"The argument upon this part of the case has arisen from the "practice that has prevailed of describing the particular sum for "which the note is payable, and that the money secured thereby "is unsatisfied. But the answer to such an argument is this, that "whether it be payable for one sum or for another it is equally a "bank-note, and a bank-note is the subject of larceny. There"fore, this is not a good objection, that the bank-note is not suffi"ciently set out. No further description is necessary than is required for other chattels, which are the subject of larceny; and "under the general name of bank-note, the particular species, if "the sum for which the note is payable can be said to constitute "a species, may be proved." (e) bill. It was holden that where the thing stolen was described as a Bank Postbank post-bill," and was not set out, the court could not take judicial notice that it was a promissory note, or that it was such an instrument as under the statute 2 Geo. 2. c. 25. might be the subject of larceny, though it were described as made for the payment of money. (f) It appears to have been determined, that notes, bills, &c. within the statute 2 Geo. 2. c. 25., now repealed, should be laid to be the property of A. B., and ought not to be described as chattels; but it was also holden, that upon an indictment which laid them to be "the property and chattels of S. S..," the word chattels might be rejected as surplusage. (g) Bank-notes, &c. should not be described as chattels. Before the statute 7 & 8 Geo. 4. c. 29. s. 5. which abolishes Cattle and the distinction between grand and petty larceny, it was holden other animals. that an indictment for stealing a sheep or any other cattle must ascribe to it some value, as, unless the value exceeded 12d., it would not be a capital offence. Thus, where the prisoner had been convicted of stealing a cow, a case was reserved, on the ground that no price or value was ascribed to the cow, in the indictment; and a majority of the Judges held, that though the statute in terins made the stealing any sheep, cow, &c. felony without clergy, yet it ought, in construction and by analogy to the statute which took away clergy, to be confined to what exceeded the value of 12d., and therefore that a capital sentence could not be passed. (h) An indictment for stealing a dead animal should state that it was dead; for upon a general statement that a party stole the animal, it is to be intended that he stole it alive. (i) And à fortiori, upon an indictment for stealing a live animal, evidence cannot be given of stealing a dead one. Thus, upon an indictment for stealing live tame turkies, if the evidence is that they were dead when stolen, the indictment will not be supported. The prisoners stole four live tame turkies in Cambridgeshire, killed them there, and (e) Rex v. Johnson, 3 M. & S. 539, 552, 553. (f) Rex v. Chard, Trin. T. 1822. Russ. & Ry. 488. Bank post-bills were not in use until two years after the 2 Geo. 2. c. 25. had passed. (g) Rex v. Sadi and Morris, O. B. 1787, and afterwards before all the Judges, 2 East, P. C. c. 16. s. 37. p. (h) Rex v. Peel, Mich. T. 1819. (i) By Holroyd, J., in Rex v. Edwards, Hil. T. 1823. MS. Bayley, J., and Russ. & Ry. 497. Conclusion of an indictment on 2 Geo. 2. c. 25. What defects shall not vitiate an in dictment after verdict or otherwise. carried them dead into Hertfordshire. They were indicted in Hertfordshire for stealing four live tame turkies; and upon a case reserved, the Judges held that the word live in the description could not be rejected as surplusage, and that as the prisoners had not the turkies in a live state in Hertfordshire, the charge, as laid, was not proved, and that the conviction was wrong. (k) Where an indictment upon the same statute 2 Geo. 2. c. 25., now repealed, stated the offence to have been committed against the form of the statute, and not of the statutes, it was objected to, on the ground of the statute 2 Geo. 2. c. 25. having once expired, and being revived by the statute 9 Geo. 2. c. 18. It became unnecessary for the Judges to give any opinion on this objection, another point having been reserved for their consideration; but those Judges who adverted to it thought the form of the indictment good, and that the re-enacting statute was the only statute in force against the offence; () and in a subsequent case, an indictment for stealing bank-notes against the form of the statute was ruled to be good. (m) An indictment for a common-law felony must contain a contra pacem, and so must an indictment for stealing articles, the stealing of which is made felony by statute; and laying the offence to have been against the form of the statute will not supply the defect. An indictment was for stealing bank-notes against the form of the statute, but it was not laid to be against the peace, &c. and, after conviction, the Judges held the indictment bad, and judgment was arrested. (n) 6 But objections of this kind will not now avail in arrest or reversal of judgment. The statute 7 Geo. 4. c. 64. s. 20. professing to have for its object that the punishment of offenders may be less frequently interrupted in consequence of technical niceties, enacts" that no "judgment upon any indictment or information for any felony or "misdemeanor, whether after verdict or outlawry, or by confes❝sion, default, or otherwise, shall be stayed or reversed for want "of the averment of any matter unnecessary to be proved, nor for "the omission of the words as appears by the record,' or of the "words with force and arms,' or of the words against the peace,' nor for the insertion of