Cook's case. An indictment for stealing a cow held not to be supported by evidence of stealing a heifer.

Upon an indictment for killing a sheep with intent to steal the carcase, it appeared that the prisoner was interrupted by the prosecutor while in the act of killing the sheep, which was wounded in the throat, the jugular vein being cut on one side, but not altogether through. The wound was sewn up, but the sheep died in two days. The jury having found that the prisoner gave the sheep a deadly wound, of which it died, with intent to steal the carcase, were directed to find the prisoner guilty. And, upon a case reserved, the Judges were unanimously of opinion that the prisoner was rightly convicted. (k)

In a case where the prisoner was indicted for stealing a cow, it appeared, upon the evidence, that the animal stolen was a female beast only two years and a half old that had never had a calf; and 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was referred to the consideration of the twelve Judges, who were of opinion, that as the statute 15 Geo. 2, c. 34, (now repealed), mentioned both heifer and cow, it must be considered as using one term in contradistinction to the other, in describing the several animals intended to be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. (7)

So where the prisoners were indicted under the same repealed statute for stealing five sheep, and upon the evidence they appeared to be lambs, and the prisoners were found guilty; the Judges, upon a case reserved, held the conviction wrong. (m) So where the prisoner was indicted for stealing a sheep, and it appeared that the animal stolen was a ewe, and the prisoner was found guilty; the Judges, upon a case reserved, held the conviction wrong; inasmuch as the statute specifies both ewe and sheep, and therefore the one really meant should be stated. (n) So where the prisoner was indicted for stealing one sheep, and it appeared that the animal stolen was under a year old, and the prosecutor said he should call it a lamb teg; Bolland, B., said, "Upon this evidence I must direct an acquittal. In this indictment, the animal in question ought to have been called a lamb. Animals of this kind are lambs, and not sheep till they are a year old. There was a case (0) lately before the twelve Judges, in which a man had been indicted at the Old Bailey, and tried before Mr. J. J. Parke for stealing "one sheep," and it appearing at the trial that the animal was a ewe, the twelve Judges held, that the prisoner could not be convicted, as the statute used the words "ram, ewe, sheep," &c., and that if the animal was in fact a ewe, the indictment must so describe it; and it was not enough to use the general term sheep. If a ewe is stolen, it must be called a ewe in

tried before Bayley, J., and the point was
considered by the judges (eleven being
present) in East. T. 1819, MS. Bayley, J.,
and Russ. & Ry. 387.

(k) Reg. v. Sutton, 2 Moo. C. C. R.
29, 8 C. & P. 291.

(1) Cook's case, Warwick Lent Ass. 1774, and Serjeants' Inn Hall, 1774. 1

p. 616.

Leach, 105. 2 East, P. C. c. 16, s. 48, (m) Rex v. Loom, R. & M. C. C. R. 160.

(n) Rex r. Puddifoot, R. & M. C. C. R. 247.

(0) Probably Rex v. Puddifoot.

the indictment; and so a lamb must be called a lamb; but a wether should be described as a sheep." (p)

But it has been recently held that an indictment for killing a sheep is supported by proof of killing a ewe or wether, although it cannot be proved which it was. On an indictment for killing a sheep with intent to steal the carcase, the prosecutor and his man swore that he had forty-one sheep, ewes and wethers, but neither of them could tell how many of each. One was missed, but they could not tell the sex, and no person by inspection of the skin and mutton could tell the sex. It was contended that the word "sheep" in the statute meant "wether," and that it lay on the prosecutor to prove that the sheep was a wether. (q) That as proof of stealing à ewe would not support an indictment for stealing a sheep; so proof of stealing a ram would not support such an indictment; the only proof therefore, which would support an indictment for stealing a sheep, would be stealing a wether. It was replied, that the word "sheep" would include either sex, until it was proved either to be a ewe or ram; and that the distinctive appellation of ewe and wether are not used till the animals are three years old, and that this animal was much younger; but the jury found that the distinctive appellation is used at any time after weaning, and found the prisoner guilty. (r) And, upon a case reserved on the question whether it was incumbent on the prosecutor upon this indictment to prove that the sheep stolen was a wether, the Judges all held that the word sheep in the statute was a generic term, including ram, ewe, and wether, and that the two former words might be rejected; except Parke, B., Vaughan, J., and Coleridge, J., who were of a contrary opinion. (s)

(p) Rex v. Birket, 4 C. & P. 216. (q) Rex v. Puddifoot, supra, and Rex v. Chalkley, Russ. & Ry. 258, were cited and relied upon.

