« EdellinenJatka »
at common law, and the punishment of persons so offending was likewise provided for by various statutes now repealed, the 7 and 8 Geo. 4, c. 29, being substituted in their place.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 But by the 2 and 3 Wm. 4, c. 62, s. 1, the above act, so far as regarded the punishment of the offender, was repealed, and it was enacted, that every person convicted of such felonies, or of counselling, aiding, or abetting the commission thereof, should be transported for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persons convicted of offences for which they are hable, under the 2 and 3 Wm. 4, c. 62, to be transported for life, is repealed; and it is enacted, that “every person convicted of any of such offences shall be liable to be transported beyond the seas, for any term not exceeding fifteen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 to 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.
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 rerhoval 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. (6) 1 Eng. C. C. 497.
or a ewe.
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, I 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
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.
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, i 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 (f).
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 throat, and was then interrupted by the prosecutor, and that the ewe died two days after. The jury found that the prisoner intended to steal the carcass, and convicted him. The judges held the conviction right. Sutton's case, 8 C. and P. 291 (a).
(a) 2 Eng. C. C. 107. - (6) Eng. Com. Ł: Rep. xxv. 529. Tc) Id. xix. 351. 578. (C) 2 Eng. C. C. 107 (
(d) Id. xxxii.
Maiming, &c. of Cattle.) At common law, the maiming of cattle was not an indictable offence. The prisoner was charged, for that he, on, &c., with force and arms, one gelding, of the value, &c., then and there unlawfully did main, to the damage of the prosecutor; but, upon a reference to the judges after conviction, they all held that the indictmeni contained no indictable offence; for, if the case were not within the Black Act, the fact in itself was only a trespass; for the words vi et armis did not imply force sufficient to support the indictment. Ranger's case, 2 East, P. C. 1074.
This class of offences was provided against by the Black Act, 9 Geo. 1, c. 22; but that statute was repealed, and in substance re-enacted, by the . 4 Geo. 4, c. 54; which was also repealed by the 7 and 8 Geo. 4, c. 27.
By the 7 and 8 Geo. 4, c. 30, s. 16," if any person shall unlawfully and maliciously kill, maim, or wound any cattle, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discre tion of the court, to be transported beyond *the seas for life, or [ *337 ] 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 think fit) in addition to such imprisonment.
By the 7 Wm. 4 and 1 Vict. c. 90, s. 2, so much of the above act as relates to the punishment of persons convicted of the offences therein specified is repealed, and it is enacted, that "every person convicted after the commencement of this act of any of such offences respectively, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, and not less than ten years, or to be imprisoned for any term not exceeding three years."
For s. 3, of the above act, authorising the court in awarding imprisonment, to add hard labor and solitary confinement, see ante, p. 333.
The evidence upon a prosecution under this statute will be-1, that the animal killed or maimed comes within the description of cattle specified in the statute ; and 2, the act of killing or maiming by the prisoner.
Proof of the animal being within the statute.) Upon the repealed statute of 9 Geo. 1, c. 22, which only contained the general word “cattle," it was held, that an indictment for killing a "mare" was good. Paty's case, 1 Leach, 72; 2 W. Bl. 721 ; 2 East, P. C. 1074. indictment for wounding "a gelding." Mott's case, 1 Leach, 73, (n.) Pigs were held to be within the 9 Geo. 1, c. 22. Chapple's case, Russ. and Ry. 77. So also asses. Whitney's case, I Moody, C. C. 3 (b).
It is not sufficient in the indictment to charge the prisoner with maiming, &c. " cattle” generally, without specifying the description, and such description must be proved ; and where the sex is stated, the animal must be proved to be of that sex. Chalkley's case, Russ. and Ry. 258 (c).
(a) Eng. Com. L. Rep. xxxiv. 394. (6) 2 Eng. C. C. 3. (c) 1 Id. 238.
Proof of the injury.] Upon an indictment for maliciously wounding, it need not appear either that the animal was killed, or that the wound inflicted a permanent injury. Upon an indictment for this offence, it was proved that the prisoner had maliciously driven a nail into a horse's foot. The horse was thereby rendered useless to the owner, and continued so to the time of trial ; but the prosecutor stated that it was likely to be perfectly sound again in a short time. The prisoner being convicted, the judges, on a case reserved, held the conviction right, being of opinion that the word "wounding" did not_imply a permanent injury. Haywood's case, Russ. and Ry. 16 (a); 2 East, P. C. 1076. But by maiming, it is to be understood a permanent injury. Id. 2 East, P. C. 1077.
Where the prisoner was indicted on the 4 Geo. 4, c. 54, for wounding a sheep, and it appeared that he had set a dog at the aniinal, and that the dog, by biting it, inflicted several severe wounds, Park, J., is stated to have said, “This is not an offence at common law, and is only made so [ *338 ] by a statute, and I am of opinion *that injuring a sheep, by setting a dog to worry it, is not a maiming or wounding within the meaning of that statute." Hughes's case, 2 C. and P. 420 (b). As to the construction of the word Wound" see Wood's case, i Moody, C. C. 278(c); Wetton's case, Id. 294 (d). Where the prisoner poured a quantity of nitrous acid into the ear of a mare, some of which, getting into the eye, produced immediate blindness, being convicted of maliciously maiming the mare, the conviction was held by the judges to be right. Owen's case, 1 Moody, C. C. 205 (e).
The administering poison to cattle, however malicious the act may be, is not a felony within the statute, unless the animal die; but the party may be indicted as for a misdemeanor. Where a man was thus indicted, for administering sulphuric acid to eight horses, with intent feloniously to kill them, and it appeared that he had mixed sulphuric acid with the corn, and having done so gave each horse his feed; Park, J., held that this evidence supported the allegation in the indictment, of a joint administering to all the horses. Mogg's case, 4 C. and P. 364 (f).
Where a prisoner set fire to a cowhouse, and a cow in it was burnt to death, Taunton, J., ruled that this was a killing of the cow within the 7 & 8 Geo. 4, c. 30, s. 16. Haughton's case, 5 C. and P. 559 (8).
Proof of malice and intent.] Under the repcaled statute of 9 Geo. 1, c. 22, it was necessary to show that the act was done out of malice to the owner; but the 7 & 8 Geo. 4, c. 30, s. 25, (see post, title Malicious Injuries,) renders it an offence, whether the act be done from malice conceived against the owner or otherwise. Although it is thus rendered unnecessary to give evidence of malice against any particular person, yet an evil intent in the prisoner must appear. Thus in Mogg's case, supra, Park, J., left it to the jury to say whether the prisoner had administered the sulphuric acid (there being some evidence of a practice of that kind by grooms) with the intent imputed in the indictment, or whether he had done it under the impression that it would improve the appearance of his horses; and that in the latter case they ought to acquit him. In the same case the learned judge allowed evidence to be given of other acts of administering, to show the intent. (a) 1 Eng. C. C. 16. (5) Eng. Com. L. Rep. xii. 200. (c) 2 Eng. C. C. 278. (4) Id.
294. (e) Id. 205. (f) Eng. Com. L. Rep. xix. 420. (g) ld. xxiv. 454.