3. Stealing Cattle or other Animals.

Stealing Horses, Cattle, or Sheep.

Indictment.

The jurors for our Lady the Queen, upon their

to wit. Soath present, that A. B., on the day of in the year of our Lord - feloniously did steal, take, and lead away one gelding ["horse, mare, gelding, colt, or filly, —bull, cow, ox, heifer, or calf,—ram, ewe, sheep, or lamb"] of the goods and chattels of C. D.: 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. [In stealing cattle or sheep, the words are "did steal, take, and drive away." Ante, p. 355.

Felony; 7 & 8 G. 4, c. 29, s. 25; transportation for not more than fifteen years, nor less than ten ;-or imprisonment, with or without hard labour, for not more than three years, -the imprisonment solitary for not more than a month at a time, nor for more than three months in a year. 1 Vict. c. 90, ss. 1, 3. As to costs, see ante, p. 186; costs of apprehension, ante, p. 189.

Evidence.

To maintain this indictment the prosecutor must prove→→

1. The stealing of the gelding, as in larceny in ordinary cases. See ante, pp. 371, 369. Where upon an indictment for stealing a mare, it appeared that the prisoner went to an inn on a fair day, and desired the ostler to bring out his horse; the ostler saying that he did not know it, the prisoner went with him to the stable, and pointed to the mare in question, saying that is my horse and desiring the ostler to saddle it: the ostler did so, and the prisoner attempted to mount, but the mare being frightened at some noise, would not stand still; the prisoner then desired the ostler to lead the mare out of the yard, and the ostler did so, and just as the prisoner was about to mount her, a person who knew the mare came up, and the prisoner was secured: Garrow, B., held this to be sufficient to constitute the felony. R. v. Pitman, 2 Car. & P. 423. See ante, p. 379. But where upon an indictment for stealing two horses, it appeared that the prisoners took the horses out of the prosecutor's stables, rode them about thirty miles and then left them at an inn, saying they would be back in three hours, and desiring that the horses should be taken care of; and the prisoners were afterwards taken

on the same day about fourteen miles distant from the inn, and walking in a direction from it: the jury found that the prisoners took the horses merely for the purpose of riding them the thirty miles, and that they left them at the inn without intending to come back for them or dispose of them; and ten of the judges held this not to be larceny. R. v. Phillips et al., 2 East, P. C. 662, see ante, p. 366. But where upon an indictment for horse stealing, it appeared that the horse in question had before been stolen by one Haworth, who was about to be tried for the offence; and the prisoner, in order (as he thought) to screen Haworth from conviction, clandestinely took the horse out of the prosecutor's stable, led him to a coal pit and backed him into it, and the horse was killed: it was objected at the trial that this was not a larceny, because the thing appeared not to have been done with intention to convert the horse to the use of the taker animo furandi et lucri causâ ; but seven of the judges held it to be larceny; and six of this majority held, that to constitute larceny, it is not essential that the taking shall be lucri causá, if it be fraudulent and with intent wholly to deprive the owner of the property, it is sufficient. R. v. Cabbage, R. & Ry. 292. Where upon a trial for stealing a horse, the prosecutor stated that he had agisted the horse on the land of another at some distance, and that hearing from that person of the loss of the horse, he went to the field where the horse had been put to feed, and discovered he was gone; but neither the agister nor his servant was called as a witness: Gurney, B., held that this was not sufficient evidence of the loss of the horse, for it was consistent with all this that the prisoner might have obtained the horse honestly from the agister, and not by felony. R. v. Yend and Haines, 6 Car. & P. 176.

Where, upon an indictment for stealing a sheep, it appeared that the prisoner removed the sheep from the middle of the field where it was grazing, to the gripe of a ditch, and there killed it, and stole a part of the carcase: the judges held that this removal of the sheep for the purpose of killing it, was not such a taking and carrying away as would constitute a stealing of the sheep. R. v. Williams, Ry. & M. 107.

2. That the horse or other animal stolen, was such as is described in the indictment. Where the animal is specifically mentioned in the statute, a description of it by any other name in the indictment will be bad, even although the name used be a generic name for the animal. Upon a former statute against horse stealing, where the words were "horse, gelding, or mare," it was holden that evidence of stealing a colt, or filly, or foal, would support an indictment for stealing a horse, gelding, or mare, respectively; R. v. Welland, R. & Ry. 494; but an indictment for stealing a colt, not saying whether it was a horse or a mare, was holden by the judges

to be insufficient upon that statute. R. v. Beany, R. & Ry. 416. In analogy to these cases, evidence of stealing a foal, would support an indictment on the present statute for stealing a colt or filly; but evidence of stealing a colt or filly, would not support an indictment for stealing a horse, gelding, or mare, because "colt" and "filly" are specifically mentioned in the statute. So, an indictment for stealing a foal, without saying whether it was a colt foal or filly foal, would be bad as an indictment on the statute.

As to cattle, the words in the Act are, "bull, cow, ox, heifer, or calf;" and evidence of any one, will not support an indictment for stealing any of the others, because they are specifically mentioned. Therefore where, upon an indictment for stealing a cow, it appeared that it was only two years old and never had a calf, and it was proved to be a heifer, the judges held the variance to be fatal. R. v. Cook, 1 Leach, 105.

