was no intention, in the removal, to drive away or steal the living sheep; but the intent of the removal was to commit another offence, of which he might be capitally convicted. In all the cases where a slight removal had been held larceny, there was evidence given of an actual removal, and how it was done; but here there was no evidence of the removal of the sheep in a live state, and the removal after their death would not support a count for stealing sheep, which must be intended to be live sheep. (Edwards's case, Russ. & Ry. 497.) The doctrine in Rawlins's case, supra, not being satisfactory to the mind of the learned judge, he reserved the case for the opinion of the judges, who were of opinion that the second count was supported, and not the first, a removal whilst alive being essential to constitute larceny; and nine of the judges held that the offence of intending to steal a part, was part of the offence of intending to steal the whole, and that the statute meant to make it immaterial whether the intent applied to the whole, or only to part. Williams's case, 1 Moo. C. C. 107.°

With regard to the description of the animal stolen, &c., many of the cases have already been stated. See ante, p. 103.

A rig sheep, or wether, is properly described as a sheep. Per Alderson, B., Stroud's case, 6 C. & P. 535.

Where on an indictment for stealing a sheep, it appeared, that the animal was under a year old; Bolland, B. held, that the prisoner must be acquitted, as he ought to have been indicted for stealing a lamb. Birket's case, 4 C. & P. 416;° and see Loom's case, ante, p. 103. These decisions do not appear to be affected by the ruling in M'Cully's case, 2 Lewin, C. C. 272; 2 Moo. C. C. 34. ante, p. 103. But in a very recent case where the prisoner was indicted under the 7 & 8 Geo. 4, c. 29, s. 25, for stealing a sheep, and the jury found that it was a lamb; a majority of the judges present, on a case* reserved (six to five,) held the [*374] conviction to be right. R. v. Spicer, 1 Dennison, C. C. 82; 1 C. & K. 699.ƒ It has been held that an indictment for stealing a filly is not supported by evidence of stealing an animal more than three years old, as at three years of age it ceases to be a filly and becomes a mare. Edward Jones's case, 2 Russ. by Grea. 140.

The phrase "bullock stealing," in the 7 Geo. 4 c. 64, s. 28, (see ante, p. 249,) empowering the court, in certain cases, to order rewards to persons active in the apprehension of offenders, was held by Law, Recorder, to include all cases of cattle-stealing of that particular class or description, as ox, cow, heifer, &c. Gillbrass's case, 7 C. & P. 444.8

The 7 & 8 Geo. 4, c. 29, s. 25, applies only to the stealing of live cattle; and where dead animals are stolen it is but a common larceny, and the punishment is different. See post, title, Larceny.

Killing cattle, with intent to steal, &c.] Upon an indictment under the 7 & 8 Geo. 4, c. 29, s. 25, for killing cattle with intent to steal the carcass or skin, or any part of the cattle so killed, the prosecutor must prove the killing and the intent. Upon an indictment for killing a sheep, with intent to steal the whole carcass, it is sufficient to prove a killing with intent to steal a part only. R. v. Williams, 1 Moody, C. C. 107, ante, p. 373. Where the prisoner was indicted for killing a lamb, with intent to steal part of the carcass, and it appeared that the prisoner cut off the legs of the animal while living, and carried it away before it died, the judge thought that as the death wound was given before the theft, the offence 1 Eng. C. C. 497. • 2 Id. 107. Eng. C. L. Reps. xxv. 529. Id. xix. 351. f Id. xlvii. 699. Id. xxxii. 578. h2 Eng. C. C. 107.

d

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was made out, and the prisoner being convicted on a case reserved, the judges were unanimously of opinion that the conviction was right. Clay's case, Russ. & Ry. 387.i

On the trial of an indictment for killing a ewe with intent to steal the carcass, it appeared that the prisoner wounded the ewe by cutting her throat, and was then interrupted by the prosecutor, and that the ewe died two days after. The jury found that the prisoner intended to steal the carcass and convicted him. The judges held the conviction right. Sutton's case, 8 C. &. P. 291; 2 Moo. C. C. 29.

Maiming, &c. of cattle.] At common law, the maiming of cattle was not an indictable offence. The prisoner was charged, for that he, on, &c., with force and arms, one gelding, of the value, &c., then and there unlawfully did maim, to the damage of the prosecutor; but, upon a reference to the judges after conviction, they all held that the indictment contained no indictable offence; for, if the case were not within the Black Act, the fact in itself was only a trespass; for the words vi et armis did not imply force sufficient to support the indictment. Ranger's case, 2 East, P. C. 1074.

This class of offences was provided against by the Black Act, 9 Geo. 1, c. 22; but that statute was repealed, and in substance re-enacted, by the 4 Geo. 4, c. 54; which was also repealed by the 7 and 8 Geo. 4, c. 27.

By the 7 and 8 Geo. 4, c. 30, s. 16, "if any person shall unlawfully and maliciously kill, maim, or wound any cattle, every such offender shall be guilty [*375] of felony, and being convicted thereof, shall be liable, *at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and if a male to be once, twice, or thrice publicly or privately whipped (if the court shall think fit) in addition to such imprisonment.'

