8. Being armed, &c., with intent to break and enter a Dwelling-house, &c. to wit. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of in the year of our Lord was found by night, to wit, at the hour of eleven in the night of the same day [armed with a certain dangerous and offensive weapon and instrument, to wit, a with intent then to break and enter into a dwelling-house, and to commit a felony therein :-Or, having then in his possession, without lawful excuse, twenty picklock keys, and divers implements of housebreaking, to wit, one crow, one jack, and one bit :-Or, having his face blackened and being otherwise disguised, with intent to commit a felony :Or, in the dwelling house of one C. D., situate at in the county of with intent to commit a felony therein:] against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor; imprisonment, with or without hard labour, for not more than three years. 14 & 15 Vict. c. 19, s. 1. If committed after a previous conviction for felony, or for such misdemeanor,-transportation for not more than ten nor less than seven years,—or imprisonment with or without hard labour, for not more than three years; and in the indictment, in stating the former conviction, it shall be sufficient to state that the defendant was at a certain time and place, convicted of felony, or of a misdemeanor against "the Act for the better prevention of offences, 1851," as the case may be, without otherwise describing the previous felony or misdemeanor. Id. s. 2. Evidence. There are four offences defined by stat. 14 & 15 Vict. c. 19, s. 1. They are all set out in the above form, so that an indictment may be drawn from it for any one of them. The evidence will consist of proof of the facts stated in the indictment, and that the defendant was found, under the circumstances there stated, in the night time, (which time is the same as in burglary, 14 & 15 Vict. c. 19, s. 13,) namely, between the hour of nine at night and six in the morning. See ante, p. 328. Upon an indictment for one of these offences after a former conviction, the former conviction may be proved by a certifi cate, containing the substance and effect only (omitting the formal part) of the former indictment and conviction, purporting to be signed by the clerk of the court or other officer having the custody of the record, or his deputy; and proof of identity. 14 15 Vict. c. 19, s. 2. As to stealing from a dwelling-house, see post, tit. "Larceny." And as to setting fire to a dwelling-house, &c., see post. tit. "Malicious Injuries." SECTION IV. Offences against the Property of Individuals, by Stealing, Embezzling, Cheating, or Receiving. The offences I mean to include in this section, I shall treat of under the following heads: to wit. 1. Simple Larceny at Common Law. 2. Larceny of Valuable Securities. 6. Stealing in a Dwelling-house or Building. 7. Stealing from Ships, Wharfs, &c. 8. Stealing by Tenants or Lodgers. 9. Stealing by Clerks or Servants. 10. Embezzlement. 11. Cheating or defrauding. 12. Receiving Goods stolen, &c. 1. Simple Larceny at Common Law. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of in the year of our Lord feloniously did steal, take, and carry away [certain money of C. D., and one gold watch, two cloth coats, and five linen shirts, of the goods and chattels of the said C. D.]: against the peace of our Lady the Queen, her crown and dignity. [As to other counts, see post, p. 360.] Felony; imprisonment [with or without hard labour, and the imprisonment solitary for the whole or any portion of the time, s. 4,] for not more than two years, and if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall think fit. 7 & 8 G. 4, c. 29, s. 3. By this Act the offender might be transported, or imprisoned, &c. But so much of the Act as related to transportation, was repealed by stat. 12 Vict. c. 11, s. 1, except with respect to such offenders as, having been twice summarily convicted of offences against 7 & 8 G. 4, c. 29, or against the statute for the punishment of juvenile offenders (ante, p. 59), should afterwards commit the offence of simple larceny. 12 Vict. c. 11, s. 3. Indictment.] As to the venue, see ante, p. 69. The indictment must charge that the defendant took and carried away the goods, or, in horse stealing, that he took and led away the horse, or, in an indictment for stealing cattle or sheep, that he took and drove them away. 1 Hale, 504, 508. 2 Hale, 184. 1 Hawk. c. 33, s. 1. And it must state that it was done feloniously, for otherwise the taking described would be a mere trespass; no other word is equivalent to it. 2 East, P. C. 778. The goods must be described with sufficient certainty in the indictment, in order to show that they are such things as are the subject of larceny. Where a person was indicted for stealing "three eggs of the value of two pence," Tindal, C. J., held the indictment bad, for not stating what sort of eggs they were; for all that appeared in the indictment, they might be adders' eggs or other eggs, which could not be the subject of larceny. R. v. Cox, 1 Car. & K. 494. In an indictment for a larceny of live animals, it is not necessary to state them to be alive, because the law will presume them to be so, unless the contrary be stated; but as to dead animals, it was formerly holden that the indictment should in all cases describe them as being so, otherwise it would be a misdescription, and fatal. And therefore, where upon an indictment for stealing two turkies, it appeared that the turkies were dead when they were stolen: Hullock, B., held this to be a fatal variance; for "turkies" mean live turkies. R. v. Halloway, 1 Car. & P. 128. And the rule is so still, with respect to animals, the stealing of which is made additionally penal by statute, such as horses, oxen, cows, sheep; if they be dead when stolen, it must be