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rough, J., and Hullock, B., were of a different opinion, but Hullock thought that if a nolle prosequi were entered as to the burglary, judgment might be given against all the three for the capital larceny. The seven judges thought that there might be cases in which, upon a joint larceny by several, the offence of one might be aggravated by burglary in him alone, because he might have broken the house in the night, in the absence and without the knowledge of the others, in order to come afterwards and effect the larceny, and the others might have joined in the larceny without knowing of the previous breaking. Butterworth's case, Russ. and Ry. 520 (a).

Although a prisoner may be convicted of the larceny only, yet if the larceny was committed on a previous day, and not on the day of the supposed burglary, he cannot be convicted of such larceny. This point having been reserved for the opinion of the judges, they said" the indictment charges the prisoners with burglariously breaking and entering the house and stealing the goods, and most unquestionably that charge may be modified by showing that they stole the goods without breaking open the house; but the charge now proposed to be introduced, goes to connect the prisoners with an antecedent felony committed before three o'clock, at which time it is clear, they had not entered the house. Having tried without effect to convict them of breaking and entering the house, and stealing the goods, you must admit that they neither broke the house nor stole the goods on the day mentioned in the indictment; but to introduce the proposed charge, it is said, that they stole the goods on a former day, and that their being found in the house is evidence of it. But this is surely a distinct transaction; and it might as well be proposed to prove any felony which these prisoners committed in this house seven years ago, as the present." Vandercomb's case, 2 Leach, 708.

Proof of breaking out of a dwelling-house.] It was formerly doubted whether, where a man entered a dwelling-house in the night (without breaking) with intent to commit felony, and afterwards broke out of the same, or being there in the night committed a felony, and broke out, this antonted to burglary or not (1). 1 Hale, P. C. 554; Clarke's case, 2 East, P. C. 490; Lord Bac. Elem. 65; 2 Russ. 7. It was, however, declared to be such by 12 Anne, c. 7, and that act being now repealed, it is declared by 7 and 8 Geo. 4, c. 29, s. 11, that if any person shall enter the dwelling-house of another with intent to commit a felony, or being in such dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night time, such person shall be deemed guilty of burglary.

An indictment which stated in one count, that the prisoner "did break [*332] to get out," and in another that he "did break and get out," *was held by Vaughan and Patteson, JJ. insufficient since the last mentioned statute, which uses the words "break out." Crompton's case, 7 C. and P. 139 (b).

In Lawrence's case, 4 C. and P. 231 (c), Bolland, B., held that escaping from a house by lifting up a trap-door over a cellar, which had no fast

(1) That it does, see Case of Sands and al., 6 Rogers' Rec. 1.

(a) 1 Eng. C. C. 520. (b) Eng. Com. L. Rep. xxxii. 469. (c) Id. xix. 360.

ening, but was kept down by its own weight, was not a sufficient breaking out of the house. This, however, has been held a sufficient breaking into a house, see ante, p. 304.

Where a lodger in the prosecutor's house got up in the night and unbolted the back door and went away with a jacket of the prosecutor's which he had stolen; he was convicted of burglary. Wheeldon's case, 8 C. and P. 447 (a).

Proof upon plea of autrefois acquit.] In considering the evidence upon the plea of autrefois acquit in burglary, some difficulty occurs from the complex nature of that offence, and from some contrariety in the decisions. The correct rule appears to be, that an acquittal upon an indictment for burglary in breaking and entering and stealing goods, cannot be pleaded in bar to an indictment for burglary in the same dwelling-house, and on the same night with intent to steal, on the ground that the several offences described in the two indictments cannot be said to be the same. This rule was established in Vandercomb's case, where Buller, J. delivered the resolution of the judges, and concluded in these words :-"These cases establish the principle, that unless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. Now to apply these principles to the present case. The first indictment was for burglariously breaking and entering the house of Miss Neville, and stealing the goods mentioned; but it appeared that the prisoners broke and entered the house with intent to steal, for in fact no larceny was committed, and therefore they could not be convicted on that indictment. But they have not been tried for burglariously breaking and entering the house of Miss Neville with intent to steal, which is the charge in the present indictment, and therefore they have never been in jeopardy for this offence. For this reason the judges are all of opinion that the plea is bad, and that the prisoners must take their trials upon the present indictment." Vandercomb's case, 2 Leach, 716; 2 East, P. C. 519, overruling Turner's case, Kel. 30, and Jones and Bever's case, Id. 52.