As to sheep, the words of the Act are "ram, ewe, sheep, or lamb." The word "sheep" is a generic term, comprehending the others: but it will not be a good description of a ram, ewe, or lamb, because those are specifically mentioned in the Act. And therefore where, upon an indictment for stealing a sheep, it appeared in evidence that it was an ewe, the judges held that the evidence did not support the indictment, as the statute mentions both ewes and sheep. R. v. Puddifoot, Ry. & M. 247. So, where upon an indictment for stealing five sheep, it appeared in evidence that they were lambs, the judges held that the evidence did not support the indictment, for the same reason. R. v. Loom et al., Ry. & M. 169. R. v. Birket, 4 Car. § P. 216, S. P. But the word "sheep" may be considered descriptive of wethers, rig sheep, R. v. Stroud,6 Car. & P. 535, and of every other description of sheep, not coming within the terms of ram, ewe, or lamb; and in practice they are usually described as "one wether sheep, and one other sheep," and the like. So, sheep is deemed a sufficient description, where the animal is of that equivocal age, as to be too old to be called a lamb, and too young to be called a ram or ewe. And therefore 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. Spence, 1 Car. & K. 699. So, where out of a flock of ewes and wethers one was stolen, but it could not be ascertained whether it was a ewe or a wether, and it was described in the indictment as a sheep, a majority of the judges held it to be sufficient. R. v. M'Cully, 2 Moody, 34.

The section of the statute on which the above indictment is

drawn, must be understood as extending only to the stealing of cattle which are alive: stealing a dead sheep, &c., is but simple larceny at common law, and the indictment should either state it to be dead, or describe it as so much mutton, &c.

Killing Cattle or Sheep, with intent to Steal the Carcase.

Indictment.

The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the day of in the year of our Lord wilfully and feloniously did kill one ewe ["horse, mare, gelding, colt, or filly,-bull, cow, ox, heifer, or calf,-ram, ewe, sheep, or lamb"] of the goods and chattels of C. D., with intent then feloniously to steal, take, and carry away the carcase [or the skin, or a certain part of the carcase, that is to say, the inward fat] of the said ewe, so killed as aforesaid: 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.

Felony; 7 & 8 G. 4, c. 29, s. 25; transportation for not more than fifteen years, nor less than ten ;-or imprisonment, with or without hard labour, for not more than three years, -the imprisonment solitary for not more than one month at a time, or three months in a year. 1 Vict. c. 90, ss. 1, 3.

Evidence.

To maintain this indictment, the prosecutor must prove

1. The killing of the sheep, &c., as stated in the indictment. Where upon an indictment for killing a lamb, with intent to steal part of the carcase, it appeared that the prisoner cut the leg off a lamb, whilst it was alive, and carried the leg away, but the lamb afterwards died of the wound: the judge at the trial being of opinion that as the death wound was given before the theft, the offence was made out, the prisoner was convicted, and the judges afterwards held the conviction to be right. R. v. Clay, R. & Ry. 387. So, where a man cut the throat of an ewe, with intent to steal the carcase, but was interrupted before he actually killed it, and it afterwards lived for two days being convicted upon this statute, the judges held the conviction to be right. R. v. Sutton, 8 Car. & P. 281.

2. That the animal killed, is such as is described in the indictment, as in the last case.

3. The intent to steal the carcase, or part of it. This can only be proved from the admissions or acts of the defendant or from evidence of other facts from which the jury may fairly infer it. If he actually stole the whole or part of the carcase, this perhaps is the best proof of his intent to steal it. Even his killing the sheep, if he were interrupted before he could take any part of it away, would of itself be evidence from which the jury might fairly presume an intent to steal it. See R. v. Sutton, supra. But if he killed the sheep, and then voluntarily left it, this would be proof, not of this offence, but of another, namely, the malicious killing, maiming, or wounding cattle, which shall be mentioned hereafter. Where a prisoner was indicted for killing three sheep with intent to steal the whole of the carcases, and it appeared that he only stole the tallow and inside fat of the three, and the fat of the backs of two of them being convicted, the judges held the evidence sufficient, as the statute meant to make it immaterial whether the intent was to steal the whole of the carcase or a part only. R. v. Williams, Ry. & M. 107.

Hunting or stealing Deer in inclosed Places.

Indictment.

The jurors for our Lady the Queen, upon their

day of

to wit. oath present, that A. B., on the in the year of our Lord situate in the parish of deer had been and then were usually kept ["in the inclosed part of any forest, chase, or purlieu, or in any inclosed land wherein deer shall be usually kept "] unlawfully, wilfully, and feloniously did course, kill, take, and carry away ["course, hunt, snare, or carry away, or kill or wound, or attempt to kill or wound"] one fallow deer, [" any deer,”] the property of the said C. D., in the said inclosed land then kept and being: 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.

in certain inclosed land of C. D.. in the county of wherein

Felony; same punishment as for simple larceny ; 7 & 8 G. 4, c. 29, s. 26; that is, imprisonment, with or without hard labour, for not more than two years, (and the imprisonment solitary for the whole or any part of the time) and if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall think fit. See ante, p. 355.

Evidence.

To maintain this indictment, the prosecutor must prove→