(r) Patteson, J., also pointed out that the first act which made sheep-stealing a capital offence, viz., 14 Geo. 2, c. 6, enacted, that if any person shall feloniously steal one or more sheep or other cattle, or shall wilfully kill one or more sheep or other cattle with a felonious intent, &c., he shall suffer death, &c. In the subsequent year an act was passed, 15 Geo. 2, c. 34, which recited the clause in the former act, and that it was doubtful to what kind of cattle besides sheep the said act was meant to extend, and enacts," that the said act was meant and intended, and shall be construed, deemed, and taken to extend to any bull, cow, ox, steer, bullock, heifer, calf, or lamb, as well as sheep, and to no other cattle whatsoever." No doubt seems to have arisen at any time that the word "sheep," in the act 14 Geo. 2, c. 6, extended to sheep of all sexes, rams, ewes, and wethers; but that act, and 15 Geo. 2, c. 34, are expressly repealed by 7 & 8 Geo. 4, c. 27, which received the royal assent on the 21st of June, 1827; and, on the same day, the 7 & 8 Geo. 4, c. 29, received the royal assent, sec. 25 of which containing the words "ram, ewe, sheep, or lamb," gives rise to the present question. It may be observed, that in Puddifoot's case, if

it was for stealing a sheep it might have
been possible to treat the indictment as one
at common law, but in this case it cannot
be so treated, as it contains but one count,
which is for killing with intent to steal the

carcase.

(s) Reg. v. M'Culley, 2 Moo. C. C, R.
34. 2 Lew. 272. With the greatest pos-

sible
respect for the learned judges who de.
cided this case, it is submitted that it may
admit of some doubt whether this decision
be not at variance with several well estab-
lished rules in the construction of statutes.
First, it is a general rule that effect is to be
given to every word in a statute if that can
be done by any reasonable construction.
Now here the words "ram" and "ewe" are
rejected, although by construing the word
sheep as "wether," every word has a fitting
and full effect. Secondly, the words of
a statute are to be construed in their gram-
matical and natural sense. Rex ». Ditcheat,
9 B. & C. 176; Rex v. Great Bolton,
10 B. & C. 520; Williams v. Roberts,
5 Tyrw. 421; and it may be asked how a
construction, which renders two out of four
words entirely inoperative, can be construing
the clause in its grammatical and natural
sense. Thirdly, an expression which has
precedence in the order of the words must
be taken to have been used with reference
to things and persons of a higher order or
rank. Dwarr. on stat. 704, citing the
Warden of St. Paul's v. The Dean, 4

26 Geo. 3,
c. 71, as to
slaughtering
cattle.

Slaughtering cattle without a license, or

giving proper

notice, &c.,

made felony.

Where on an indictment for stealing a sheep it was doubtful on the evidence whether the animal stolen was a rig sheep or a wether; Alderson, B., held that it was quite immaterial whether the sheep was a rig or a wether, as the prisoner was equally liable to be convicted on this indictment whether it was one or the other. (t) But it has been held that an indictment for stealing a filly is not supported by evidence of stealing an animal more than three years old, as at three years of age it ceases to be a filly and becomes a mare. (u)

As the statute 26 Geo. 3, c. 71, was passed in order to remedy (according to the recital of the act) the facilities afforded to the stealing of cattle by persons of low condition, who kept houses or places for the purpose of slaughtering horses and other cattle, its provisions may be shortly mentioned in this place. It contains many enactments for the regulation of slaughter-houses; requires persons keeping them to take out a license, and to give notice, previous to the slaughtering and flaying of any cattle, to an inspector appointed as mentioned in the act, and to kill and flay the cattle only within certain hours. The eighth section enacts, that if any person keeping or using any slaughtering-house or place mentioned in the act, shall slaughter any cattle for any other purpose than for butcher's meat, or shall flay any cattle brought dead to such slaughtering-house or other place without a license, or without giving notice, or shall slaughter or flay at any time except within the hours limited by the act, or shall not delay slaughtering or killing according to the direction of the inspector properly authorized, such person so offending in either of these cases and being convicted shall be adjudged and taken to be guilty of felony, and shall be punished by fine and imprisonment and such corporal punishment by public or private whipping, or shall be transported for any term not exceeding seven years, as the court before whom the offender shall be tried and convicted, shall direct. (v) Destroying or The ninth section enacts, that persons keeping or using such burying hides, slaughtering-house or place, and throwing into lime, or rubbing therewith or with any other corrosive matter, or destroying, or burying hides of cattle slaughtered or flayed by them, shall be guilty of a misdemeanor, punishable by fine, imprisonment, and whipping. The statute also creates other offences of a smaller degree, and imposes penalties recoverable by summary proceedings before justices of the peace. (w) The fourteenth section provides, that the act

misdemeanor.

Exceptions.

