Exceptions as to Scotland and Ireland. Removed by 7 & 8 G. 4. c. 29. s. 76. Offences committed at sea. Offences near the boundaries of counties, or on a voyage or journey through several counties. 7 G. 4. c. 64. s. 12. Offences committed on boundaries of counties may be tried in either county. Offences committed during a journey or voyage may be tried in any county through which the coach, &c. passed. A similar exception prevailed formerly where the original taking was in Scotland or Ireland. And it appears to have been holden, that a thief who had stolen goods in Scotland could not be indicted in the county of Cumberland, where he was taken with the goods. (y) But the 7 & 8 Geo. 4. c. 29. s. 76. enacts "that if any person having stolen or otherwise feloniously taken any chattel, money, valuable security, or other property what"soever in any one part of the united kingdom, shall afterwards "have the same property in his possession in any other part of "the united kingdom, he may be dealt with, indicted, tried, and "punished for larceny or theft in that part of the united kingdom "where he shall so have such property in the same manner as if "he had actually stolen or taken it in that part; and if any person "in any one part of the united kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever "which shall have been stolen or otherwise feloniously taken in any other part of the united kingdom, such person, knowing "the said property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, tried, and punished for "such offence in that part of the united kingdom where he shall 66 SO receive or have the said property, in the same manner as if it "had been originally stolen or taken in that part.” (z) 66 66 The 78th section of the same statute enacts "that where any "felony or misdemeanor punishable under this act shall be com"mitted within the jurisdiction of the Admiralty of England, the "same shall be dealt with, enquired of, tried, and determined in "the same manner as any other felony or misdemeanor committed "within that jurisdiction." Some general provisions have also been made with respect to offences committed near the boundaries of counties, and during a journey or voyage through several counties. The 7 Geo. 4. c. 64. s. 12., for the more effectual prosecution of offences committed near the boundaries of counties, or partly in one county and partly in another, enacts" that where any felony or misdemeanor shall be committed on the boundary or boun"daries of two or more counties, or within the distance of five "hundred yards of any such boundary or boundaries, or shall be "begun in one county and completed in another, every such fe66 lony or misdemeanor may be dealt with, enquired of, tried, "determined, and punished in any of the said counties, in the same manner as if it had been actually and wholly committed "therein." The 13th section enacts, "that where any felony or misde"meanor shall be committed on any person, or on or in respect of any property in or upon any coach, waggon, cart, or other carriage whatever employed in any journey, or shall be com"mitted on any person, or on or in respect of any property on (y) Rex v. Anderson and others, Carlisle Sum. Ass. 1763, and before the Judges, Nov. 1763, 2 East. P. C. c. 16. s. 156. p. 772. (z) The statutes 45 Geo. 3. c. 92. and 54 Geo. 3. c. 186. make provision for the more easy apprehending and bringing to trial offenders escaping from one part of the united kingdom to the other, and from one county. to another. "board any vessel whatever employed on any voyage or journey "upon any navigable river, canal, or inland navigation, such "felony or misdemeanor may be dealt with, inquired of, tried, "determined, and punished in any county, through any part "whereof such coach, waggon, cart, carriage, or vessel shall have passed, in the course of the journey or voyage during which such "felony or misdemeanor shall have been committed, in the same "manner as if it had been actually committed in such county; "and in all cases where the side, centre, or other part of any "highway, or the side, bank, centre, or other part of any such "river, canal, or navigation shall constitute the boundary of any "two counties, such felony or misdemeanor may be dealt with, "inquired of, tried, determined, and punished in either of the "said counties, through or adjoining to, or by the boundary of any "part whereof such coach, waggon, cart, carriage, or vessel shall "have passed, in the course of the journey or voyage during "which such felony or misdemeanor shall have been committed, "in the same manner as if it had been actually committed in such "county." Rule that where the sto person, it is incumbent on such person to prove how he came by it. With regard to the evidence in cases of larceny, it generally Evidence. consists, (unless the prisoner is detected in the fact,) of proof of the felony having been committed, and of the goods stolen having len property is been found shortly afterwards in the possession of the prisoner; found in the and upon such proof the general rule will attach, that wherever possession of a the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent on that other to prove how he came by it; otherwise the presumption is, that he obtained it feloniously. (a) This rule, founded on the necessity of the case, which cannot admit offences of this kind to go unpunished, wherever positive and direct evidence is wanting, of the guilt of the party, will