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king-intent to part with the property by prosecutor-original of prisoner cases of obtaining goods, &c., by false pretences.] d may be classed the cases, strictly speaking, of obtaining money pretences, cases in which, on account of the owner of the goods, &c., nding to part with the property in them, the offence does not amount and where the possession of the goods has been fraudulently obtained by prisoner under false pretences. The prisoners, Nicholson, Jones, and Chappell, were indicted for stealing two bank post bills, and seven guineas. The prisoner Nicholson introduced himself to the prosecutor at the apartments of the latter in the Charter-house, under pretence of inquiring what the rules of the charity were. Discovering that the prosecutor had some money, he desired to walk with him, and having been joined by the prisoner Chappell, they went to a public house. The prisoner Jones then came into the room, and said that he had come from the country to receive 14007., and produced a quantity of notes. Chappell said to him, "I suppose you think that no one has any money but you." Jones answered, "I'll lay 107. that neither of you can show 407. in two hours." They then all went out, Nicholson and Chappell said that they should go to the Spotted Horse, and they both asked the prosecutor if he could show 407. He answered, he believed he could. Nicholson accompanied the prosecutor home, when the latter took out of his desk the two bank post bills and five guineas. Nicholson advised him to take a guinea or two more, and he accordingly took two guineas more. They then went to the Spotted Horse, where Jones and Chappell were, in a back room. Jones put down a 107. note for each who could show 407. The prosecutor showed his 407. by laying down the notes and guineas, but did not recollect whether he took up the 107. given to him. Jones then wrote four letters with chalk upon the table, and going to the end of the room, turned his back and said, that he would bet them a guinea a piece that he would name another letter which should be made and a basin put over it. Another letter was made and covered with a basin. Jones guessed wrong, and the others won a guinea each. Chappell and Nicholson then said, "We may as well have some of Jones's money, for he is sure to lose, and we may as well make it more, for we are sure to win." The prosecutor then staked his two notes and the seven guineas. Jones guessed right, and the notes lying on the table, he swept them all off and went to the other end of the room, the other prisoners sitting still. A constable immediately came and apprehended the prisoners. The prosecutor, on cross-examination said, that he did not know whether the 107. note given to him by Jones on showing 407. was a real one or not. That having won the first wager, if the matter had ended there, he should have kept the guinea. That he did not object to Jones taking his 407. when he lost, and would have taken the 407. if he had won. The officers found on the prisoners many pieces of paper having numbers, such as 100, 50, &c., something in the manner of bank-notes, the bodies of the notes being advertisements of different kinds. No good notes were found upon them, but about eight guineas in cash. A lump of paper was put into the prosecutor's hands by Jones, when the officers came in, which was afterwards found to contain the two post bills. On the part of the prisoners it was contended, that this was a mere gaming transaction, or at most only a cheat, and not a felony. A doubt being entertained by the bench, on the latter point, it was left to the jury to consider whether this was a gaming transaction or a preconcerted scheme by the prisoners, or any of them, to get from the prosecutor the post bills and cash. The [*618] jury were of opinion that it was a preconcerted scheme in all of them for that purpose, and found them guilty; but the judges held the conviction wrong, for in this case the possession as well as property had been parted with by the

prosecutor, under the idea that it had been fairly won. Nicholson's case, 2 East, P. C. 669; 2 Leach, 610.

The prisoner, who had previously pawned certain articles at the shop of the prosecutor, brought a packet of diamonds, which he also offered to pawn, receiving back the former articles. The prosecutor's servant, who had authority to act in his business, after looking at the diamonds, delivered them back to the prisoner to seal up, when the prisoner substituted another parcel of false stones. He then received from the prosecutor's servant the articles previously pledged, and carried them away. Being indicted for stealing these articles, Arabin, S., before whom he was tried, thought that inasmuch as the property was parted with by the pawnbroker's servant, absolutely under the impression, that the prisoner had returned the parcel containing the diamonds, the offence did not amount to felony, and upon a case reserved, the judges resolved unanimously that the case was not larceny, because the servant who had a general authority from his master, parted with the property, and not merely with the possession. Jackson's case, 1 Moody, C. C. 119. See Longstreeths' case, Id. 137; ante, p. 607.

Proof of the things stolen things savouring of the reality-at common law.] At common law larceny could not be committed of things that savoured of or adhered to the freehold, as trees, grass, bushes, bridges, stones, the lead of a house, or the like. (1) 1 Hale, P. C. 510; 2 East, P. C. 587. But if these things be severed from the freehold, as wood cut, grass in cocks, stones dug out of a quarry, &c., then felony might be committed by stealing them, for then they are personal goods. So if a man came to steal trees, or the lead of a church, and severed it, and after about an hour's time came and fetched it away, this was held felony, because the act was not continued, but interpolated, and in that interval the property lodged in the right owner as a chattel; and so with regard to corn standing on the ground, for that is a chattel personal. 1 Hale, P. C. 510. "If," says Gibbs, C. J., "a thief severs a copper and instantly carries it away, it is no felony at common law, yet if he lets it remain after it is severed any time, then the removal constitutes a felony, if he comes back and takes it, and so of a tree which has been some time severed." Lee v. Ridson, 7 Taunt. 191.

