the skins. Held that the removing of the sheep from the fold was sufficient to constitute larceny. (1)

An indictment for stealing live animals need not state them to be alive, for the law will presume them to be so, unless the contrary be stated. If, when stolen the animal was dead, the fact should be stated; (2) unless it be an animal which has the same appellation whether it be alive or dead, in which case it need not be stated to be dead. (3)

332. Stealing dogs, birds, beasts, etc.-Every one is guilty of an offence and liable, on summary conviction, to a penalty not exceeding twenty dollars over and above the value of the property stolen, or to one month's imprisonment with hard labour, who steals any dog, or any bird, beast or other animal ordinarily kept in a state of continement or for any domestic purpose, or for any lawful purpose of profit or advantage.

2. Every one who, having been convicted of any such offence, afterwards commits any such offence is liable to three months' imprisonment with hard labour. R.S.C., c. 164, s. 9.

See article 501, post, as to the punishment for wilfully killing' maiming or injuring any such dog, bird, beast or other animal.

A person who kills any such dog, or any bird, etc., with intent to steal the carcase, skin, plumage or other part thereof, is, by the terms of article 307, ante, guilty of stealing it; and will therefore be punishable under the above article, 332.

333. Pigeons.-Every one who unlawfully and wilfully kills, wounds or takes any house-dove or pigeon, under such circumstances as do not amount to theft, is guilty of an offence and liable, upon complaint of the owner thereof, on summary conviction, to a penalty not exceeding ten dollars over and above the value of the bird. R.S.C., c. 164, s. 10.

See remarks of English Commrs., at p. 268, ante.

See also the first clause of article 304, ante, under which tame pigeons, while in a dovecote, or on their owner's land are capable of being stolen. The punishment would be under article 332, ante, article 501 post, provides for the punishment of injuries to birds, etc.

334. Oysters.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who steals oysters or oyster brood.

2. Every one is guilty of an indictable offence and liable to three months' imprisonment who unlawfully and willfully uses any dredge or net, instrument or engine whatsoever, within the limits of any oyster bed, laying or fishery, being the property of any other person, and sufficiently marked out or known as such, for the purpose of taking oysters or oyster brood, although none are actually taken, or unlawfully and willfully with any net, instrument or engine, drags upon the ground of any such fishery.

(1) R. v. Rawlins, 2 East, P. C. 617.

(2) R. v. Edwards, R. & R. 497; R. v. Halloway, 1 C. & P. 128; R. v. Williams, 1 Moo. C. C. 107.

(3) R. v. Puckering, 1 Moo. C. C. 242.

3. Nothing herein applies to any person fishing for or catching any swimming fish within the limits of any oyster fishery with any net, instruments or engine adapted for taking swimming fish only. R.S.C., c. 164, s. 11.

Article 619 (e), post, provides that for an offence under the above section it shall be sufficient if the indictment describes the oyster bed, etc., by name or otherwise, without stating it to be in any particular county or place.

335. Things fixed to buildings or land.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who steals any glass or woodwork belonging to any bulling whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metal or other material, or of both, respectively fixed in or to any building whatsoever, or any thing made of metal fixed in any land, being private property, or for a fence to any dwelling-house, garden or area, or in any square or street, or in any place dedicated to public use or ornament, or in any burial ground. R.S.C., c. 164, s. 17.

See the English Commrs' remarks at p. 268, ante, and also see article 303, ante.

An unfinished building intended as a cart-shed, boarded up on all sides, and with a door with a lock on it, and the frame of a roof with loose gorse thrown upon it, it not being yet thatched, was held under the English Statute on this subject to be a building. (1)

An indictment for stealing lead fixed to a certain wharf was held to be sufficient, the wharf being proved to be in fact a building. (2)

It was held that a church yard was a place dedicated to public use, and that it was larceny to take away brass affixed to a tomb stone in the church yard; although, at that time, the words " or in any burial ground" were not in the Englih Statute; (3) and it has been held that the stealing of a copper sun-dial fixed on the top of a wooden post in a church yard was within the statute. (4)

336. Stealing trees, etc.-Every one is guilty of an indictable offence and liable to two years' imprisonment who steals the whole or any part of any tree, sapling or shrub, or any underwood, the thing stolen being of the value of twenty-five dollars, or of the value of five dollars if the thing stolen grows in any park, pleasure ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwellinghouse. R.S.C., c. 164, s. 18.