so stated in the indictment; for upon an indictment for stealing a horse, ox, or sheep, you cannot give in evidence the stealing of a dead one, for that is only simple larceny at common law. But in all cases of stealing animals, where it is the same offence whether they are dead or alive, such as poultry, &c., 66 which are the subject of larceny at common law, it is no longer deemed necessary to state that they were dead at the time they were stolen. Where a man was indicted for receiving a lamb," knowing it to have been stolen, it appeared that the lamb had been killed at the time he received it, and it was objected that it was misdescribed in the indictment: upon the point being reserved for the opinion of the judges, they held that the objection ought not to prevail; for this being a case of receiving, it was immaterial to the prisoner's offence whether the lamb was alive or dead; in either case his offence and punishment were the same. R. v. Puckering, Ry. & M. 242. Where a man was indicted for stealing "one sheep," and it appeared that the animal was between nine and twelve months old, and some of the witnesses called it a sheep, some a lamb, but the jury said that in common parlance it was called a lamb: the prisoner being convicted, the judges held the conviction to be right, as the word "sheep" being general, was applicable to one of that age, whatever in common parlance it might be called. R. v. Spicer, 1 Car. & K. 699. Where a man was indicted for stealing "one ham, of the value of 108., of the goods and chattels of Thomas Keighway,' "and it was objected that the description was not sufficient, as it might be the ham of some wild animal, which would not be the subject of larceny: the judges, however, held it to be sufficient, for even if it were the ham of a wild animal, it might be of value, and the subject of larceny, the rule as to animals feræ naturæ applying only to the live animal. R. v. Gallears, 2 Car. & K. 981, 19 Law J. 13, m. So where the prisoner was indicted for receiving " twenty-eight pounds of tin," and it appeared that what he had received were two lumps of tin, called in the trade ingots; and it was objected that they ought to have been so called in the indictment: but Coleridge, J., held that they were properly described as so many pounds weight of tin; if the ingots were some article which in ordinary parlance was called by a particular name of its own, it would be improper to call it by the name of the material of which it was composed; in speaking of a piece of cloth, you could not call it so many pounds weight of wool; in speaking of sovereigns, you could not call them so many ounces of gold; but here, this is the material itself, and is properly described as so many pounds weight of tin; so, in larceny of a bar of iron, it would be properly described as so many pounds weight of iron. R. v. Mansfield, Car. & M. 140. But where a man was indicted in the county of Hereford for stealing a brass furnace in that county, and it appeared that he stole it in Radnorshire, broke it in pieces, and brought it into Herefordshire, where he was apprehended: Hullock, B., held that the evidence R. v. did not support the indictment, for he never had the brass furnace in Herefordshire, but merely pieces of brass. Halloway, 1 Car. & P. 127. But by stat. 14 & 15 Vict. c. 100, s. 5, in any indictment for stealing any instrument, it shall be sufficient to describe it by any name or designation by which it may be usually known, or by the purport of it, without setting out any copy, or otherwise describing the same, or the value thereof. And by sect. 18, in any indictment in which it shall be necessary to make any averment as to any money, or any note of the Bank of England, or any other bank, it shall be sufficient to describe such money or bank note simply as money, without specifying any particular coin or bank note; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin, or of any bank note, although the particular species of coin of which such amount was composed, or the particular nature of the bank note, shall not be proved. And by sect. 24, no indictment shall be deemed insufficient, for want of the statement of the value or price of any matter or thing, in any case where the value or price is not of the essence of the offence. Since the distinction between grand and petty larceny was abolished by stat. 7 & 8 G. 4, c. 29, s. 2, it seems to have been no longer necessary to insert the value of the articles stolen in an indictment for larceny, except for stealing to the value of 51. in a dwellinghouse. It was said, indeed, by some, to be necessary to show that the thing was of some value; but this was sufficiently shown, by stating it to be of the goods and chattels of the prosecutor. As it can be of no use, therefore, in any case to insert it where the value or price is not of the essence of the offence, and as the 24th sect. of stat. 14 & 15 Vict. c. 100, above mentioned, sanctions its omission in all other cases, I have in practice omitted to insert it, except in the single case above mentioned. The thing stolen must be described as the property either of the actual owner, or of a person having a special property as bailee, and from whose possession it has been taken. If the things stolen be personal chattels, they are described as the "goods and chattels" of C. D.; if money, as the "money" of C. D.; if they be choses in action, or things fixed to the freehold, which are not personal chattels, and were not the subject of larceny at common law, they are described as the "property" of C. D. Where a man was indicted for stealing "two shillings, of the goods and chattels" of C. D., and this being objected to, the point was reserved for the opinion of the criminal appeal court: the judges held that the words "of the goods and chattels" |