The rule on this subject is thus stated by the criminal law commissioners: "Although a thing be part of the realty, or be any annexation to, or unsevered produce of the realty, yet if any person sever it from the realty with intent to steal it, after an interval, which so separates the acts of severance and removal, that they cannot be considered as one continued act, the thing taken is a chattel, the subject of theft, notwithstanding such previous connexion with the realty. If any parcel of the realty or any annexation to, or unsevered produce of the realty be severed, otherwise than by one who afterwards removes the same, it is the subject of theft, notwithstanding it be stolen instantly after that severance." 1st Rep. p. 11.

To remedy the inconvenience which arose from this state of the law, *it [ *619] has been made larceny in certain cases to steal things annexed to a part of the freehold. These enactments will now be stated.

Proof of things stolen-things savouring of the realty-things annexed to

(1) State v. Stephenson, 2 Bailey, 334.

Ice, put away in an ice-house for domestic use, is private property, and as such the subject of larceny. Ward v. The People, 3 Hill, 895. 6 Hill, 144.

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buildings, &c.] By the 7 and 8 Geo. 4, c. 29, s. 44, "if any person shall steal, or rip, or cut, or break, with intent to steal any glass, or wood-work, belonging to any building whatsoever, or any lead, iron, copper, brass, or other metal, or any utensil, or fixture, whether made of metal, or other material, 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, street, or other place dedicated to public use or ornament, every such offender shall be guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny, and in case of any such thing being fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person.

The Irish act, the 9th Geo. 4, c. 55, s. 27, is in the same words, with a proviso that it shall not affect the punishment under the Irish paving acts.

Upon the repealed statute 4 Geo. 2, c. 32, it was held, that a person who procured possession of a house under a written agreement between him and the landlord, with a fraudulent intention to steal the fixtures belonging to the house, &c., was, in stealing the lead affixed to the house, guilty of a felony within the statute. Munday's case, 2 Leach, 850; 2 East, P. C. 594.

With regard to what shall be deemed a building within this act, it was held (upon the 4 Geo. 2, which, after specifying certain buildings, used the words, "any other buildings whatever,") that a summer-house, half a mile from the dwelling-house, was within the act. Norris's case, Russ. & Ry. 69. So upon the same statute a majority of the judges determined that a church was within the meaning of the act. Parker's case, 2 East, P. C. 592. But it was agreed that the property in lead affixed to a church could not be laid to be either in the church-wardens, or in the parishioners or inhabitants. Id. The new statute, by omitting to specify any particular building, and using only the words "any building whatsoever," has removed the doubts which gave rise to the above decisions.

An unfinished building intended as a cartshed, which was boarded up on all its sides, and had a door with a lock to it, and the frame of a roof ready for thatching, with loose gorse thrown on it, was held by Littledale, J., to be a building within the above section. Worrall's case, 7 C. & P. 516.*

Upon the words "any square, street, or other place dedicated to public use or ornament," it has been held that a churchyard comes within the meaning of the act. Per Bosanquet, J., Blick's case, 4 C. & P. 377; see also Reece's case, 2 Russ. by Grea. 65; and a similar decision with respect to a tombstone in a churchyard, in Jones's case, 2 Russ. by Grea. 66.

The prisoner was indicted (in the usual form) for stealing lead affixed to a building. The jury found him guilty of stealing the lead when lying severed, but not of stealing it when fixed. Tindal, C. J., after conferring with Vaughan, [*620] B., held that the prisoner could not be *found guilty of a simple larceny on such an indictment, and directed a verdict of not guilty to be entered. R. v. Gooch, 8 C. & P. 293.

An indictment for stealing a copper-pipe fixed to the dwelling-house of A. and B., is not supported by proof of stealing a pipe fixed to two rooms, of which A. and B. are separate tenants, in the same house. Finch's case, 1 Moo. C. C. 418.d

* 1 Eng. C. C. 69.
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Eng. Com. Law Reps. xxxii. 608. b Id. xix. 428.
42 Eng. C. C. 418.

• Id. xxxiv. 395.

Proof of the thing stolen-stealing from mines.] The stealing, or severing with intent to steal, the ore of any metal, &c. from a mine, is made felony by the 7 and 8 Geo. 4, c. 29, s. 37, (the 9 Geo. 4, c. 55, s. 30, I.,) by which it is enacted, "that if any person shall steal, or sever with intent to steal, the ore of any metal, or any lapis calaminaris, manganese, or mundick, or any wad, black cawke, or black lead, or any coal or cannel coal, from any mine, bed, or vein thereof respectively, every such offender shall be guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny."

