c. 29, s. 25; but it is now transportation for life, 2 & 3 W. 4, c. 62, s. 1, and, if the Court think fit, imprisonment with or without hard labour for not more than four years nor less than one, previous to transportation. 3 & 4 W. 4, c. 44, s. 3; see 1 Arch. P. A. 349 n.

Evidence.

To maintain this indictment, the prosecutor must prove a larceny of the ewe, in the ordinary way, as directed ante, p. 156. See R. v. M'Numee, ante, p. 162. Where the proof was, that the prisoner removed a sheep from the middle of the field where it was grazing, to the gripe of a ditch, and there killed it, and stole a part of the carcase, and the jury found that he killed the sheep with intent to steal a part of the carcase: the judges held that this removal of the sheep for the purpose of killing it, was not such a taking and carrying away as would constitute a stealing of the sheep. R. v. John Williams, Ry. & M. 107. But where, upon an indictment for horse-stealing, it appeared that the prisoner went to an inn on a fair day, and desired the ostler to bring out his horse; the ostler saying he did not know it, the prisoner went with him to the stables, pointed to the horse in question, saying, "that is my horse, saddle him ;" the ostler did so, and the prisoner attempted to mount him, but the horse being frightened at some noise, would not stand still; the prisoner then desired the ostler to lead the horse out of the yard that he might mount him, and the ostler did so; but before the prisoner could mount, a person who knew the horse came up, and the prisoner was secured: Garrow, B. held this to be sufficient to constitute the felony. R. v. Pitman, 2 Car. & P. 423. Upon the trial of an indictment for horse-stealing, the prosecutor stated that he had agisted the horse on the land of another person at some distance, and that hearing from that person of the loss of the horse, he went to the field where the horse had been put to feed, and discovered he was gone; but neither the agister nor his servant was called as a witness: Gurney, B. held that this was not sufficient evidence of the loss of the horse, for non constat but that the prisoner might have obtained possession of the horse honestly. R. v. Yend and Haines, 6 Car & P. 176.

Where the animal is specifically mentioned in the statute, a description of it by any other name in the indictment will be bad, even although the name used be a generic name for the animal. Thus, where upon an indictment for stealing a "sheep," it appeared in evidence that it was an ewe, the judges held that the evidence did not support the indictment, as the statute mentions both ewes and sheep. R. v. Puddifoot, Ry. & M. 247. So, where upon an indictment for stealing five sheep, it appeared in evidence that they were lambs, the judges held that the evidence did not support the indictment, for the same reason.

R.

v. Loom, Crisp and Baxter, Ry. & M. 160; S. P. R. v. Birket, 4 Car. & P. 216. So, evidence of stealing a heifer will not support an indictment for stealing a cow. R. v. Cooke, 2 East, P. C. 617. Upon a former statute against horse stealing, (2 & 3 Edw. 6, c. 33,) where the words were "horse, gelding or mare," it was holden that evidence of stealing a colt or filly or foal, would support an indictment for stealing a horse, gelding or mare respectively; R. v. Welland, R. & Ry. 494; but an indictment for stealing a colt, not saying whether it was a horse or a mare, was holden by the judges to be insufficient upon the above statute. R. v. Henry Beany, R. & Ry. 416. In analogy to these cases, evidence of stealing a foal, would support an indictment on the present statute for stealing a colt or filly; but evidence of stealing a colt or filly, would not support an indictment for stealing a horse, gelding or mare, because “colt" and "filly" are specifically named in the statute. So an indictment for stealing a foal, not saying whether it was a colt foal, or a filly foal, would be bad, as an indictment on the statute. So, as wethers are not specifically mentioned in the statute, they may be described in the indictment as "sheep," and in practice it is usual to describe them as "two wether sheep of the price of -, and two other sheep of the price of And where it

is doubtful whether the animal stolen comes within one or other description in the statute, (as very frequently happens,) both descriptions may be used, in the same manner.

The section of the statute on which the above indictment is drawn, must be understood as extending only to the stealing of cattle which are alive; stealing a dead sheep, &c. is but common larceny, and the indictment should either state it to be dead, or describe it as so much mutton. See 1 Arch. P. A. 351.

4. Indictment for stealing Fixtures, or Lead, &c. fixed to Buildings, &c.

Same as the form ante, p. 156, to the words] in the county aforesaid, fifty pounds weight of lead [“ any glass or wood work belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metal or other material,"] of the value of ten shillings, the property of C. D., and then and there being fixed to the dwellinghouse ["any building whatsoever"] of the said C. D. there situate, feloniously did steal, take, and carry away against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. 1 Arch. P. A. 403. And see the form of an indictment for ripping, cutting or breaking such sand, &c., with intent to steal it, Id. 403, 404.

Felony, same punishment as for simple larceny, 7 & 8 G. 4, c. 29, s. 44. See ante, p. 156.

Evidence.

To maintain this indictment, the prosecutor must prove: 1. The larceny of the lead, as in ordinary cases. See ante, p.156.

2. That at the time it was taken, it was fixed to the dwellinghouse of C. D. situate as described in the indictment. The statute mentions " any building whatsoever;" but care must be taken that there be no material variance, as to the description of the building, between the indictment and proof.

5. Indictment for stealing from the Person.

Same as the form, ante, p. 156, to the words] in the county aforesaid, ten pieces of the current gold coin of the realm, called sovereigns, of the value of ten pounds, and one silver watch of the value of five pounds, [" chattel, money, or valuable security,”] of the monies, goods, and chattels of C. D., from the person of the said C. D., then and there feloniously did steal, take, and carry away against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity.

Felony, transportation for life, or for not less than seven years; or imprisonment, with or without hard labour, for not more than four years, and (if the Court think fit) whipping. 7 & 8 G. 4, c. 29, s. 6.

