forage, or stores, who shall embezzle or fraudulently misapply, or be concerned in or connive at the embezzlement, fraudulent misapplication, or damage, of any money, provisions, forage, arms, clothing, ammunition, or other military stores belonging to her Majesty's forces or for her use, may be tried for the same by a general courtmartial, which may adjudge any such offender to be transported, as a felon for life or for any certain term of years, or to suffer such punishment of fine, imprisonment, dismissal from her Majesty's service, and incapacity of serving her Majesty in any office civil or military, as such court shall think fit, according to the nature and degree of the offence, and every such offender shall, in addition to any other punishment, make good at his own expense the loss and damage sustained, which shall have been ascertained by such courtmartial; and the loss and damage so ascertained as aforesaid shall be a debt to her Majesty, and may be recovered in any of her Majesty's courts at Westminster or in Dublin, or the court of exchequer in Scotland or in any court in her Majesty's colonies, where a person sentenced by such court martial shall be resident after the said judgment shall be confirmed and made known." (c) The offences of knowingly receiving, or concealing naval or military stores which have been stolen, or of unlawfully having possession of naval or military stores, will be mentioned in a subsequent chapter. (e) And see a similar provision in the Marine Mutiny Act, 5 Vict. c. 12, s. 16. CHAPTER THE TWENTY-THIRD. 7 & 8 Geo. 4, certain goods in process of manufacture, punishable by transportation, OF LARCENY OF CLOTH AND OTHER ARTICLES IN A PROCESS OF PARTICULAR provisions have been enacted by several statutes for punishing the embezzlement of articles in a course of manufacture, which as they relate to petty offenders, (principally workmen employed in particular manufactories) and subject them to the summary jurisdiction of justices of the peace, do not come within the scope of this treatise. (a) The 7 & 8 Geo. 4, c. 29, s. 16, enacts, "that if any person shall c. 29. Stealing steal to the value of ten shillings any goods or article of silk, woollen, linen or cotton, or of any one or more of these materials mixed with each other, or mixed with any other material, whilst laid, placed or exposed during any stage, process, or progress of manufacture, in any building, field, or other place, every such offender being convicted thereof shall be liable to any of the punishments which the court may award as hereinbefore last mentioned." &c. Principals in the second degree, and accessories. The 1 Vict. c. 90, s. 2, recites this section and enacts, that so much of the said act as relates to the punishment of persons convicted of any of the offences hereinbefore specified as in that act contained shall from and after the commencement of this act (1st October, 1837) be repealed; and that "every person convicted after the commencement of this act of any of such offences respectively shall be liable to be transported beyond the seas for any term not exceeding fifteen years nor less than ten years, or to be imprisoned for any term not exceeding three years." And by sec. 3, "it shall be lawful for the court to direct such imprisonment to be with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." By the 7 & 8 Geo. 4, c. 29, s. 61, principals in the second degree and accessories before the fact are punishable in the same manner as principals in the first degree; and accessories after the fact, (except receivers of stolen property) are liable to be imprisoned for any term not exceeding two years. (b) (a) The greater part of them will be found collected and well arranged in 5 Burn's Just. tit. Servants. (b) Ante, p. 2. As sec. 61 only relates to felonies punishable under that act, it admits of doubt whether principals in the 18 Geo. 2, Some questions may possibly arise upon the words "laid, placed Cases upon the or exposed during any stage, process or progress of manufacture in repealed act any building, field, or other place." In a case in which the prisoner c. 27. was indicted upon the 18 Geo. 2, c. 27, (now repealed,) for stealing yarn out of a bleaching ground, the evidence was that the yarn had been spread upon the ground, but was afterwards taken up and thrown into heaps in order to be carried into the house, in which state some of it was stolen by the prisoner; Thomson, B., held that the case did not come within the statute, as there was no occasion to leave the yarn upon the ground in the state in which it was taken by the prisoner. (c) So in another case upon that statute where the indictment was for stealing calico placed to be printed and dried in a certain building, it was