The following case has been decided on the subject of larceny in mines. The prisoners were indicted for stealing copper ore, the goods and chattels of A. B. and others. It appeared in evidence, that A. B. and others were the lessees and adventurers in a mine, the ores in which were excavated by several distinct parties of labourers, working under separate contracts, and at different rates of wages, which were so much in the pound on the price of the ore when sold. The ores, when excavated, were left, by the men who dug them, in various heaps in the mine, and were afterwards raised to the surface, manufactured, and sold by and at the expense of the adventurers. The prisoners, who were contractors, worked in the mine at wages of 5s. in the pound, had taken ores from a neighbouring heap which had been dug out by other contractors working at 2s. in the pound, and had placed them on their own heap, and there left them, to be raised and manufactured by the adventurers in the usual course. The prisoners having been convicted, on a point reserved, a majority of the judges were of opinion that the conviction was wrong, on the ground that there was no larceny from the adventurers, in whom the property was laid. R. v. Webb, 1 Moo. C. C. 431.o

But now by the 2 and 3 Vict. c. 58, s. 10, for the prosecution and punishment of frauds in mines by idle and dishonest workmen, removing or concealing ore for the purpose of obtaining more wages than are of right due to them, and thereby defrauding the adventurers in or proprietors of such mines, or of the honest and industrious workmen therein," it is enacted, "that if any person or persons employed in or about any mine within the county of Cornwall shall take, remove, or conceal the ore of any metal, or any lapis calaminaris, manganese, mundick, or other mineral found or being in such a mine, with intent to defraud the proprietor or proprietors of, or adventurer or adventurers in such mine, or any one or more of them respectively, or any workman or miner employed therein, then and in every such case respectively such person or persons so offending shall be deemed and taken to be guilty of felony, and being convicted thereof shall be liable to be punishable in the same manner as in the case of simple larceny."

Proof of the thing stolen, trees, &c.] The stealing of trees, &c. of greater *value than 17. growing in certain situations, is made felony by the 7 and [ *621 ] 8 Geo. 4, c. 29, s. 38, (the 9 Geo. 4, c. 55, s. 31, I.) by which it is enacted, "that if any person shall steal, or shall cut, break, root up or otherwise destroy or damage, with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house, every such offender (in case the value of the article or articles stolen, or the amount of the injury done, shall exceed the sum of one pound) shall be guilty of felony, and being convicted thereof shall be liable to be punished in the same manner as in the case of simple larceny; and if any person shall steal, or shall cut, break,

• 2 Eng. C. C. 431.

root up, or otherwise destroy or damage, with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing elsewhere than in any of the situations herein before mentioned, every such offender (in case the value of the article or articles stolen, or the amount of the injury done, shall exceed the sum of five pounds,) shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny.

Upon the words "adjoining to a dwelling-house," it has been ruled, that they import actual contact, and therefore ground separated from the dwelling-house by a narrow walk and paling, with a gate in it, has been held not to be within their meaning. Hodges' case, Moo. & Malk. N. P. C. 341. There was no count, laying the trees to be growing in ground belonging to a dwelling-house. What is to be considered a garden, within this section, is a question for the jury. Id.

The stealing of trees, &c., of inferior value, is provided against by s. 39, (s. 32 of the Irish statute,) by which it is enacted, "that if any person shall steal, or shall cut, break, root up, or otherwise destroy or damage, with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be respectively growing, the stealing of such article or articles, or the injury done, being to the amount of a shilling at the least, every such offender, being convicted before a justice of the peace, shall for the first offence, forfeit and pay, over and above the value of the article or articles stolen, or the amount of the injury done, such sum of money, not exceeding five pounds, as to the justices shall seem meet; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labour for such term, not exceeding twelve calendar months, as the convicting justice shall think fit; and if such second conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped, after the expiration of four days from the time of such conviction; and if any person so twice convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny."

The stealing of any part of any fence, post, rail, &c., and the being found in possession of any sapling, &c., or any part of any fence, &c., of the value of 28., are by ss. 40 and 41 punishable by summary conviction.

[*622] *The stealing of plants, fruits, and vegetable productions, growing in any garden, &c., is provided against by the 42d section of the same statute, (s. 35 of the 9 Geo. 4, c. 55, I.) by which it is enacted, "that if any person shall steal, or shall destroy or damage, with intent to steal, any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery-ground, hothouse, greenhouse, or conservatory, every such offender, being convicted thereof before a justice of the peace, shall, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding six calendar months, or else shall forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money, not exceeding twenty pounds, as to the justice shall seem meet; and if any person so convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny."

Eng. Com. Law Reps. xxii. 330.

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