and that the said M. G. on the said, &c. was the true and real proprietor of the said one hundred pounds share, of and in the said last mentioned annuities. And the jurors, &c. do further present, that the said H. B. well knowing the premises, but wickedly devising and intending the governor and company of the bank of E. to deceive and defraud, to wit, on the said, &c. with force and arms, at, &c. aforesaid, falsely, deceitfully, and feloniously did personate the said M. G. the true and real proprietor of the said one hundred pounds share of and in the said last mentioned annuities, and thereby did then and there feloniously transfer the said one hundred pounds share of the said M, G. of and in the said last mentioned annuities, unto one R. B. as if he the said R. B. then was the true and real proprietor of the said one hundred pounds share, of and in the said annuities, against the form of the Second count. statutes, &c. and against the peace, &c. And the jurors, &c.

further present, that the said M. G. on the said, &c. was possessed of, and entitled to a certain other share, to wit, one hundred pounds share of and in certain annuities in respect of which the proprietor of the said last mentioned annuities then had transferable shares, of and in the said capital stock of annuities established by certain other acts of parliament, that is to say, by, &c. [set forth all the acts as above] in proportion to their respective annuities, and that he the said M. G. &c. [as in last count,] against the form of the statute, &c. and against the peace, &c.

For a capital

felony, on 9

INDICTMENTS FOR KILLING, WOUNDING, AND
POISONING ANIMALS.

That A. H. late of, &c. being an ill-designing and disorderly

Geo. I. c. 22. person, and of a wicked and malicious mind, after the first day of

in maliciously killing a gelding. (a)

(a) See other precedents post, 1087,8. 2 Bla. Rep. 721. Cro. C.C. 83, 4. Starkie, 553, 4. A precedent for killing a mare; first count for killing, second count for maiming, third count for killing a gelding. 6 Wentw. 372. This offence is founded on 9 Geo. I. c. 22. commonly called the Black Act, which we have already had occasion to notice so frequently. The clause which relates to it makes it felony without benefit of clergy to unlawfully

and maliciously "kill, maim, or wound, any cattle." Within the term cattle in this act horses are included; and need not in the indictment be specially averred to be cattle, 2 Bla. Rep. 721. But to bring the case within the statute, the offender must be ac tuated by malice against the owner of the animal killed or maimed, and not merely against the animal itself. And, therefore, if a person wound an animal belonging to an

June, in the year of our lord one thousand seven hundred and twenty three, to wit, on, &c. with force and arms, at, &c. one black gelding of the price of fourteen pounds, of the goods and chattels of one J. J. in a certain field belonging to him the said J.J. then and there being feloniously, unlawfully, wilfully, and maliciously then and there did kill and destroy, to the great damage of him the said J. J. against the form of the statute, &c. and against

the peace, &c.

Geo. I. c. 22.

That P. C. late of, &c. being an ill-designing and disorderly For a capital person, and of a wicked and malicious mind and disposition, after felony on 9 the first day of June, in the year of our lord one thousand seven for maliciously maiming a hundred and twenty three, to wit, on, &c. with force and arms, at, cows. (b) &c. aforesaid, one cow of the price of seven pounds, of the goods and chattels of C. J. in a certain barton belonging to him the said C. J. then and there being feloniously, unlawfully, wilfully, and maliciously, then and there did maim and wound, to the great damage of the said C. J. against the form of the statute, &c. and against the peace, &c.

That A. B. late of, &c. on, &c. at, &c. aforesaid, in a certain On the same

other from the sudden impulse of passion towards it, it has been held that he is not within the act, 1 Leach, 527. and in notes. But it is not necessary to give evidence of express malice against the owner which will be presumed until the contrary appears, 2 East, P. C. 1074. And in Dawson's case, who was indicted for poisoning horses in order to prevent them from running the race, defendant having betted against them, it was holden that this intent was sufficient to bring the case within the act, and the defendant was convicted. M. S. S. See the indictment post. If, however, it appears on the evidence that the defendant was a servant to the prosecutor, and, in irritation because his master would not let him have another horse to drive in a teem, he committed the injury on the horse which he desired to have exchanged, he will not be deemed within the act, 1 Leach, 539. Nor will a man who maims sheep to prevent their trespassing on an inclosure id. ibid. in notis. To bring the case within this act it is

act for maiming a gelding not necessary that the cattle should in a field in die in consequence of the maim- another form. ing; nor is it even essential that (c) the injury done to them should be permanent id. ibid. in notis. It has been holden that aiders and abettors are, under this act, excluded from clergy as well as principals in the first degree, though they are not specifically named. But as the contrary opinion is strenuously maintained by Mr. Justice Foster, whose knowledge of criminal law renders his opinion of great weight, the point is at least doubtful. See the case of Midwinter and Sims, with Mr. J. Foster's argument, Fost. 415 to 430. 1 Leach, 66, 7. in notis.— Indictment. The venue may be laid in any county, 2 Bla. Rep. 733. It is not necessary to aver that the animals are cattle in order to bring them within the statute, id. ibid.

(b) See a similar precedent, Cro. C. C. 83. Starkie, 554.

(c) See similar precedents, Cro. C. C. 84. Cro. C. A. 26. Starkie, 554.

On the same

open piece or parcel of ground, there called the Marsh, with a certain sharp instrument called a bill-hook, made of iron and steel, of the value of two shillings, which he the said J. B. in his right hand then and there had and held feloniously, unlawfully, wilfully, and maliciously did strike a certain black gelding, then being of the price of twenty pounds, in and upon the left shoulder of the said gelding, (the same then and there being the property of some person or persons, to the jurors aforesaid as yet unknown) giving to the said gelding, then and there, by such striking as aforesaid, in and upon the said left shoulder of the said gelding, one deep wound of the breadth of five inches, and of the depth of four inches, and thereby did then and there feloniously, unlawfully, wilfully and maliciously maim and wound the said gelding, against the form of the statute, &c. and against the peace, &c.

