where the defendant merely set a package on end, in the place where it lay, for the purpose of cutting open the side of it, to get out the contents, and was detected before he had accomplished his purpose: the judges held that this was not sufficient. R. v. Cherry, 2 East, P. C. 556. So, where the thief was not able to carry off the goods, on account of their being attached by a string to the counter; Anon. 2 East, P. C. 556; or to carry off a purse, on account of some keys attached to the strings of it getting entangled in the owner's pocket: R. v. Wilkinson, 1 Hale, 508: the court in these cases held, that there was not a sufficient carrying away to constitute larceny; to render the asportation in such cases complete, there must be a severance. 2 Russel, 1034, 1035.

Indictment for Horse Stealing.

Commencement, as ante, p. 113.] One mare, of the price of ten pounds, of the goods and chattels of one J. N., then and there being found, then and there feloniously did steal, take, and lead away; against the peace of our lord the King, his crown and dignity.

Stealing a "horse, gelding, or mare," is felony, death. 1 Ed. 6. c. 12. s. 10., 2 & 3 Ed. 6. c. 33.

Prove a larceny of the mare, as directed ante, p. 114-127. As the statutes mention horse, gelding, and mare, proof that the defendant stole a mare, will not support an indictment for stealing a horse; and è converso: See R. v. Cooke, ante, p. 23, 63: at least, it should seem that such evidence would not be sufficient, under the statutes, to oust the defendant of clergy; although perhaps it would be deemed sufficient to convict him as for a larceny at common law, "horse" being a generic term. Sed. qu.

Indictment for Stealing Sheep or other Cattle.

Commencement, as ante, p. 113.] Five sheep for "bulls, cows, oxen, steers, bullocks, heifers, calves, lambs") of the price of four pounds, of the goods and chattels of J. N., then and there being found, then and there feloniously did steal, take, and drive away; against the peace of our lord the King, his crown and dignity.

Stealing sheep or other cattle, is felony, death; 14 G. 2. c. 6. s. 1; and this statute is to be deemed and taken to extend to any bull, cow, ox, steer, bullock, heifer, calf, and lamb, as well as sheep, and to no other cattle whatsoever. 15 G. 2. c. 34.

Evidence.

Prove a larceny of the sheep, as directed, ante, p. 114-127. Where the defendant removed the sheep from the fold into the open field, killed them, and took away the skins merely the judges held, that removing the sheep from the fold, was a sufficient driving away, to constitute the offence within the meaning of the above statutes. R. v. Rawlins, M. 1800, 2 East, P. C. 617. See the next precedent.

Proof that the defendant stole a heifer, has been holden not to be sufficient to support an indictment for stealing a cow; for both are mention

ed in the statute. R. v. Cook, ante, p. 23, 63. Quære at common law. Vide supra.

Indictment for Killing Sheep or Cattle, with intent to steal part of the carcass.

Commencement, as ante, p. 113.] Five sheep, ("bulls, cows, oxen, steers, bullocks, heifers, calves, lambs") of the price of four pounds, of the goods and chattels of J. N., then and there being found, then [129] and there wilfully and feloniously did *kill, with a felonious intent to steal part of the carcasses, that is to say [the inward fat], of the said sheep 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.

Killing a sheep, &c., with intent to steal the whole or any part of the carcass, is felony, death. 14 G. 2. c. 6. s. 1. 15 G. 2. c. 34. See the last dent.

prece

Evidence.

To support this indictment, you must prove two things:

:

1. That the defendant killed the sheep and this is proved either po sitively, as by a witness who saw him do it; or by circumstantial evidence; as, for instance, that the skins were found in his possession, or were sold by him to another person, or the like. See ante, p. 77, 78. 2. That he killed them, with the intent stated in the indictment. The best proof of this is, that the part of the carcass mentioned was actually stolen. But if the defendant were caught in the fact, that is, after killing the sheep, but before he had actually cut them up, then it is for the jury to say, upon a consideration of the facts of the case, whether he did not intend to steal the carcasses.

Proof that he killed a heifer, will not support an indictment charging him with having killed a cow. See R. v. Cooke, ante, p. 23, 63.

Indictment for Stealing Trees.