By the 7 Wm. 4 and 1 Vict. c. 90, s. 2, however, so much of the above act as relates to the punishment of persons convicted of the offences therein specified is repealed, and it is enacted that "every person convicted after the commencement of such act, of any of such offences respectively, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, and not less than ten years, or to be imprisoned for any term not exceeding three years."

For s. 3 of the above act, authorizing the court in awarding imprisonment, to add hard labour and solitary confinement, see ante, p. 372.

The Irish statute, the 9 Geo. 4, c. 86, s. 17, enacts, that if any person shall unlawfully and maliciously kill, maim, or wound any cattle, every such offender shall be guilty of felony and suffer death as a felon. The 5 and 6 Vict. c. 28, s. 13, (I.) recites the above section, and enacts, "that if any person shall be convicted of the said offence herein before last specified, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but 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." As to such imprisonment being with or without hard labour, or solitary confinement, see sec. 19 of the latter statute, ante, p. 262.

The evidence upon a prosecution under the 7 and 8 Geo. 4, c. 30, s. 16, will be— 1, that the animal killed or maimed comes within the description of cattle specified in the statute; and 2, the act of killing or maiming by the prisoner.

Proof of the animal being within the statute.] Upon the repealed statute of 9 Geo. 1, c. 22, which only contained the general word "cattle," it was held, that an indictment for killing a "mare" was good. Paty's case, 1 Leach, 72; 2 W. Bl. 721; 2 East, P. C. 1074. And see R. v. Tivey, post, p. 376. And so an indictment for wounding a "gelding." Mott's case, 1 Leach, 73, (n.) Pigs were held to be within the 9 Geo. 1, c. 22. Chapple's case, Russ. & Ry. 77. asses. Whitney's case, 1 Moody, C. C. 3.1

So also

It is not sufficient in the indictment to charge the prisoner with maiming, &c. "cattle" generally, without specifying the description, and such description must be proved; and where the sex is stated, the animal must be proved to be of that sex. Chalkley's case, Russ. & Ry. 258.TM

Proof of the injury.] Upon an indictment for malicicusly wounding, it need not appear either that the animal was killed, or that the wound inflicted a permanent injury. Upon an indictment for this offence, it was proved that the prisoner had maliciously driven a nail into a horse's foot. The horse was thereby rendered useless to the owner, and continued so to the time of trial; but the prosecutor *stated that it was likely to be perfectly sound again in a short time. [*376]. The prisoner being convicted, the judges, on a case reserved, held the conviction right, being of opinion that the word "wounding" did not imply a permanent injury. Haywood's case, Russ. & Ry. 16;" 2 East, P. C. 1076. But by maiming is to be understood a permanent injury. Id. 2 Fast, P. C. 1077; Jeans's case, 1 C. & K. 539.°

Where the prisoner was indicted under the 4 Geo. 4, c. 54, for wounding a sheep, and it appeared that he had set a dog at the animal, and that the dog, by biting it, inflicted several severe wounds, Park, J., is stated to have said, "This is not an offence at common law, and is only made so by a statute, and I am of opinion that injuring a sheep, by setting a dog to worry it, is not a maiming or wounding within the meaning of that statute." Hughes's case, 2 C. & P. 420.P As to the construction of the word "wound" see Wood's case, 1 Moody, C. C. 278; Wetton's case, Id. 294. Where the prisoner poured a quantity of nitrous acid into the ear of a mare, some of which, getting into the eye, produced immediate blindness, being convicted of maliciously maiming the mare, the conviction was held by the judges to be right. Owen's case, 1 Moody, C. C. 205.

The administering poison to cattle, however malicious the act may be, is not a felony within the statute, unless the animal die; but the party may be indicted as for a misdemeanor. Where a man was thus indicted, for administering sulphuric acid to eight horses, with intent feloniously to kill them, and it appeared that he had mixed sulphuric acid with the corn, and having done so gave each horse his feed; Park, J., held that this evidence supported the allegation in the indictment, of a joint administering to all the horses. Mogg's case, 4 C. & P. 364.*

Where the prisoner set fire to a cowhouse, and a cow in it was burnt to death, Taunton, J., ruled that this was a killing of the cow within the 7 and 8 Geo. 4, c. 30, s. 16. Haughton's case, 5 C. & P. 559."

Proof of malice and intent.] Under the repealed statute of 9 Geo. 1, c. 22, it was necessary to show that the act was done out of malice to the owner; but the 7 & 8 Geo. 4, c. 30, s. 25, (see post, title, Malicious Injuries,) renders it an offence, Eng. C. L. Reps. xlvii. 539.

r Id. 294.

Eng. C. C. 77. 1 2 Id. 3. m 1 Id. 258. " Id. 16. O
P Id. xii. 200. 92 Eng. C. C. 278.
Eng. Com. L. Reps. xix. 420.