probably seldom lead to a wrong conclusion if due attention be paid to the particular circumstances by which such presumption may be weakened, or entirely destroyed. (b) Amongst the most prominent of these will be the length of time which elapsed between the loss of the property and the finding of it in the possession of the prisoner; the probability of the prisoner's having been, at the time of the theft, near the place from which the property was taken; and more especially the conduct of the prisoner from first to last, with respect to the property found in his possession, and the charge brought against him of having obtained it by stealing. Where all that can be proved concerning property found in the Identity of the property. (a) 2 East. P. C. c. 16. s. 93. p. 656. Phil. on Evid. 129, 130. (b) That it will sometimes, like every other rule of human institution, fail to guide rightly must be admitted. Lord Hale mentions a case, which he says was tried before a very learned and wary Judge, where a man was condemned and executed for horsestealing, upon proof of his having been apprehended with the horse shortly after it was stolen; and afterVOL. II. N wards it came out that the real thief Value of the property. The value must be of goods stolen at the same time. possession of a supposed thief is that it is of the same kind as that which has been lost, this will not in general be deemed sufficient evidence of its having been feloniously obtained; and some proof of identity will be required. But where the fact is very recent, and the property consists of articles, the identity of which is not capable of strict proof, from the nature of them; the conclusion may be drawn that the property is the same, unless the prisoner can prove the contrary. (c) Thus, if a man be found coming out of another's barn, and upon his being searched, corn be found upon him, of the same kind as that in the barn, the evidence of the guilt will be pregnant: and cases have frequently occurred where persons employed in carrying sugar and other articles from ships and wharfs have been convicted of larceny, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places; although the identity of the property, as belonging to such and such persons, could no otherwise be proved. (d) Evidence that the property stolen is of some value will also be material, as if it be of no value, it is not a subject in respect of which larceny can be committed. (e) But property may be of value to the owner though not of general value. Thus, where the indictment was for stealing pieces of paper with available stamps thereon, and it appeared that the pieces of paper were re-issuable notes of a country bank which had been paid, and were in transitu, for the purpose of being re-issued, it was decided that they were the valuable property of the country bankers, (though not promissory notes within 2 Geo. 2. c. 25.) and subjects of larceny. (f) With respect to those larcenies which are aggravated by the amount of the property stolen, as in the case of stealing in a dwelling-house to the value of 57. it should appear that the property, the value of which is taken into the computation, was all stolen at the same time. For though in former times when the distinction between grand and petty larceny existed, it appears to have been the received opinion in the older books that a man stealing, at several times, several parcels of goods, each under the value of twelvepence, but amounting in the whole to more, from the same person, might have been convicted of grand larceny; (g) the severity of that rule became obsolete: and it was afterwards settled that the value of the property stolen must not only be, in the whole, of such an amount as the law required to constitute grand larceny, but that the stealing must be to that amount at one and the same particular time. For, in fact, where things are stolen at different times, there are different acts of stealing; and no number of petit larcenies would amount to a grand larceny, nor any number of grand larcenies, where it depended on the value of the property stolen, to a capital offence. (h) But it seems (c) 2 East, P. C. c. 16. s. 93. p. 657. (e) Phipoe's case, ante, 147. Com. (f) Clarke's case, 2 Leach, 1036. Ante, 145. (g) See 1 Hale 531. and the authorities there cited. (h) 1 Hawk. P. C. c. 33. s. 50, 51. that if the property of several persons lying together in one bundle or chest, upon the same table, or even in the same house, be stolen together at one time, the value of the whole may be put together; for such stealing is one entire felony. (i) In a case where the prisoner was indicted upon the statute of Goods not 12 Anne, c. 7. now repealed, for stealing in a dwelling-house to produced. the amount of forty shillings, and the goods found were not proved to amount to forty shillings; the court left it to the jury to consider, upon the facts of the case, whether the prisoner had not stolen the rest of the things which the prosecutor lost, as well as those which had been produced. (k) A prisoner indicted for larceny cannot be convicted merely Verdict. of a trespass for though larceny, as has been before stated, includes a trespass, yet if, upon an indictment, the taking appear not to be felonious, though amounting to a trespass, the defendant is entitled to a general acquittal. (7) 66 66 Jury not to enquire of the By the 7 & 8 Geo. 4. c. 28. it is enacted, "that where any person shall be indicted of treason or felony, the jury empanelled to try such person shall not be charged to enquire prisoner'slands "concerning his lands, tenements, or goods, nor whether he fled "for such treason or felony." For the punishment of simple larceny, the 7 & 8 Geo. 4. c. 29. s. 3. enacts," that every person convicted of simple larceny, or "of any felony hereby made punishable like simple larceny, shall, "(except in the cases hereinafter otherwise provided for,) be liable, "at the discretion of the court, to be transported beyond the seas "for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or "thrice publicly or privately whipped, (if the court shall so think "fit), in addition to such imprisonment." 