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Offences with regard to cattle-stealing horses, cows, sheep, &c.] The stealing of domestic animals, as horses, cows, sheep, &c. was larceny

(a) Eng. Com. L. Rep. xxxiv. 617.

at common law, and the punishment of persons so offending was likewise provided for by various statutes now repealed, the 7 and 8 Geo. 4, c. 29, being substituted in their place.

By the 25th section of that statute, "if any person 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 carcass, or skin, or any part of the cattle so killed, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon." But by the 2 and 3 Wm. 4, c. 62, s. 1, the above act, so far as regarded the punishment of the offender, was repealed, and it was enacted, that every person convicted of such felonies, or of counselling, aiding, or abetting the commission thereof, should be transported for life. And by 3 and 4 Wm. 4, c. 64, s. 3, such offender might, previous to his being transported, be imprisoned with or without hard labor in the common gaol or house of correction, or be confined in the penitentiary for any term not exceeding four years, nor less than one year.

Now by the 7 Wm. 4 and 1 Vict. c. 90, s. 1, so much of the 2 and 3 Wm. 4, c. 62, and 3 and 4 Wm. 4, c. 44, as relates to the punishment of persons convicted of offences for which they are hable, under the 2 and 3 Wm. 4, c. 62, to be transported for life, is repealed; and it is enacted, that "every person convicted of any of such offences shall be liable to be transported beyond the seas, for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years."

By s. 3, "in awarding the punishment of imprisonment for any offence punishable under this act, it shall be lawful for the court to direct such imprisonment to be with or without hard labor in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement, for any portion or portions of such imprisonment, or [*334] of such imprisonment with hard *labor, not exceeding one month at any one time, and not exceeding three months in any one year, as tò the court, in its discretion, shall seem meet."

By the 7 and 8 Geo. 4, c. 29, s. 61, principals in the second degree, and accessaries before the fact to the above offences were punishable with death, but the 2 and 3 Wm. 4, c. 62, reduced the punishment to transportation for life. The recent statute 7 Wm. 4 and 1 Vict. c. 90, s. 1, in repealing the punishment of persons convicted of offences, for which they were liable to be transported for life by the 2 and 3 Wm. 4, c. 62, applies to principals in the second degree, and accessaries before the fact, who are therefore now punishable under that act. See supra.

Accessaries after the fact (except receivers of stolen property) seem still punishable under the 7 and 8 Geo. 4, c. 29, s. 61; ante, p. 206; but see post, title Dwelling-house.

To support a prosecution under this statute for stealing a horse, &c., the prosecutor must give the same evidence, in general, as would be required to maintain an indictment for larceny at common law.

Upon a trial for horse-stealing, the prosecutor stated, that he had agisted the horse on the land of another at some distance, and that learning from that person of the loss of the horse, he went to the field where the horse had been put to feed, and discovered that it was gone; but neither

the prosecutor nor his servant was called as a witness; Gurney, B., held, that this was not sufficient evidence against the prisoner, for it was not shown that he might not have obtained possession honestly of the horse. Yend's case, 6 C. and P. 176 (a).

From the peculiar nature of the property, a doubt sometimes arises with regard to the animus furandi in cases of horse-stealing; it being uncertain whether the horse was taken with an intent to steal, or merely to facilitate the escape of the party with other stolen property.

The least removal in this, as in other cases of larceny, will be sufficient, though part only of the animal be taken. The prisoner was indicted for stealing six lambs, and the evidence was that the carcasses of the lambs without their skins, were found on the premises where they had been kept, and that the prisoner had sold the skins the morning after the offence was committed. The jury having found the prisoner guilty, a doubt arose whether, as the statute 14 Geo. 2, c. 6, (now repealed) specifies feloniously driving away, and feloniously killing, with intent to steal, the whole or any part of the carcass, 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; but the judges held the conviction right, for any removal of the thing feloniously taken constitutes larceny. Rawlins' case, 2 East, P. C. 617. The authority of this case, however, so far as the circumstances were held to apply to the rule, with regard to the removal of the property, was much shaken in the following: -The prisoner was tried upon an indictment (under 14 Geo. 2,) charging him in one count with stealing, and in another with killing, three sheep, with intent to steal the whole of the carcases. The sheep [ *335] were in the field of the prosecutor on the evening of the 4th May, and the next morning were found killed and cut open, the inside and entrails taken out, and the tallow and inside fat taken away; the fat cut off the back of two of them was taken away, but the fat on the back of the third was left. The carcases of the sheep were found lying in the gripe of the hedge, in the same field where the live sheep had been; the entrails were also left, and found in an adjoining field. With regard to the count for stealing, Littledale, J., observed, that in all cases, in which a slight removal of the article had been held to amount to larceny, there had always been an intent to steal the article itself, but the thief.had been prevented from getting the complete possession and dominion over it; and if it was not held larceny, there would be a failure of public justice. But here there was no intention, in the removal, to drive away or steal the living sheep; but the intent of the removal was to commit another offence, of which he might be capitally convicted. In all the cases where a slight removal had been held larceny, there was evidence given of an actual removal, and how it was done: but here there was no evidence of the removal of the sheep in a live state, and the removal after their death would not support a count for stealing sheep, which must be intended to be live sheep. (Edwards' case, Russ. and Ry. 497 (b).) The doctrine in Rawlins' case, supra, not being satisfactory to the mind of the learned judge. he reserved the case for the opinion of the judges, who were of opinion that the second count was supported, and not the first, a removal whilst alive being essential to constitute larceny; and nine of the judges held