Evidence.

To maintain this indictment, the prosecutor must prove :

1. A larceny of the property stated in the indictment, or some of it, as directed, ante, p. 156; except that the taking must be actual, and not merely constructive; and the carrying away must be, not that mere removal of the property which is sufficient in the case of simple larceny, (see ante, p. 165,) but an actual severance of it from the person of the prosecutor. Where it appeared that the prisoner drew a pocket-book out of an inside breast pocket of a coat the prosecutor had on him ; it was drawn out about an inch above the top of the pocket; but the prosecutor suddenly putting his hand up, the prisoner let go the book, whilst it was still about the person of the prosecutor, and the book fell back again into the pocket: six of the judges held, that this, although a sufficient asportation to constitute a simple larceny, was not sufficient to warrant a conviction of stealing from the person, because from first to last the book remained about the person of the prosecutor; four of the judges were of a different opinion. R. v. Thompson, Ry. & M. 78.

It is immaterial whether the offence be committed by stealth or by force. If the facts, indeed, clearly amount to a robbery,

the prisoner, no doubt, should be prosecuted for that offence; but if it be doubtful whether the force used is sufficient to constitute robbery, it is better to indict him for this offence, as it has been decided that upon an indictment for stealing from the person, the prisoner may be convicted, although the facts proved amount in law to a robbery. R. v. Joseph Pearce, R. & Ry. 174. R. v. Charles Robinson et al., R. & Ry. 321.

2. It must appear that the property was in the personal possession of the prosecutor, at the time it was stolen. Whether a taking, not actually from the person of the prosecutor, but in his presence, would be sufficient, has never, I believe, been decided.

If a larceny be proved, but not a stealing from the person, the prisoner may be convicted as for a simple larceny.

6. Indictment for stealing in a Dwelling-house, to the value of £5.

Same as the form, ante, p. 156, to the words] in the county aforesaid, one silver pint pot of the value of forty shillings, and nine pewter dishes of the value of twenty shillings, [" chattel, money, or valuable security,"] of the goods and chattels of C. D., in the dwelling-house of the said C. D. there situate, then and there being found, then and there in the said dwelling-house feloniously did steal, take, and carry away against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. Where the words "there situate" were omitted, the judges held that the house must be considered as stated to be in the place laid as special venue, and must be proved to be situate there accordingly. R. v. Napper, Ry. & M. 44.

Felony, 7 & 8 G. 4, c. 29, s. 12, transportation for life, 2 & 3 W. 4, c. 62, s. 1, and (if the Court think fit) imprisonment, with or without hard labour, for not more than four years nor less than one, previous to transportation. 3 & 4 W. 4, c. 44, s. 3.

Evidence.

To maintain this indictment, the prosecutor must prove : 1. The larceny, as in ordinary cases; (see ante, p. 156;) but the value of the goods must be proved to be 51. at the least. Upon an indictment for stealing 68 yards of lace in a dwellinghouse, it appeared that the prisoner, who was shopman to the prosecutor at Abingdon, sent the lace in a parcel by the coach from that place to London; the lace was in several pieces, none of which separately was worth 5l., but the whole together was worth much more; and as those pieces might have been stolen at different times, the prisoner's counsel suggested that in favorem vita they should be taken to be so: but Bolland, B. said that he could not assume that, as it appeared that the prisoner

brought them all out of the prosecutor's house at one time, and sent them in one parcel to London. R. v. Jones, 4 Car. & P. 217. If you fail in proving the goods to be of the value of 5l., still the prisoner may be convicted of the simple larceny.

2. That it was committed in the dwelling-house of C. D., situate as described in the indictment. And in this respect, by stat. 7 & 8 G. 4, c. 29, s. 13, no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house, "unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and inclosed passage leading from the one to the other." See R. v. Burrowes, R. & Ry. 274. 1 Arch. P. A. 312. Where it appeared that the prosecutor formerly lived with his family in a house in St. Martin's Lane, where he also carried on his business as an upholsterer; but he afterwards went with his family to live in the Haymarket, keeping the house in St. Martin's Lane as a warehouse and workshop, two of his workmen sleeping in it to take care of it: a larceny being committed in it, and the offender convicted as for a larceny in a dwelling house, the judges held, that it could not be deemed the dwelling house of the prosecutor. R. v. Flannagan, R. & Ry. 187. Where it appeared that the larceny was committed in a bed-room over the stable, which was not under the same roof with the dwelling-house, nor communicated with it, this was holden not to be a stealing in the dwelling-house. R. v. Turner, 6 Car. & P. 407. Care must be taken to describe the ownership of the house correctly, as in burglary. See 1 Arch. P. A. 312-316.

The goods also must appear to have been under the protection of the house, at the time of the larceny. Where it appeared that the prisoner, Taylor, who lodged in the house of one Wakefield, having met an acquaintance at a public house, brought him home to sleep at his lodgings, and during the night stole his watch from the bed-head; neither Wakefield nor his family knew of the prosecutor being there: upon an indictment for this offence, charging it as a larceny in the dwelling-house of Wakefield, it was doubted at first whether the prisoner could be convicted of a larceny in the dwelling-house, as it had been before decided that the statute did not extend to a man stealing in his own house; but a majority of the judges held, that the goods, although the property of the lodger's guest, were under the protection of the dwelling house, and that the prisoner might therefore be convicted of stealing in the dwelling house. R. v. John Taylor, R. & Ry., 418. So, where the prosecutrix, residing at No. 38, Rupert Street, expected goods to be sent to her from Hanwell; they arrived in London, and were carried from the coach office, by the regular porter, to the house of one Davidson,