taking, obtaining, or converting, or in knowingly receiving any chat"tel, money, valuable security, or other property whatsoever, shall "be indicted for any such offence, by or on the behalf of the owner "of the property, or his executor or administrator, and convicted "thereof, in such case the property shall be restored to the owner "or his representative; and the court, before whom any such person shall be so convicted, shall have power to award, from "time to time, writs of restitution for the said property, or to or 66 "der the restitution thereof in a summary manner: Provided Except in cer"always, that if it shall appear, before any award or order made, tain cases. "that any valuable security shall have been bond fide paid or dis"charged by some person or body corporate liable to the payment "thereof; or, being a negotiable instrument, shall have been boná "fide taken or received by transfer or delivery, by some person or body corporate for a just and valuable consideration, without any "notice, or without any reasonable cause to suspect that the same "had by any felony or misdemeanor been stolen, taken, obtained, "or converted as aforesaid, in such case the court shall not award "or order the restitution of such security." CHAPTER THE TENTH. OF STEALING FROM THE PERSON. 7 & 8 Geo. 4. WITH respect to such stealing from the person as does not amount c. 29. s. 6. Repealed stat. 48 Geo. 3. c. 129. s. 2. Held that the indictment upon the re 48 Geo. 3. c. 129. need not to robbery, the statute 7 & 8 Geo. 4. c. 29. s. 6. enacts" that if any person shall steal any chattel, money, or valuable security "from the person of another, or shall assault any other person "with intent to rob him, or shall, with menaces or by force de"mand any such property of any other person with intent to steal "the same, every such offender shall be guilty of felony, and "being convicted thereof, shall be liable, at the discretion of the "court, to be transported 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." (a) upon By the repealed statute 48 Geo. 3. c. 129. s. 2. it was enacted, "that any person who should feloniously steal, take, and carry away any money, goods, or chattels, from the person of any "other, whether privily without his knowledge, or not, but without "such force, or putting in fear, as is sufficient to constitute the "crime of robbery, should be liable to the punishments therein " mentioned." In a case upon this repealed statute it was holden that the indictment need not negative the force or fear necespealed statute sary to constitute robbery, and that, though it should appear the evidence that there was such force or fear, the punishment imposed by that statute might be inflicted. The prisoner was indicted for stealing from the person : the indictment did not state that there was no such force or fear as is neof force or fear cessary to constitute robbery; and it appeared in evidence that such force and fear existed. Lord Ellenborough, before whom the prisoner was tried, saved the point whether he could go beyond the common law punishment; and, upon conference, all the Judges held that he might; and that, where force or fear were not charged in the indictment, the existence of force or fear would not exempt the party from the statutable punishment; and as all that the indictment charged was proved, the proving what made the offence greater would not entitle the prisoner to a smaller punishment. (b) negative force or fear, and that the existence was no answer to the charge. (a) This offence was once capital by the 8 Eliz. c. 4. s. 1 & 2. (b) Rex v. Pearce, East. T. 1810. MS. Bayley, J., and Russ. & Ry. 174. A more recent case upon the same repealed statute was to the same effect. The indictment was for stealing from the person, and it did not negative force or fear; and, upon the evidence, the facts amounted to a clear case of highway robbery. The learned Judge, before whom the prisoner was tried, doubted whether he ought not to direct an acquittal, and detain the prisoner to be indicted for the robbery; but he let the trial proceed, and, on conviction, sentenced the prisoner to transportation for life: but he made a case upon the questions, first, Whether the indictment should not have negatived force and fear; secondly, Whether the existence of force and fear was not an answer to the charge as laid; and, thirdly, Whether the statutable punishment could be inflicted: And the Judges were unanimous that the indictment need not, and ought not to negative force or fear, that the existence of such force or fear was no answer to the charge, and that the statutable punishment was rightly inflicted. (c) stolen must be To constitute a stealing from the person, the thing taken must The thing be completely removed from the person. In a case where, upon completely the evidence of the prosecutor, it appeared that his pocket book removed from was drawn from his waistcoat pocket an inch above the top of the the person. pocket, but was returned immediately again into the pocket, probably by the quick motion of the prosecutor's arm upon the hand and arm of the thief, with whom and his accomplices the prosecutor had a severe struggle before he was secured, it was held by a majority of the Judges, that the prisoner was not rightly convicted of stealing from the person, because from first to last the book remained about the person of the prosecutor. But the Judges all agreed that the simple larceny was complete, and sentence of transportation for life having been passed, a pardon, on condition of transportation for seven years, was recommended. (d) Principals in the second degree, and accessories before the fact, are punishable in the same manner as principals in the first degree and accessories after the fact, (except receivers) are liable to be imprisoned for any term not exceeding two years. (e) (c) Rex v. Robinson, cor. Wood, B., and considered by the Judges, Hil. T. 1817. MS. Bayley, J., and Russ. & Ry. 321. (d) Rex v. Thompson, Hil. T. 1825, Ry. & Mood. C. C. 78. (e) 7 & 8 Geo. 4. c. 29. s. 61. As to the proceedings