the words against the form of "the statute,' instead of the words against the form of the "statutes,' or vice versa, nor for that any person or persons " mentioned in the indictment or information, is or are designated "by a name of office or other descriptive appellation instead of "his, her, or their proper name or names, nor for omitting to "state the time at which the offence was committed, in any case "where time is not of the essence of the offence, nor for stating "the time imperfectly, nor for stating the offence to have been "committed on a day subsequent to the finding of the indictment 66 6 (k) Rex v. Edwards and Walker, (7) Phipoe's case, 1795.2 East. P. C. J., conferred with Thomson, B., on the occasion, who declared his concurrence, considering the reviving statute as in effect re-enacting the provisions of the expired law. (n) Rex v. Cook, East. T. 1810. MS. Bayley, J., and Russ. & Ry. 176. "or exhibiting the information, or on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue, where the court shall appear by the indictment or in"formation to have had jurisdiction over the offence." The 21st section enacts "that no judgment after verdict upon "any indictment or information for any felony or misdemeanor "shall be stayed or reversed for want of a similiter, nor by rea"son that the jury process has been awarded to a wrong officer upon an insufficient suggestion, nor for any misnomer or misde"scription of the officer returning such process, or of any of the "jurors, nor because any person has served upon the jury who "has not been returned as a juror by the sheriff or other officer; "and that where the offence charged has been created by any "statute, or subjected to a greater degree of punishment, or ex"cluded from the benefit of clergy by any statute, the indictment "or information shall after verdict be held sufficient to warrant "the punishment prescribed by the statute, if it describe the of "fence in the words of the statute." It will not now be an objection to an indictment, that the matters alleged or the persons described in it, do not correspond in number or gender with the descriptions in the statute upon which it is framed. The 7 & 8 Geo. 4. c. 28. s. 14. enacts, "that wherever this or any other statute relating to any offence, "whether punishable upon indictment or summary conviction, in "describing or referring to the offence or the subject matter on or "with respect to which it shall be committed, or the offender, or "the party affected, or intended to be affected by the offence, "hath used or shall use words importing the singular number or "the masculine gender only, yet the statute shall be understood "to include several matters as well as one matter, and several per"sons as well as one person, and females as well as males, and "bodies corporate as well as individuals, unless it be otherwise "specially provided, or there be something in the subject or con"text repugnant to such construction; and wherever any for"feiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate in every case where such body shall "be the party aggrieved." What shall not be sufficient to stay or reverse judg ment after verdict. 7 & 8 Geo. 4. c. 28. s. 14. interpretation of all criminal statutes. Rule for the tried in the But this offence is considered as every county into which the proper county. committed in Larceny, like every other offence, must regularly be tried in the Trial. Larsame county or jurisdiction in which it was committed: but it ceny must be should be noted with respect to larceny, that the offence is considered as committed in every county or jurisdiction into which the thief carries the goods; for the legal possession of them still remains in the true owner, and every moment's continuance of the trespass and felony amounts to a new caption and asportation. (0) Therefore, if a man steal goods in the county of A. and carry them into the county of B., he may be indicted for the larceny in the county of B. But if a compound larceny be committed in one county, and the offender carry the property into another, though he may be convicted in the latter county of the simple larceny, he cannot be there convicted of the compound larceny. Thus where 52. (0) 3 Inst. 113. 1 Hale 507, 508. 2 Hale 163. 1 Hawk. P. C. c. 33. s. 4 Black. Com. 304. 2 East. P. C. c. 16. s. 156. p. 771. thief carries the goods. Barnett and others (case of.) The four prisoners stole county of Gloucester, and divided them in that county, and then carried their shares the prisoner robbed the mail of a letter either in Wiltshire or Berkshire, and brought it into Middlesex, and was indicted capitally in Middlesex on the statutes 5 Geo. 3. c. 25. s. 7. and 7 Geo. 3. c. 40. the Judges, upon a case reserved, held that he could not be convicted capitally out of the county in which the letter was taken from the mail. (p) So robbery can only be in the county where committed; the felony travels. (9) The larceny may, however, in some respects be considered as a new larceny, and as not necessarily including all the qualities of the original larceny therefore if the thing stolen is altered in character in the first county so as to be no longer what it was when stolen, an indictment in the second county must describe it according to its altered, and not according to its original state. An indictment was preferred in Hertfordshire for stealing four live tame turkies; and it appeared that they were stolen alive in Cambridgeshire, killed there, and carried dead into Hertfordshire; and upon the point being saved, the Judges held that though the carrying into Hertfordshire constituted