(a) Eng. Com. L. Rep. xxv. 341. (b) 1 Eng. C. C. 497.

that the offence of intending to steal a part, was part of the offence of intending to steal the whole, and that the statute meant to make it inimaterial whether the intent applied to the whole, or only to part. Williams' case, 1 Moody, C. C. 107 (a).

With regard to the description of the animal stolen, &c. many of the cases have already been stated. See ante, p. 94.

Since that portion of this work was printed, a decision has been published, by which Puddifoot's case, ante, p. 95, is overruled. The indictment charged that the prisoner slaughtered a sheep with intent to steal the carcass. There was no evidence to show, whether the animal was a wether or a ewe. For the prisoner it was contended, on the authority of the above case, that the prosecutor was bound to prove the sex. The prisoner being convicted, the point was reserved for the opinion of the judges; a large majority of whom held, that the word "sheep" must be taken to include both sexes, notwithstanding the words ram, ewe, &c. are mentioned in the statute, and the conviction was affirmed. M'Cully's case, 2 Lewin, C. C. 272. A rig sheep, or wether, is properly described as a sheep. Per Alderson, B., Stroud's case, 6 C. and P. 535 (b).


Where on an indictment for stealing a sheep, it appeared, that the animal was under a year old; Bolland, B., held, that the prisoner must be acquitted, as he ought to have been indicted for stealing a lamb, Birket's [ *336] case, 4 C. and P. 216 (c); and see Loom's case, ante, 95. These decisions do not appear to be affected by the ruling in M'Cully's case, ante, p. 335.

The phrase "bullock-stealing," in the 7 Geo. 4, c. 64, s. 28, (see ante, p. 228,) empowering the court, in certain cases, to order rewards to persons active in the apprehension of offenders, was held by Law, Recorder, to include all cases of cattle-stealing of that particular class or description, as ox, cow, heifer, &c. Gillbrass's case, 7 C. and P. 444 (d).

The 7 & 8 Geo. 4, c. 29, s. 25, applies only to the stealing of live cattle; and where dead animals are stolen it is but a common larceny, and the punishment is different. See post, title Larceny.

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Killing cattle, with intent to steal.] Upon an indictment under the 7 and 8 Geo. 4, c. 29, s. 25, for killing cattle with intent to steal the carcass or skin, or any part of the cattle so killed, the prosecutor must prove the killing and the intent.

Upon an indictment for killing a sheep, with intent to steal the whole carcass, it is sufficient to prove a killing with intent to steal a part only. Williams's case, 1 Moody, C. C. 107 (e), supra. Where the prisoner was indicted for killing a lamb, with intent to steal part of the carcass, and it appeared that the prisoner cut off the leg of the animal while living, and carried it away before it died, the judge thought that as the death wound was given before the theft, the offence was made out, and the prisoner being convicted, on a case reserved, the judges were unanimously of opinion that the conviction was right. Clay's case, Russ. and Ry. 387 (ƒ).

On the trial of an indictment for killing a ewe with intent to steal the carcass, it appeared that the prisoner wounded the ewe by cutting her

(a) 2 Eng. C. C. 107,

(b) Eng. Com. L. Rep. xxv. 529. (c) Id. xix. 351. (d) Id. xxxii. 578. (e) 2 Eng. C. Č. 107. (ƒ) 1ld. 387.

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