 Leach, 578. 5 T. R. 83. The words "well knowing" are a sufficient averment that the defendant knew the goods to be stolen, 2 Stra. 904. Com. Dig. Indictment. G. 6. If the indictment state that F. M. received the goods, "he the said T. M. knowing, &c." the words "he the said T. M.” in which the name is wrong, may be rejected as surplusage, 1 Leach, 109. When the indictment wants the word feloniously, in cases where an indictment for a misdemeanour would lie, it will be held good as for the lesser offence, 2 Sess. Cass. 10. As the mere having naval stores in possession is not an offence at common law, the indictment must conclude contrary to the form of the statute, or judgment will be arrested, 2 Ld. Raym. 1104. Evidence. In indictments on the statutes, on which the re- The evidence. ceiver may be punished, though the original felon is not convicted, the latter may be examined as a witness on the trial, 1 Leach, 418, 9. 2 Leach, 927. in notis. So on 4 Geo. I. c. 11. which makes it capital to take a reward for the purpose of assisting another to stolen goods, the thief may be sworn and give evidence; on which testimony Jonathan Wild was convicted, 1 Leach, 17. in notis. Where the receiver is indicted as accessary, to support the averment that the original felon was duly convicted, it is sufficient to give in evidence an examined copy of the record shewing that he was found guilty of the felony before a court of competent jurisdiction; and this will suffice however informal the proceedings may appear, and however the judgment may be erroneous. It is good against accessary till it be reversed, 3 Campb. 265.: but it is not conclusive; for he may dispute the guilt of the principal, and by shewing his innocence will necessarily establish his own, 1 Leach, 288. The Punishment will be found set forth in the recital of the statutes which regulate the offence. INDICTMENTS FOR LARCENY. GENERAL FORMS AGAINST PRINCIPALS AT COMMON LAW. General form at common law ing the proper Middlesex. (b) The jurors for our lord the king, upon their of indictment oath present, that A. B. late of, &c. laborer, on, &c. with force and for grand lar arms, at, &c. aforesaid, one silver spoon, (c) of the value of ten eeny, in steal- shillings, (d) of the goods and chattels of one J. L., (e) two brass ty of different candlesticks, of the value of two shillings, and two linen shirts, of the value of six shillings, of the goods and chattels of one E. W. then and there being found, feloniously (f) did steal,(ƒ) take (g) and carry away, (h) against the peace of our said lord the king, his crown and dignity. persons. (a) For stealing hay. (i) For stealing ten sacks of wheat. (j) For stealing ten sacks of wheat meal.(k) For stealing guineas. [Commencement and conclusion as supra] a small quantity of hay, of the value of sixpence, of the goods and chattels of G. W. then and there being found, feloniously, &c. [Commencement and conclusion as supra] ten sacks of wheat, of the value of twelve pounds, of the goods and chattels of one C. S. then and there being found, feloniously, &c. [Commencement and conclusion as supra] ten sacks of wheat meal, of the value of pounds of the goods and chattels of one C. H. then and there being found, feloniously, &c. [Commencement and conclusion as supra] thirteen pieces of the current gold coin of this realm called guineas, of the value of thirteen pounds, thirteen shillings, of the monies of the said A. B. in the same dwelling house, then and there being found, feloniously, &c. (a) See similar precedents, Cro. C. C. 246. Starkie, 426. where several persons' goods are taken at the same time, so that the transaction is the same, the indictment may properly include the whole, but not so if the takings were at different times, ante 1 vol. (b) As to the venue see ante 944, 5. as to the commencement ante 2 vol. 1, 2, 3. (c) As to the description of the property stolen see ante 947. (d) The value must be stated, 2 Hale, 182, 3. as to this statement ante 948. It seems advisable to state the value separately, 2 Hale, 183. Quere note 2 Starkie, (e) This allegation is proper, Cro. Eliz. 490. As to the owner see ante 948. when he is unknown he may be described as "a certain person to the jurors unknown," but not when he is known, 3 Campb. 264. (f) These terms are necessary, ante 950. (g) This word is material, 2 Hale, 184. ante 950. (b) See ante 950. 2 Hale, 184, |