That D. D. late of, &c. being an ill designing and disorderly act for poison- person, and of a wicked and malicious mind, after the first day of ing a mare. (d) June, in the year of our lord one thousand seven hundred and twenty three, to wit, on, &c. aforesaid, with force and arms, at, &c. aforesaid, one mare of great value, to wit, of the value of 201. of the goods and chattels of one W. A. there then being feloniously, unlawfully, wilfully, and maliciously then and there did kill and destroy, by having before then, (that is to say) on, &c. aforesaid, in the said, &c. wilfully, maliciously, and unlawfully put and infused into, and mixed with certain water then and there being in a certain trough, in, &c. 'aforesaid, used for the purpose of watering horses, and at which said trough the said mare of the said W. A. was usually watered, a certain quantity of deadly poison, to wit, white arsenic, and of which said water, wherein the said poison had been so put and intused, and mixed as aforesaid, the said mare of the said W. A. afterwards, to wit, on the said, &c. at, &c. aforesaid, did drink, and by reason of and in consequence thereof, the same mare then and there became and was poisoned, and afterwards, to wit, on, &c. last aforesaid, did by reason and occasion of her having been so poisoned as aforesaid, die, to wit, at, &c. aforesaid, to the great loss and damage of the said W. A. against the form of the statute, &c. Second count. and against the peace, &c. And the jurors, &c. do further present that the said D. D. being such ill designing and disorderly person, and of such wicked and malicious mind as aforesaid, after the said first day of June, in the year of our Lord 1723, aforesaid, to wit, on the said, &c. at, &c. aforesaid, one mare of

(d) This was the indictment against Dawson for placing poison in horse troughs, on which he

was convicted and executed, ante 1087.

great value, to wit, of the value of twenty pounds of the goods. and chattels of the said W. A. there then being feloniously, unlawfully, wilfully, and maliciously then and there did kill and destroy, by having before then, to wit, on, &c. last aforesaid, in the said, &c. wilfully, maliciously, and unlawfully put and infused into, and mixed with certain water, whereof the said mare of the said W. A. was accustomed to drink, a certain quantity of deadly poison, to wit, white arsenic, and of which said water, wherein the said poison had been so put and infused, and mixed as aforesaid, the said mare of the said W. A. afterwards, to wit, on the said, &c. at, &c. aforesaid, did drink, and by reason and in consequence thereof, the same mare then and there became and was poisoned, and afterwards, to wit, on, &c. last aforesaid, by reason and on occasion of her having been so poisoned as aforesaid, did die, to wit, at, &c. aforesaid, to the great loss and damage of the said W. A. against the form of the statute, &c. and against the peace, &c. And the jurors, &c. do further present, that the said D. D. being Third count. such ill-designing and disorderly person, and of such wicked and malicious mind as aforesaid, after the said, &c. to wit, on the said, &c. at, &c. aforesaid, one other mare of the value of twenty pounds of the cattle, goods, and chattels, and property of the said W. A. there then being, feloniously, unlawfully, wilfully, and maliciously then and there did kill and destroy, to wit, by then and there causing and procuring the same mare to take and swallow a certain quantity of certain deadly poison, to wit, arsenic, of which the said last mentioned mare then and there died, to the great damage of the said W. A. against the form of the statute, &c. and against the peace, &c. And the jurors, &c. do further present, Fourth count. that the said D. D. being such ill-designing and disorderly person, and of such wicked and malicious mind as aforesaid, after the said, &c. aforesaid, to wit, on the said, &c. with force and arms, at, &c. aforesaid, one other mare of the value of twenty pounds of the cattle, goods, chattels, and property of the said W. A. there then being feloniously, unlawfully, wilfully, and maliciously then and there did kill and destroy, that is to say, by poison, to the great damage of him the said W. A. against the form of the statute, &c. and against the peace, &c.

1090

CHAPTER XVI.

INDICTMENTS FOR OFFENCES TO HABITA-
TIONS AND REAL PROPERTY.

BURGLARY. (e)

PRELIMINARY NOTES.

The offence. THE word burglary is a compound of the Saxon terms burgh a house, and laron theft; and originally signified no more than the robbery of a dwelling. But it is now defined to be the breaking and entering the house of another in the night time with intent to commit a felony, whether the felony be actually committed or not. Jac. Dic. Burglary, 3 Inst. 63. The circumstances essential to to be considered, are-in what place it must be done at what time by what means-and with what intention; and these points we will separately consider.

Place in which

be committed.

I. In what place burglary may be committed. It must, in burglary may general, be committed in a mansion house; though the ancient books speak of it also in relation to the walls of a town, and it has always been holden, that it may take place in a church or chapel. The latter is placed by Lord Coke, on the ground that a consecrated place is the mansion house of God, 3 Inst. 64. but this idea is opposed by Hawkins, and seems to rest on very unsubstantial foundations, Hawk. b. 1. c. 38. s. 17. The principal

(e) As to this offence in general, see 3 Inst. 63 to 66. 1 Hale, 547 to 565. Hawk. b. 1. c. 38. Com. Dig. Justices P. 2. &c. Bac. Abr.

Burglary. 2 East, P. C. 481 to 523. 4 Bla. Com. 223 to 228. Burn J. Burglary. Dick. J. Burglary. Jac. Dic. Burglary.