337. Every one who steals the whole or any part of any tree, sapling or shrub, or any underwood, the value of the article stolen, or the amount of the damage done, being twenty-five cents at the least, is guilty of an offence and liable, on summary conviction, to a penalty not exceeding twenty-five dollars over and above the value of the article stolen or the amount of the injury done.

2. Every one who, having been convicted of any such offence,

(1) R. v. Worrall, 7 C. & P. 516.

(2) R. v. Rice, Bell, 87; 28 L. J. (M. C.) 64.

(3) R. v. Blick, 4 C. & P. 377.

(4) R. v. Jones, Dears, & B, 555; 27 L. J. (M. C.) 171.

afterwards commits any such offence is liable, on summary conviction, to three months' imprisonment with hard labour.

3. Every one who, having been twice convicted of any such offence, afterwards commits any such offence is guilty of an indictable offence and liable to five years' imprisonment. RS.C., c. 164, s. 19.

The words" adjoining any dwelling-house" have been held to import actual contact; and that therefore ground separated from a house by a narrow walk, and paling, wall, or gate, was not within their meaning. (1)

The injury must be the actual injury to the tree itself, and does not include consequential damage; and where the evidence that the actual injury done to certain trees by the defendant was less than the statutable amount but that the injury done would necessitate the stubbing up and replacing part of an old hedge at an expense greater than the statutable amount, it was nevertheless held insufficient. (2)

As to wilful destruction of or damage to trees, vegetables plants, etc., seearticles 508, 509, and 510, post.

338. Timber Found Adrift.-Every one is guilty of an indictable offence and liable to three years' imprisonment who

(a.) without the consent of the owner thereof:

(i.) fraudulently takes, holds, keeps in his possession, collects, conceals, receives, appropriates, purchases, sells or causes or procures or assists to be taken possession of, collected, concealed, received, appropriated, purchased or sold, any timber, mast, spar, saw-log or other description of lumber which is found adrift in, or cast ashore on the bank or beach of, any river, stream or lake ;

(ii) wholly or partially defaces or adds, or causes or procures to be defaced or added, any mark or number on any such timber, mast, spar, saw-log or other description of lumber, or makes or causes or procures to be made any false or counterfeit mark on any such timber, mast, spar, saw-log or other description of lumber; or

(b.) refuses to deliver up to the proper owner thereof, or to the person in charge thereof, on behalf of such owner, or authorized by such owner to receive the same, any such timber, mast, spar, sawlog or other description of lumber. R.S.C., c. 164, s. 87.

See Article 708, post, as to evidence of ownership etc.

339. Stealing fences stiles and gates.—Every one who steals any part of any live or dead fence, or any wooden post, pale, wire or rail set up or used as a fence, or any stile or gate, or any part thereof respectively, is guilty of an offence and liable, on summary conviction, to a penalty not exceeding twenty dollars over and above the value of the article or articles so stolen or the amount of the injury done.

2. Every one who, having been convicted of any such offence, afterwards commits any such offence is liable, on summary conviction, to three months, imprisonment with hard labour. R.S.C., c. 164. s. 21.

(1) R. v. Hodges, M. & M. 341.

(2) R. v. Whiteman Dears, 353; 23 L. J. (M. C.) 120.

340. Failing to satisfy justice that possession of tree &c. is lawful. -Every one who, having in his possession, or on his premises with his knowledge, the whole or any part of any tree, sapling or shrub, or any underwood, or any part of any live or dead fence, or any post, pale, wire, rail, stile or gate, or any part thereof, of the value of twenty-five cents at the least, is taken or summoned before a justice of the peace, and does not satisfy such justice that he came lawfully by the same, is guilty of an offence and liable, on summary conviction, to a penalty not exceeding ten dollars, over and above the value of the article so in his possession or on his premises. R.S.C., c. 164, s. 22.

341. Stealing roots plants, &c.-Every one who steals any plant, root, fruit or vegetable production growing in any garden, orchard, pleasure ground, nursery ground, hot-house, green house or conservatory is guilty of an offence and liable, on summary conviction, to a penalty not exceeding twenty dollars over and above the value of the article so stolen or the amount of the injury done, or to one month's imprisonment with or without hard labour.