Commencement, as ante, p. 113.] About the hour of eleven in the night time of the same day, with force and arms, one oak tree of the value of five pounds, one beech ["ash. elm, fir, chestnut, asp"] tree of the value of three pounds, the property of J. N, then and there being found, then and there, without the consent of the said J. N., 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 seven years; 6 G. 3. c. 36; and the same, as to stealing roots, shrubs, or plants, to the value of 5s., in the night time. See the statute.

Evidence.

Prove it, as you would a larceny at common law; see ante, p. 114127; and prove the trees to have been taken without the consent of J. N. A variance in the species of tree, between the indictment and evidence, will be fatal.

[130]

As to the time of night at which the offence must be proved *to bave been committed, the same rule prevails as in burglary. R. v. Kemp. 1 Leach, 222.

Indictment for Stealing Lead affixed to buildings, &c.

Commencement, as ante, p. 113.] Sixty pounds weight of lead, of the value of six shillings, the property of J. N., then and there being fixed to the dwelling house of the said J. N., then and there feloniously did rip, 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 seven years. 4 G. 2. c. .32. This statute extends also to iron bar, iron gate, iron palisadoe, and iron rail," as well as to lead; and to lead, &c. fixed to any buildings or fixed in a garden, court yard, fence, or outlet thereto belonging. See 21 G. 3. c. 68, as to copper, brass, and bell metal, so fixed.

Evidence.

Prove the offence, as a larceny at common law. See ante, p. 114-127. Prove also that the house, &c. from which the lead was stolen, was at the time the dwelling house, &c. of J. N. Any material variance in the description of the house, &c. between the indictment and evidence, will be fatal. Where a man (having given a false representation of himself) got into possession of a house, under a treaty for a lease of it, and then stripped it of the lead ;—the jury being of opinion that he obtained possession of the house with intent to steal the lead, found him guilty, and he afterwards had judgment. R. v. Munday, 2 Leach, 850. In R. v. Senior, (1 Leach, 496,) it was holden that a "window casement made of iron, lead, and glass," was not within the statute. See also R. v. Hedge, 1 Leach, 201.

Indictment for Stealing Bills of Exchange, &c.

Commencement, as ante, p. 113.] One bill of exchange [promissory note, bank note, &c.] for the payment of ten pounds, and of the value of ten pounds, the property of J. N., then and there being found, feloniously did steal, take, and carry away; the said sum of ten pounds, secured and payable by and upon the said bill of exchange, being then and there due and unsatisfied to the said J. N.: 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, with or without clergy, in the same manner as if the defendant had stolen goods or chattels of the same value, and *under [ 131 ] the same circumstances. 2 G. 2. c. 25. s. 3. The statute extends

to exchequer orders and tallies, and other orders, entitling a person to an annuity or share of any parliamentary funds; to exchequer bills; (see 2 Leach, 954;) bank notes; South Sea bonds; East India bonds; dividend warrants of the bank, South Sea company, or any other company, society, or corporation; bills of exchange; navy bills or debentures; goldsmiths' notes for payment of money; and other bonds, warrants, bills, and promissory notes for the payment of money.

Evidence.

Prove a larceny of the bill, in the manner directed, ante, p. 114-127. It is immaterial whether the bill, at the time it was stolen, were indorsed by the payee, so as to be in a negotiable state, or not. Anon. 2 East,

P. C. 598. Country bank notes, paid by the agent in town, were stolen while on the way from the country bankers, for the purpose of being reissued; and these were holden by the judges to be promissory notes, within the meaning of the statute. R. v. Clarke, 2 Leach, 1036, but see R. v. Phipoe, 2 Leach, 673, 2 East, P. C. 599.

Indictment for Stealing a Letter.

Commencement, as ante, p. 113. Feloniously did steal, take, and carry away one letter from and out of a certain bag of letters then and there sent by the post, to wit, by the post from Droitwich, in the county of Worcester, to the city of Worcester: 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. (2d count.) And the jurors aforesaid upon their oath aforesaid do further present that the said J. S., afterwards, to wit on the day and year aforesaid, at the parish of A. in the county of B., feloniously did steal, take, and carry away one packet (the said packet being then and there, a letter containing [divers bills of exchange]) from and out of a certain other bag of letters, then and there sent by the post, to wit, by the post from Droitwich aforesaid, in the said county of Worcester, to the city of Worcester aforesaid: against the form, &c. (3d count.) "carry away one packet from and out of a certain other bag of letters, then and there sent by the post, to wit, by the post from Droitwich aforesaid in the said county of Worcester, to the city of Worcester aforesaid: against the form," &c.

