126 1823. REX บ. WHITCOMB. The defendant's counsel also put in the original depositions taken before the defendant at the inquest. HULLOCK, B., left the evidence of the facts, and the corrupt motive to the jury. Verdict Guilty. Pearson asked that the defendant should give bail for his appearance to receive judgment. HULLOCK, B., stated, that where no disposition to abscond was manifested, the application was quite unusual, and declined making any such order. 'Pearson then asked for the defendant's own recognizances, which the learned Baron also declined ordering (d). Pearson, Campbell, Russel, and Ryan, for the prosecution. Peake, Serjt., Jervis, Puller, and Corbet, for the defendant. [Attornies-Loxdale and Collins.] ing it in evidence on a trial, is to cause an office copy of it to be taken; the attorney in the cause in which it is to be produced, (or other proper person), then gives an undertaking to return the original affidavit as soon as used. He is (on one of the clerks in court obtaining a judge's order for that purpose, which order is granted on a statement of the facts,) per mitted, to take it away, leaving the office copy and the undertaking in its place till it is returned. (d) In some of the cases of blasphemous libel, I have known the defendant committed, or held to bail for his appearance to receive judgment, though no particular disposition to escape has been manifested. THE indictment in this case charged the prisoner with Variance.-An stealing one brass furnace, at the Parish of Brilley, in the county of Hereford. From the evidence, it appeared, that the prisoner had stolen the furnace at a place called Clowes, in the county of Radnor, and that he carried it aflittle way, and then broke it, bringing the fragments into the county of Hereford. It appeared that Clowes, and the place at which he broke the furnace, were both more than five hundred yards from the boundary of the county of Hereford (a). HULLOCK, B., directed an acquittal, and said: Though a prisoner may be indicted for a larceny in any county, into which he takes stolen property, the present indictment must fail, as he never had the "brass furnace” in Herefordshire, or within five hundred yards of its boundaries: he merely had there certain pieces of brass (b). Verdict Not Guilty. indictment for stealing " a brass furnace" in the county of H. is not sup. ported by evi dence of steal ing a brass furnace in the county of R. and breaking it there, and bringing the pieces into H. shire, (a) By the statute 59 Geo. 8, c. 96, § 2, it is enacted, that in any indictment for felony committed on the boundary of two or more counties, or within five hundred yar s of the boundary, it shall be sufficient to lay the offence in ei- (b) With regard to description 1828 July 31st. SAME V. SAME. Variance.—An THE same prisoner was also indicted for stealing "two turkies." [See Note (b) to the preceding case.] indictment for stealing two turkies, not sup ported by proof of stealing two dead turkies. mon as for the clearest cases to fail from a mis-description of this kind. I need not mention the well known cases of a man, indicted for stealing a pair of stockings, being ac quitted, because the stockings were proved to be odd ones; or of the person acquitted of stealing a duck, because in proof it turned out to be a drake. I was present at the acquittal of a man for forgery, in altering a levari facias from the county court, because it was called in the indictment a writ; a levari facias from the county court not being a writ, but only a warrant from the sheriff to his officer. It is best, at least in one count, to call the thing stolen by the same name the witnesses will call it in their evidence. When an animal is described in an indictment by its name only, without the epithet dead, it will be considered to be alive. An indictment for stealing a horse would be but ill supported by proof of stealing a dead horse. The nearest case that I recollect to have met with is Rough's case, in Mr. East's Pleas of the Crown, where the prisoner was indicted for stealing a pheasant of the value of forty shillings, of the goods and chattels of the prosecutor: the twelve Judges held, that, from the description, it must be taken to be a pheasant alive, and so fera naturæ; and, to show it to be a felony, the indictment should state it to have been dead or reclaimed; and the stating it to be of the goods and chattels, did not supply the deficiency. Perhaps the most cnrious distinction between living and dead is, that the stealing the skin of a dog, like stealing any other skin from the furrier, is a larceny; whereas stealing the living dog, which is the skin and something more, is no larceny; dogs being considered in law of a base nature, and not subject to larceny. In actions against lords of manors for taking away game, the declaration usually is, that the defendant, "with force and arms, "seized, took, and carried away' so many "dead hares," &c. Bird v. Dale, 7 Taunt. Rep. 560, and Churchward v. Studdy, 14 Ea. Rep. 249, are instances of this. It may be said, that, in actions for penalties, for having game in pos session, it is not usual to state that the defendant had a dead hare in his possession, but merely a hare. I apprehend the reason is, that this being an action on a statute, it is considered sufficient to follow the words of it. 19 In evidence the turkies appeared to have been dead turkies, stolen from a larder. HULLOCK, B., ruled, that this indictment could not be supported; for "two turkies" must be taken to mean live turkies. It ought to have been for stealing two dead turkies. Verdict Not Guilty. 1823. REX บ. HALLOWAY. REX V. GEORGE TYLER and JOHN FINCH. July 31st. THESE prisoners were indicted for breaking into a house Confession of a in the day-time, no person being therein. prisoner to a constable, who had held out no inducement, is Curwood offered to prove a confession of the prisoner evidence; tho' Finch, made to a constable. Sir W. Owen, for the prisoners, wished to show that the prisoner Finch, being locked up alone in a room at a public-house, was told by a man, that the other prisoner had told all, and he had better do the same to save his neck: and that on this the prisoner Finch confessed (a). HULLOCK, B., held, that as the promise (if any) was by a person wholly without authority, the subsequent confession to the constable, who had held out no inducement, an inducement had been previously held out by a person in thority. no office or au (a) When the supposed confession was proved, it appeared that the prisoner said, that a man had told him, he had better tell all, for the other prisoner had confessed; but that he would not say a word, for he came too far north. Here w K see a man's refusal to confess, must be considered as voluntary, and was therefore evi 1823. REX dence. A second son, who was living with his father at the time of his death, holding possession of his father's DOE, on the Demise of DAVIS, v. Davis. THE plaintiff was the eldest, and the defendant the second son of a Mr. Davis, who was seized in fee of the house for which the present ejectment was brought. It appeared that the defendant had lived with his father for some time previous to his death, at the house in question, and continued to reside in the house after the father's death, when he levied a fine with proclamations, which was proved; and the defendant's counsel contended, that avoid this fine. he must succeed, as there had been no actual entry by the lessor of the plaintiff; but house, levies a fine with pro clamations. The eldest son need not make an actual entry to PARK, J., considered such entry unnecessary, as the second son merely continued in the house he had rightfully resided in during his father's lifetime; and that he was not seized of the freehold rightfully, or by disseizin. His lordship therefore directed a Verdict for the plaintiff. |