• Id. 205.

" Id. xxiv. 454.

whether the act be done from malice conceived against the owner or otherwise. See 2 Russ. by Grea. p. 572, (n.)

On an indictment, under the 7 and 8 Geo. 4, c. 30, s. 16, for maliciously wounding a mare, where no malice was shown towards any one, and it did not appear that the prisoner knew to whom the mare belonged, or had any knowledge of the prosecutor, it was contended that since the 7 Wm. 4 and 1 Vict. c. 90, s. 2, ante, p. 375, no punishment could be enforced under the 7 and 8 Geo. 4, c. 30, s. 16, and, consequently, that the 25th section of that act had no operation, and, therefore, that proof of malice was necessary. Patteson, J., held that it was not, and the prisoner being convicted, the judges were of opinion that the conviction was right. R. v. Tivey, 1 Denison, C. C. 63; 1 C. & K. 704, S. C.

[ *377] *Although it is thus rendered unnecessary to give evidence of malice against any particular person, yet an evil intent in the prisoner must appear.

Thus, in Mogg's case, ante, p. 376, Park, J., left it to the jury to say whether the prisoner had administered the sulphuric acid, (there being some evidence of a practice of that kind by grooms) with the intent imputed in the indictment, or whether he had done it under the impression that it would improve the appearance of his horses; and that in the latter case they ought to acquit him. In the same case the learned judge allowed evidence to be given of other acts of administering to show the intent.

What amounts to.] It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to provoke another to send such a challenge, or to fight, as by dispersing letters to that purpose, containing reflections, and insinuating a desire to fight. Hawk. P. C. b. 1, c. 63, s. 3. Thus, a letter containing these words, "You have behaved to me like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make," was held indictable. Phillips's case, 6 East, 464; Rice's case, 3 East, 581.

No provocation, however great, is a justification on the part of the defendant. Rice's case, 3 East, 581; although it may weigh with the court in awarding the punishment.

On an indictment for challenging, or provoking to challenge, the prosecutor must prove-1st, the letter or words conveying the challenge; and 2d, where it does not appear from the writing or words themselves, he must prove the intent of the party to challenge, or to provoke to a challenge.

Proof of the intent.] In general the intent of the party will appear from the writing or words themselves; but where that is not the case, as where the words are Eng. Com. Law Reps. xlvii. 704.

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ambiguous, the prosecutor must show the circumstances under which they were uttered, for the purpose of proving the unlawful intent of the speaker. Thus, words of provocation, as "liar," or "knave," though a mediate provocation to a breach of the peace, do not tend to it immediately, like a challenge to fight, or a threatening to beat another. King's case, 4 Inst. 181. Yet these, or any other words, would be indictable if proved to have been spoken with an intent to urge the party to send a challenge. 1 Russ. by Grea. 298.(1)

Venue.] Where a letter, challenging to fight, is put into the post-office in one county, and delivered to the party in another, the venue may be laid in the former county. If the letter is never delivered, the defendant's offence is the same. Williams's case, 2 Campb. 506.

*CHEATING.

Proof of the nature of the cheating or fraud-affecting the public
What cheats are not indictable

[ *379 ]

379

380

Under this head, the evidence required to support an indictment for a cheat or fraud at common law will be considered. The proofs regarding prosecutions for false pretences, are treated of in a subsequent part of this work.

In order to support an indictment at common law for cheating, the prosecutor must prove-1st, that the cheat was of a public nature; 2d, the mode in which the cheating was effected; thus, if it was by a false token, the nature of such false token must be stated in the indictment, and proved in evidence; 3d, that the object of the defendant in defrauding the prosecutor was successful.

The punishment of this offence is, as in cases of other misdemeanors at common law, fine and imprisonment.

Proof of the nature of the cheating or fraud-affecting the public.] Frauds affecting the crown, and the public at large, are indictable, though they may arise

(1) A challenge to fight a duel out of the state is indictable, for its tendency is to produce a breach of the peace. State v. Farrier, 1 Hawks, 487. State v. Taylor, 1 Const. Rep. 107. The declarations of the second are admissible against the principal. State v. Dupont, 2 M'Cord, 334.

It is a question for the jury whether the party intended a challenge or not. Gibbon's case, 1 Southard, 40. Commonwealth v. Levy, 3 Wheeler's C. C. 245. Wood's case, 3 Rogers's Rec. 133. Parol testimony is admissible in explanation of the note. Commonwealth v. Hart, 6 J. J. Mash. 120. Expressing a readiness to accept a challenge does not amount to one. Commonwealth v. Tibbs, 1 Dana, 524.

Words insinuating a desire to fight with deadly weapons, as they tend to provoke such a combat, may amount to a misdemeanor at common law. Id. 524.

Threats of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put the person threatened in fear of their execution, and if they have that effect, and are calculated to produce that effect upon a person of ordinary firmness, constitute a breach of the public peace, which is punishable by indictment. State v. Benedict, 11 Verm. 236.