66 The fourth section enacts, "that where any person shall be "convicted of any felony or misdemeanor punishable under this "act, for which imprisonment may be awarded, it shall be lawful "for the court to sentence the offender to be imprisoned, or to "be imprisoned and kept to hard labour, in the common gaol or "house of correction, and also to direct that the offenders shall "be kept in solitary confinement for the whole or any portion or "portions of such imprisonment, or of such imprisonment with "hard labour, as to the court in its discretion shall seem meet." The sixty-first section of the same statute enacts, "that in the "case of every felony punishable under this act, every principal "in the second degree, and every accessory before the fact shall "be punishable with death or otherwise, in the same manner as "the principal in the first degree is by this act punishable; and "every accessory after the fact to any felony punishable under this "act, (except only a receiver of stolen property) shall, on convic 2 East, P. C. c. 16. s. 136. p. 740. (i) 1 Hale 531. 2 East. P. C. c. 16. s. 136. p. 740, 741. (k) Hamilton's case, 1 Leach 351. &c. nor whe ther he fled. Punishment for simple larceny. The court may for all offences act order hard labour or solitary confine within this ment. Principals in the second de gree, and accessories. Abettors in "tion, be liable to be imprisoned for any term not exceeding two years; and every person, who shall aid, abet, counsel, or promisdemeanors. «cure the commission of any misdemeanor punishable under this "act shall be liable to be indicted and punished as a principal "offender." Attainder of another crime not pleadable. If a person under sentence for another crime is convicted of fe may pass a se cond sentence, to commence after the ex The 7 & 8 Geo. 4. c. 28. s. 4. enacts, "that no plea setting "forth any attainder shall be pleaded in bar of any indictment, "unless the attainder be for the same offence as that charged in "the indictment." The tenth section enacts, "that, wherever sentence shall be passed for felony on a person already imprisoned under sen"tence for another crime, it shall be lawful for the court to award "imprisonment for the subsequent offence, to commence at the lony, the court expiration of the imprisonment to which such person shall have "been previously sentenced; and where such person shall be "already under sentence, either of imprisonment or of transportation the court, if empowered to pass sentence of trans"portation, may award such sentence for the subsequent offence, "to commence at the expiration of the imprisonment or transportation to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of "those punishments could be otherwise awarded." piration of the first. Punishmentfor a subsequent felony. Form of indictment for a subsequent felony. Evidence of first convic tion. Restitution of stolen property to the prosecutor. 66 The 11th section of the same statute reciting that it was expedient to provide for the more exemplary punishment of offenders who commit felony after a previous conviction for felony, whether such conviction shall have taken place before or after the commencement of this act, enacts, "that if any person shall be convicted of any felony, not punishable with death, committed after a previ"ous conviction for felony, such person shall, on such subsequent "conviction, be liable, at the discretion of the court, to be transcc ported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four "years, and, if a male, to be once, twice, or thrice publicly or "privately whipped (if the court shall so think fit) in addition to "such imprisonment; and in an indictment for any such felony "committed after a previous conviction for felony, it shall be "sufficient to state that the offender was, at a certain time and "place, convicted of felony, without otherwise describing the pre"vious felony; and a certificate containing the substance and "effect only (omitting the formal part) of the indictment and con"viction for the previous felony, purporting to be signed by the "clerk of the court or other officer having the custody of the re"cords of the court where the offender was first convicted, or by "the deputy of such clerk or officer, (for which certificate a fee "of six shillings and eight-pence and no more shall be demanded or taken) shall, upon proof of the identity of the person of the "offender be sufficient evidence of the first conviction, without "proof of the signature or official character of the person ap66 pearing to have signed the same.” of en The 57th section of the 7 & 8 Geo. 4. c. 29. for the purpose couraging the prosecution of offenders, enacts, "that if any person "guilty of any such felony or misdemeanor as aforesaid, in stealing, |