for the trial of accessories, see 7 Geo. 4. c. 64. s. 9, 10, 11. Addenda to the first volume. Principals in the second decessories. gree, and ac 7 & 8 Geo. 4. c. 29. s. 25. Principals in CHAPTER THE ELEVENTH. OF STEALING HORSES, COWS, sheep, &c. WE have already seen that larceny may be committed of such domestic creatures as are fit for food; (a) and it remains only to notice in this place the statutable provision which, for the better protection of some of the more valuable domestic animals, makes persons, found guilty of stealing them, liable to capital punish ment. 66 The statute 7 & 8 Geo. 4. c. 29. s. 25. enacts" that if any per"son shall steal any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, or "shall wilfully kill any of such cattle with intent to steal the carcase, or skin, or any part of the cattle so killed, every such of"fender shall be guilty of felony, and being convicted thereof shall "suffer death as a felon." 66 Principals in the second degree, and accessories before the fact, the second de- are punishable in the same manner as principals in the first degree and accessories after the fact, (except receivers) are liable to be imprisoned for any term not exceeding two years. (b) gree and ac cessories. Points relating to horse-steal ing arise as in larcenies of other property. Rawlins's case. The prisoner was indicted for stealing lambs, and the evidence was that the carcases were found in the The various points upon the definition of larceny, which have been considered in the chapter treating generally of that offence, (c) relate as well to the stealing of horses as of other property; and we may remember a case of considerable nicety, where, upon a finding by the jury that the prisoners took some horses, merely with intent to ride, and afterwards to leave them, and not to return, or make any further use of them, it was holden that such taking amounted to a trespass only, and not to larceny. (d) The doctrine that any the least removal of the thing feloniously taken, will constitute larceny, (e) applies to the stealing of sheep, though part of the animal only be taken. In a case where the prisoner was indicted for stealing six lambs, without any count for killing with intent to steal the carcase or any part thereof, the evidence was that the carcases of the lambs, without their skins, were found upon the premises where they had been kept, and that (a) Ante, p. 150. (b) 7 & 8 Geo. 4. c. 29. s. 61. As to the proceedings in respect to accessories, see 7 Geo. 4. c. 64. s. 9, 10, 11. Addenda to the first volume. 97. (c) Ante, 92. et sequ. (d) Rex v. Phillips and Strong, Ante, (e) Ante, 95. the prisoner had sold the skins on the morning after the offence was committed, upon which the jury were directed to find the prisoner guilty, on the ground that the lambs must have been removed from the fold. But a doubt having occurred whether, as the statute 14 Geo. 2. c. 6., now repealed, specified feloniously driving away, and feloniously killing with intent to steal the whole or any part of the carcase, as well as feloniously stealing in general, (although there must, in such cases, be some removal of the thing,) it did not intend to make these different offences; the case was submitted to the consideration of the Judges, who held the conviction right; as any removal of the thing feloniously taken constitutes larceny. (f) It was decided upon the repealed statute 14 Geo. 2. c. 6. that cutting off part of a sheep whilst it was alive with intent to steal such part would support an indictment for killing with intent to steal, if the cutting off must occasion the death of the animal, especially if the offender hid the part cut off, and meant to fetch it away at a future time. The indictment was for killing a lamb with intent to steal part of the carcase; and it appeared that the prisoner cut off a leg from the animal whilst it was alive, and carried it away before the animal died; but that the cutting necessarily caused the death of the animal. The learned Judge before whom the prisoner was tried thought the giving the death wound before the larceny sufficient, and that the animal might be considered as killed by relation from that time, or if not, that the intention to fetch away the leg was an intent to continue the larceny thereof, but he saved the point for the opinion of the Judges, who were unanimous, principally upon the first point, that the conviction was right. (g) ground of the owner, and the skins only taken away: and a convicevidence was tion upon this holden good. cow held not to be supported by evidence of stealing a heifer. In a case where the prisoner was indicted for stealing a cow, it Cook's case. appeared, upon the evidence, that the animal stolen was a female An indictment beast only two years and a half old that had never had a calf; and for stealing a that a female beast of the cow kind, how old soever, if she have never had a calf, is always called a heifer. An objection was therefore taken, by the counsel for the prisoner, that the charge in the indictment was not supported by the evidence; and, the prisoner being found guilty, the question was referred to the consideration of the twelve Judges, who were of opinion, that as the statute 15 Geo. 2. c. 34., now repealed, mentioned both heifer and cow, it must be considered as using one term in contradistinction to the other, in describing the several animals intended to be protected; and that, as the beast stolen was not therefore such as was described in the indictment, the prisoner was entitled to an acquittal. (h) As the statute 26 Geo. 3. c. 71., was passed in order to remedy 26 Geo. 3. c. (according to the recital of the act) the facilities afforded to the 71. as to stealing of cattle by persons of low condition, who kept houses slaughtering (f) Rawlins's case, Sarum Sum. Ass. 1800, and Mich. T. 1800. East. P. C. c. 16. s. 48. p. 617. 2 (g) Rex v. Clay. The prisoner was tried before Bayley, J., and the point was considered by the Judges (eleven being present) in East. T. 1819. MS. (h) Cook's case, Warwick Lent cattle. |