a larceny in that county, yet it was a new larceny there, and a larceny of dead turkies, not of live ones. (r) But a considerable space of time intervening between the theft in one county and the carrying the stolen property into another county will not prevent the case from being considered as a larceny in the county into which the property is carried. Upon the 4th of November, the prisoner stole a note in Yorkshire, and upon the 4th of March he carried it into Durham; and he was indicted for stealing it in Durham and upon a case reserved, the Judges were clear that the interval between the first taking and the carrying it into Durham did not prevent it from being a larceny in Durham, and that the conviction in that county was right. (s) The following case was ruled upon the principle that the larceny in the county into which a thief carries the goods may be in some respects of a different nature from the larceny in the county in which he first took them. Four prisoners were indicted for stealing a goods in the variety of articles of hardware in the county of Worcester. It appeared upon the evidence that the articles in question were made up into a package at Birmingham, and dispatched by the canal from that place to Worcester, to be forwarded down the river Severn to Bristol. The package arrived safely at Worcester, where it was transferred from the canal boat to a barge called the Blucher, in which it was to be conveyed a great part of the way down the Severn; namely, to a place called Brimspill in the county of Gloucester. The prisoners were bargemen on board the Blucher; and during the voyage from Worcester to Brimspill, the course of which was nearly equal in the two counties of Worcester and Gloucester, being about thirty miles in each, the articles in question were stolen from the package; but they were not missed till of Worcester, the barge arrived at Brimspill. At that place the cargo was unbut separate into the coun ty of Worces ter, in their separate bags: and it was ruled that this was not a joint larceny in the county (p) Rex v. Thomson, Hil. T. 1795. MS. Bayley, J. (q) 1 Hale 536. (r) Rex v. Edwards and Walker, Hil. T. 1823. MS. Bayley, J., and Russ. & Ry. 497. Ante, 171, 2. (8) Rex v. Parkin, Mich. T. 1824. MS. Bayley, J., and Ry. & Mood. C. C. 45. and the sub loaded, and put on board another vessel, to be carried onwards to larcenies in Bristol; and the Blucher barge returned to Worcester navigated that county, by the prisoners. Suspicion having fallen upon them, they were ject of dis apprehended in the county of Worcester, when their respective tinct prosecubags were immediately searched, and a portion of the stolen arti- tions. cles was found in each of them. It was then proved, that upon their apprehension, and upon being required to account for the possession of the articles, they stated that the package was broken by accident while on board the Blucher, on the voyage from Worcester to Brimspill, when the articles fell out, and they took them and made a division of them immediately. They did not state at what part of the voyage this transaction took place; but it appeared probable that it took place in the county of Gloucester, and there was no evidence to rebut that probability. Upon these facts the learned Judge ruled that the indictment could not be supported against the prisoners as for a joint larceny in the county of Worcester, and put the counsel for the prosecution to his election: who accordingly proceeded against one only of the prisoners, who was convicted, and sentenced to transportation. () But if two persons be guilty of a felonious taking in one county, and one of them alone carry the property into another county, yet if the other afterwards concur with him in the second county in securing the possession, both may be indicted in, the second county. County and Donovan laid a plan to get some coats from the prosecutrix under pretence of buying them. The prosecutrix had them in Surrey at a public-house; the prisoners got her to leave them with Donovan whilst she went with County, that he might get the money to pay for them; in her absence Donovan carried them into Middlesex, and County afterwards joined him there, and concurred in securing them. The indictment was laid against both in Middlesex; and upon a case reserved, the Judges were unanimous that as County was present aiding and abetting in Surrey at the original larceny, his concurrence afterwards in Middlesex, though after an interval, might be connected with the original taking, and brought down his larceny to the subsequent possession in Middlesex. They therefore held the conviction right. (u) It should further be observed, that there are some exceptions to Exceptions to the rule that a larceny is committed in every county or jurisdic- the rule that a tion into which the thief carries the goods. For if the original taking be such whereof the common law cannot take cognizance, as if the goods be stolen at sea, the thief cannot be indicted for the larceny in any county into which he may carry them.(x) (1) Rex v. Barnett, Smith, Burton, and Purser, cor. Holroyd, J. Worcester Sum Ass. 1818. Separate indictments were afterwards preferred against the three other prisoners, (as the grand jury had not been discharged,) to which they pleaded guilty. The learned counsel (Sir Wm. Owen) who was retained to defend them, inclined much to put in the plea of autrefois acquit on their be- to mercy. (u) Rex v. County, East. T. 1816. MS. Bayley, J. (x) 3 Inst. 113. 1 Hawk. P. C. c. 33. s. 52. larceny is committed in every county into which the thief carries the goods. |