held, that in order to support the capital charge, it was necessary to prove that the building from which the calico was stolen was made use of either for drying or printing calico. (d) But it should be observed, that this repealed statute mentioned particularly a building, &c. made use of by any calico printer, &c. for printing, whitening, bowking, bleaching, or drying. It has been decided in a case upon the 7 & 8 Geo. 4, c. 30, s. 3, that goods remain in a "stage" "process" or "progress of manufacture," though the texture be complete, if they be not yet brought into a condition fit for sale. (e) second degree and accessories are now punishable under it; if not, they would seem punishable as for a felony not specially provided for. See note (b), ante, p. 135. (c) Hugill's case, cor. Thompson, B., at York, 4 Black. Com. 240, note (8), ed. 1800. (d) Rex v. Dixon and others, Russ. & Ry. 53. (e) Rex v. Woodhead, 1 M. & Rob. 549, Coleridge, J. See this case in its proper place in chap. 52. VOL. II. CHAPTER THE TWENTY-FOURTH. Qu. offence at common law. OF LARCENY BY TENANTS AND LODGERS. It was long doubted whether, as a lodger had a special property in the goods which were let with his lodgings, the stealing of them was felony: (a) and it was at length decided by a majority of the Judges that it was not. (b) In consequence of this decision, the 3 Wm. & M. c. 9, s. 5, was passed, which, after reciting that it was a frequent practice for idle and disorderly persons to hire lodgings with an intent to have an opportunity to take away, imbezil, or purloin the goods and furniture being in such lodgings, enacted and declared that if any person or persons should take away, with an intent to steal, imbezil, or purloin, any chattel, bedding, or furniture, which by contract or agreement he or they were to use, or should be let to him or them to use, in or with such lodging, such taking, imbezzilling, or purloining, should be to all intents and purposes taken, reputed, and adjudged to be larceny and felony, and the offender should suffer as in case of felony. Several points of nicety and difficulty arose upon the construction of this statute, and upon the statement of the contract in the indictment, (c) but it was repealed by the 7 & 8 Geo. 4, c. 27, and the statute passed for consolidating and amending the laws relative to larceny has substituted a more simple enactment, and provided that the indictment shall be in the common form as for larceny. (a) Raven's alias Aston's case, Kel. 24, 81, 82. 1 Hawk. P. C. c. 43, s 2. And see as to a special property or bare use, &c., ante, p. 21. (b) Meeres's case, Show. 50. One of the judges thought it was felony, and that a lodger had a bare use of the goods, like a guest. And two of the judges only thought it no felony, because no intent was found to steal, either in the taking the lodgings, or carrying away the goods. And all the judges thought it a point deserving very good consideration. Show. 55. Mr. East remarks upon the point, that if it clearly appear that a lodger took the lodgings with intent to gain a better opportunity of rifling them, and to elude the law, there seems no reason why it should not be felony at common law. 2 East, P. C. c. 16, s. 26, p. 585. And in 6 Ev. Col. Stat. Pt. V. Cl. VII. No. 17, p. 472, note (13), a qu. is made whether it would not now be bolden that a lodger purloining furniture is guilty of larceny at common law, on the ground of the possession still continuing in the owner of the house. But it has lately been ruled that if a man hires a lodging with intent that a comrade of his may steal the furniture, the thief cannot be indicted at common law as for stealing the goods of the original owner, Rex v. Belstead, East. T. 1820, MS. Bayley, J., and Russ. & Ry. 411. (c) 2 East, P. C. 586. 6 Ev. Col. Stat. Rex v. Healey, R. & M. Tenants and houses or apartments The 7 & 8 Geo. 4, c. 29, s. 45, for the punishment of depredations 7 & 8 Geo. 4, committed by tenants and lodgers, enacts, "that if any person shall c. 29, s. 45. steal any chattel or fixture let to be used by him or her in or with lodgers stealany house or lodging, whether the contract shall have been entered ing any prointo by him or her, or by her husband, or by any person on behalf perty from of him or her, or her husband, every such offender shall be guilty of felony, and being convicted thereof, shall be liable to be punished in let to them. the same manner as in the case of simple larceny; (d) and in every such case of stealing any chattel, it shall be lawful to prefer an indictment in the common form as for larceny, and, in every such case of stealing any fixture, to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the property in the owner or person letting to hire." (d) Ante, p. 1. |