2. Every one who, having been convicted of any such offence, afterwards commits any such offence is guilty of an indictable offence and liable to three years' imprisonment. R.S.C., c. 164, s. 23.

342. Every one who steals any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land, open or inclosed, not being a garden, orchard, pleasure ground, or nursery ground, is guilty of an offence and liable, on summary conviction, to a penalty not exceeding five dollars over and above the value of the article so stolen or the amount of the injury done, or to one month's imprisonment with hard labour.

2. Every one who, having been convicted of any such offence, afterwards eommits any such offence is liable to three months' imprisonment with hard labour. R.S.C., c. 164, s. 24.

343, Stealing ores of metals.—Every one is guilty of an indictable offence and liable to two years' imprisonment who steals the ore of any metal, or any quartz, lapis calaminaris manganese, or mundic, or any piece of gold, silver or other metal, or any wad, black cawk, or black lead, or any coal, or cannel coal, or any marble, stone or other mineral, from any mine, bed or vein thereof respectively.

2. It is not an offence to take, for the purposes of exploration or scientific investigation, any specimen or specimens of any ore or mineral from any piece of ground uninclosed and not occupied or worked as a mine, quarry or digging. R.S.C., c. 164, s. 25.

Article 312, ante, has reference to fraudulently concealing from a partner in a mining claim any gold or silver taken from such claim; and article 354 provides the punishment for any such concealment.

See article 571, post, with reference to warrants to search unlawfully deposited gold or silver which has been mined, etc.

344. Stealing from the person.--Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who steals any chattel, money or valuable security from the person of another. R.S.C., c. 164, s. 32.

To constitute this offence, the thing must be taken either from the person of the prosecutor, or in his presence. (1) The taking from the person distinguishes this offence from simple theft; and it differs from robbery in the fact that, although the taking is from the person, it is not accompanied with violence or so done as to put the owner or possessor of the thing in fear.

If the goods have not been completely severed from the person of the prosecutor or completely taken into the physical possession of the offender, it seems that it will not be sufficient to constitute this offence, although the moving of the thing may, under the terms of sub-section 4 of article 305, ante, be sufficient to constitute simple theft.

Where A drew a book from the inside of B's coat pocket about an inch above the top of the pocket, but, whilst the book was still about B's person, B. suddenly put up his hand, when A. let go his hold and the book dropped back into the pocket. Held not to constitute stealing from the person, but it was held to be a simple larceny. (2)

A's watch, (which he carried in his vest pocket), was fastened to a chain, the other end of which was passed through a button-hole of the vest and kept there by a watch-key. B. took the watch out of A's vest pocket and forcibly drew the attached chain and key out of the button-hole, but the key, after passing clear of the button-hole, caught upon a button on another part of the vest, an A's hand being, at that moment, seized, the watch and chain fell from his hand and remained there, suspended to the button on which it caught. Held, to be such a severance as amounted to stealing from the person; (3) and where the defendant snatched at a lady's ear-ring, and succeeded in separating it from the ear and it was afterwards found among the curls of her hair, it was held to be a severance. (4)

Where a man went to bed with a prostitute, and she, while he was asleep, stole the watch, which he had left in his hat on the table, it was held to be a stealing in a dwelling-house, and not a stealing from the person. (5)

345. Stealing in dwelling houses.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who—

(a) steals in any dwelling-house any chattel, money or valuable security to the value in the whole of twenty-five dollars or more; or,

(b.) steals any chattel, money or valuable security in any dwellinghouse, and by any menace or threat puts any one therein in bodily fear. R.S.C., c. 164, ss. 45 and 46.

The things stolen must be under the protection of the house, and in order to bring the offence within the operation of clause (a) they must be of the value of $25; or, if they are of less than that value, they must be stolen by some menace or threat putting some one in the house in bodily fear, in which case it will come within clause (b).

(I) R. v. Francis, 2 Str. 1015; R. v. Grey, 2 East, P. C. 708; R. v. Hamilton, 8 C. & P. 49.

(2) R. v. Thompson, 1 Mood. 78.

(3) R v. Simpson, Dears. 621; 24 L J. (M. C.) 7.

(4) R. v. Lapier, 1 Leach, 320.

(5) R. v. Hamilton, 8 C. & P. 49.