Price, 65. According to this rule the
word ram is of a higher order than sheep:
and this is strengthened by the fact that the
two clauses immediately preceding, viz.,
"horse, mare," &c., "bull, cow," &c., clearly
place the animal of the higher order first.
It may be observed, also, that in this section
in every other instance the terms used are
the names of the species and not of the
genus; and particularly that in each of the
two preceding classes the order is first, mas-
culine; second, feminine; third, emasculated,
and fourth, young animals; and the same
order is evidently followed in the last class
in the first, second, and last instance; which
affords a very strong argument that it was
intended to be followed in the third also.
The only ground, on which the decision
seems to rest, is that the term "sheep" was
one of known signification, as including

ram, ewe, and wether, and that it must therefore be taken to have been used in that sense in the statute; the answer is that the rule is that where a word has a known signification, and such word is used generally in a statute, it shall be taken to be used in such sense. Smith v. Harman, 6 Mod. 142. Here the word is used not generally, but in connection with other words, which show that it was not intended to be used generally. C. S. G.

(t) Rex v. Stroud, 6 C. & P. 535.

(u) Reg. v. Edward Jones, Stafford Sum. Ass. 1839, Williams, J.

(v) See a precedent of an indictment against the keeper of a slaughter-house, for slaughtering a horse without giving the proper notice, 3 Chit. Crim. L. 721.

(w) See the statute, and 2 Burn's Just. tit. Horses, sec. 1.

shall not extend to any currier, felt-maker, tanner, or dealer in hides, who shall kill any distempered or aged cattle or purchase any dead cattle for the bona fide purpose of selling, using or curing the hides thereof, in the course of their respective trades; nor to any farrier employed to kill aged and distempered cattle; nor to any person who shall kill any of their own or other cattle, or purchasing any dead horse or other cattle, to feed their own hounds or dogs, or giving away the flesh for the like purpose. But it is further enacted, that if any collar-maker, currier, &c. or other person shall, under colour of their trades, knowingly or willingly kill any sound or useful horse gelding, mare, foal, or filley or boil or otherwise cure the flesh thereof for the purpose of selling it, such person shall be deemed an offender within the meaning of the act, and for every offence, forfeit any sum not exceeding twenty, nor less than ten pounds. (x)

(x) 26 Geo. 3, c. 71, s. 15. See also the 5 & 6 Wm. 4, c. 59, ss. 7 & 8, which impose penalties for keeping or using places for slaughtering horses not licensed

under the 26 Geo. 3, and also for employing at work, and not properly feeding horses or cattle intended to be slaughtered.

CHAPTER THE TWELFTH.

7 & 8 Geo. 4, c. 29, s. 26. Stealing, &c.. deer in any inclosed

OF STEALING AND DESTROYING DEER.

THE former statutes upon this subject are repealed by the 7 & 8 Geo. 4, c. 27.

The 7 & 8 Geo. 4, c. 29, s. 26, enacts "that if any person shall unlawfully and wilfully course, hunt, snare, or carry away, or kill, or wound, or attempt to kill or wound, any deer kept or being in the inclosed part of any forest, chase, or purlieu, or in any inclosed land ground, felony. wherein deer shall be usually kept, every such offender shall be

The like in certain unin

closed ground

punishable summarily.

guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny; (a) and if any person shall unlawfully and wilfully course, hunt, snare, or carry away, or kill, or wound, or attempt to kill or wound, any deer kept or being in the uninclosed part of any forest, chase, or purlieu, he shall for every such offence, on conviction thereof before a justice of the peace, forfeit and pay such sum, not exceeding fifty pounds, as to the justice shall seem meet; and if any person, who shall have Deer-stealing been previously convicted of any offence relating to deer, for which a pecuniary penalty is by this act imposed, shall offend a second time, by committing any of the offences hereinbefore last enumerated, such second offence, whether it be of the same description as the first offence or not, shall be deemed felony, and such offender, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny." (a)

in uninclosed ground after any other

offence as to deer, felony.

Where a prisoner was indicted under this section for a second offence, and the previous conviction was made by two justices, it was held good. And where such a conviction, after stating the venue in the margin in the usual way, set forth that on a certain day at a certain place in the county of Oxford, the prisoner was convicted for that he did on a certain day unlawfully use an engine for the purpose of killing deer in the forest of Wychwood, but omitted to state where or in what county the offence was committed, but proceeded to direct the penalty to be paid to the overseers of D. in the said county, "where the said offence was committed," it was held that this sufficiently shewed the offence to have been committed in the county of Oxford. (b)

Upon an indictment for a second offence against the 42 Geo. 3, c. 107, (now repealed) by killing deer, objections might be taken to the validity of the previous conviction. An indictment on that statute stated that the prisoner was convicted by a justice for the

(a) Ante, p. 1.

(b) Rex v. Weale, 5 C. & P. 135, Park, J. A. J. The second point decided in this

case is directly contrary to the decision in Rex v. Johnson, 1 Str. 261, and seems to have been wrongly decided. C. S. G.