buildings are within the Act, and an indictment for stealing lead fixed to a certain building without further description will suffice: Greaves' note; R. v. Parker, 2 East P. C. 592; R. v. Norris, R. & R. 69., An unfinished building boarded on all sides, with a door and a lock, and a roof of loose gorse, was held a building within the statute: R. v. Worrall, 7 C. & P. 516. So also where the lead stolen formed the gutters of two sheds built of brick, timber and tiles upon a wharf fixed to the soil, it was held that this was a building within the Act: R. v. Rice, Bell, 87. But a plank used as a seat, and fixed on a wall with pillars, but with no roof, was held not to be a building: R. v. Reece, 2 Russ. 254. 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.

The prisoners were found guilty of having stolen a copper sun-dial fixed upon a wooden post in a churchyard. Conviction held right: R. v. Jones, Dears. & B. 555.

The ownership of the building from which the fixture is stolen must be correctly laid in the indictment: 2 Russ. 255. If necessary, it may now be amended at the trial, and if not laid in the indictment at all the omission will not vitiate it.

Indictment for stealing metal, etc.

two

hundred pounds weight of iron, the property of J. N., then fixed in a certain land then being private property, to wit, in a garden of the said J. N., situate did unlawfully

steal.

TREES, SAPLINGS, ETC.

336. 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 dwelling-house. R. S. C. c. 164, s. 18. 24-25 V. c. 96, s. 32 (Imp.).

Fine, s. 958.

Injuring trees is provided for in s. 508, post.

The words "grounds adjoining" mean grounds in active contact with the dwelling-house. Whether the ground be a park or garden, etc., is a question for the jury. It seems it is not material that it should be in every part of it a park or garden: R. v. Hodges, M. & M. 341. The amount of injury mentioned in this and the following section must be the actual injury to the tree or shrub itself, and not the consequential injury resulting from the act of the defendant: R. v. Whiteman, Dears. 353. The respective values of several trees, or of the damage thereto, may be added to make up the twenty-five dollars, in case the trees were cut down, or the damage done as part of one continuous transaction: R. v. Shepherd, 11 Cox, 119.

Indictment for stealing trees, etc.. in parks, etc., of a value above five dollars.- one oak tree of the value of eight dollars, the property of J. N., then growing in a certain park of the said J. N., situate

park, unlawfully did steal.

Indictment under first part of the section.

in the said

one ash tree of the value of thirty dollars, the property of J. N., then growing in a certain close of the said J. N., situate in the said close, unlawfully did steal.

It is not necessary to prove that the close was not a park or garden, etc.

STEALING SAPLINGS, SHRUBS, ETC.

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, 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. R. S. C. c. 164, s. 19. 24-25 V. c. 96, s. 33 (Imp.).

Fine, under s-s. 3, s. 958.

Injuring trees, etc.: see post, s. 508, et seq.

Indictment under s-s. 3.

that J. S. on

one oak sapling of the value of forty cents, the property of J. N., then growing in certain land situate unlawfully did steal, and the jurors aforesaid, do say, that heretofore, and before the committing of the offence herein before mentioned, to wit, on

at

the said J. S. was duly convicted before J. P., one of Her said Majesty's justices of her peace for the said district of

for that he, the said J. S., on

(as in the first conviction); and the said J. S. was thereupon then and there adjudged, for his said offence, to forfeit and pay the sum of twenty dollars, over and above the value of the said tree so stolen as aforesaid, and the further sum of forty cents, being the value of the said tree, and also to pay the further sum of for costs; and in default of immediate payment of the said sums, to be imprisoned in the common gaol of the said district of for the space of unless the said sums should be sooner paid. And the jurors aforesaid, do further say, that heretofore and before the committing of the offence first herein before mentioned, to wit, on the said J. S. was duly convicted before O. P., one of Her said Majesty's justices of the peace for the said district of for that he (setting out the second conviction in the same manner as the first, and proceed thus). And so, the jurors aforesaid, do say, that the said J. S., on the day and year first aforesaid, the said oak sapling of the value of forty cents, the property of the said J. N., then growing in the said land situate unlawfully did steal: Greaves on s. 116 of the Larceny Act, and 37 of the Coin Act; R. v. Martin, 11 Cox, 343; see s. 628 and s. 676, post, as to previous convictions.

at

TIMBER FOUND ADRIFT.

338. 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, saw-log or other description of lumber. R. S. C. c. 164, s. 87.

Fine, s. 958.

See s. 572, post, as to search warrant, and s. 708, as to evidence.

STEALING FENCES, ETC.

339. 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. 24-25 V. c. 96, s. 34, (Imp.).

Injuring fences, etc.: see s. 507, post.

UNLAWFUL POSSESSION OF TREE, SAPLING, ETC.

340. 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.

"Having in possession" defined: s. 3.

This section does not apply to cord-wood: R. v. Caswell, 33 U. C. Q. B. 303.

PLANTS, ETC., IN GARDENS.

341. 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. 24-25 V. c. 96, s. 36 (Imp.).

Fine, s. 958; injuring plants, etc., s. 509, post.

The words plant and vegetable production do not apply to young fruit trees: R. v. Hodges, M. & M. 341. Stealing trees would fall under ss. 336 and 337.

that J. S., on

Indictment under s-s. 2.twenty pounds' weight of grapes, the property of J. N., then growing in a certain garden of the said J. N., situate unlawfully did steal; and the jurors aforesaid, do say that, heretofore, and before the committing of the offence hereinbefore mentioned, to wit, on the said J. S.,

at

was duly convicted before J. P., one of Her Majesty's justices of the said district of for that he, the said J. S.,

on

(as in the previous conviction) and the said J. S., was thereupon then and there adjudged for the said offence to forfeit and pay the sum of twenty dollars, over and above the value of the article so stolen as aforesaid, and the further sum of six shillings, being the amount of the said injury; and also to pay the sum of ten shillings for costs, and in default of immediate payment of the said sums, to be imprisoned in for the space of less the said sum should be sooner paid, and so the jurors aforesaid, do say, that the said J. S., on the day and in the year first aforesaid, the said twenty pounds' weight of grapes, the property of the said J. N., then growing in the said garden of the said J. N., situate unlawfully did steal.

See ss. 628 and 676, post, as to previous convictions.

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