The

Felony, death. 7 G. 3. c. 50. s. 2. 52 G. 3. c. 143. s. 3. [132] venue may be laid either in the county where the offence was *committed, or in that in which the offender was apprehended. 42 G. 3. c.

81. s. 3.

Evidence.

Where

Prove a larceny of the letter, as directed, ante, p. 114-127. the defendant obtained the mail bags from the post office, pretending that he was the mail guard, and then ran away with them ;-the jury, being of opinion that he got possession of them with intent to steal them, found him guilty; and the judges afterwards held the conviction to be right. R. v. Pearce, 2 East, P. C. 603. Taking the mail bags off the horse, during the momentary absence of the person employed to carry them, was holden to be a, taking from his possession, within the meaning of stat. 52 G. 3. c. 143. s. 2. R. v. Robinson, 2 Stark. 485. Persons in the employment of the post office, and to whose care the letters are entrusted, are not within the meaning of these statutes; R. v. Scutt, 1 Leach, 106. 2 Id. 904. R. v. Pooley, 2 Leach, 904; embezzlement by them, is provided against by other statutes. See the next section.

*

Indictment for Stealing Deer.

Commencement, as ante, p. 113.] In a certain inclosed park belonging to J. N., wherein deer had been and then were usually kept, one fallow deer of the price of forty shillings, the property of the said J. N. then and there (to wit, in the said park) being found then and there wilfully and feloniously, without the consent of the said J. N., and without being otherwise authorized, did kill, 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 7 years. 42 G. 3. c. 107. s. 1. The statute

also extends to hunting, snaring, and wounding deer, and to shooting at or otherwise attempting to kill them.

Evidence.

Prove the taking, &c., as you would sheepstealing; see ante, p. 128. Prove that the park was, at the time of the felony, inclosed, and that deer were usually kept in it; and prove the park to belong to J. N. Prove that the deer taken was the property of J. N. And lastly, you must prove that the deer was taken without the consent of J. N.; R. v. Rogers, 2 Camp. 654. ante, p. 66.; and J. N. himself will be a competent witness for this purpose.

*Indictment for being in a deer park, armed and disguised. [133]

Commencement, as ante, p. 113] Being armed with a sword and with other offensive weapons, and having his face blacked [or “being disguised, that is to day, being-here describe the disguise] into and in a certain park, there situate, belonging to J. N., inclosed with pales [or a wall or fence] wherein deer had been, and then were, usually kept, unlawfully and feloniously did enter and appear 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, death, 9 G. 1. c. 22. s. 1. The venue may be laid in any county, at the option of the prosecutor. Ante, p. 3.

Evidence.

Prove that the defendant was in the park, armed and disguised in the manner stated in the indictment; prove the park to belong to J. N. ; prove it to be inclosed with pales, &c. as alleged in the indictment; and prove it to be a place where deer were usually kept.

Indictment for Stealing Conies.

Commencement, as ante, p. 113.] About the hour of eleven in the night of the same day, into a certain warren called there situate (and which said warren was then lawfully used and kept for the breeding and keeping of conies, and then in the occupation of J. N.) wilfully and wrongfully did enter, and then and there, in the night time as aforesaid, wilfully and wrongfully did take 20 conies, of the price of five shillings, against the will of the said J. N., so being then and there occupier of the said warren as aforesaid 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. Add a similar count for killing conies, if it seem necessary. Seven years transportation, or a less punishment by whipping, fine, or imprisonment, at the discretion of the court. 5 G. c. 14. s. 6.

Evidence.

Prove a taking or killing; prove it to have been in the night time, as in the case of burglary; prove that J. N. was occupier of the warren, at the time the offence was committed, and that the warren was then used for the breeding and keeping of conies. It is immaterial whether the warren was inclosed or not,