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garden, has been holden to be a fixture to a building, within the meaning of the former Act upon this subject. Marney's case, 1 Hawk. c. 45, s. 13. But window sashes, temporarily fixed in the window frames, merely to prevent their falling out, but not beaded or permanently fastened there, were holden not to be fixed to the building within the meaning of that Act. Hodge's case, Id. s. 7, 1 Leach, 240. So a wooden gate, with an iron spring latch and clasp, and two pieces of iron called upper eyes, which might be lifted on and off of the hooks of the gate post at pleasure, was holden not to be a fixture. Challis's case, 1 Hawk. c. 45, s. 8. In all these cases, where it is doubtful whether the thing taken was fixed or not, it is prudent to add a count for a simple larceny.

3. The intent to steal it. See ante, pp. 366, 381. This is to be inferred from the acts of the defendant. See ante, pp. 119, 120.

To maintain the second count, the prosecutor must prove

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1. The stealing of the lead, as in larceny. But if the lead were fixed when he stole it, the offender can only be indicted in that county, and not in any other county into which he may have carried the lead. R. v. Millar, 7 Car. & P. 665.

2. That it was then fixed to the dwelling-house of, or in the occupation of, C. D., in the parish, &c., as under the last count. If it be doubtful whether the lead was fixed at the time, add a count for a simple larceny, for if the lead were not fixed, within the meaning of the Act, the defendant would not be found guilty on the above indictment. R. v. Gooch, 8 Car. & P. 293.

Stealing Trees, Shrubs, or Underwood.

Indictment.

The jurors for our Lady the Queen, upon their

in the county of

day of

felo-or

to wit. oath present, that A. B., on the in the year of our Lord in a certain pleasure ground {"park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house"] of C. D., in the parish of niously did cut and root up [" if any person shall steal,— shall cut, break, root up, or otherwise destroy or damage with intent to steal"] one oak tree ["the whole or any part of any tree, sapling, or shrub, or any underwood"] the property of the said C. D., in the said pleasure ground then growing, with intent then the said tree feloniously to steal, take, and carry away, thereby then doing injury to the said

C. D. to an amount exceeding the sum of one pound: 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. (Second count.) And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., on the day and year aforesaid, in a certain pleasure ground of the said C. D., in the parish of in the county of, feloniously did steal, take, and carry away, a certain other oak tree, of the value of [one] pound, the property of the said C. D., in the said pleasure ground then growing: 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; punishable in the same manner as simple larceny; 7 & 8 G. 4, c. 29, s. 38; that is, by imprisonment, with or without hard labour, for not more than two years, (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. Ante, p. 355.

The same punishment, if the tree, &c., be growing elsewhere, and the value, or the amount of injury done, exceed the sum of five pounds. 7 & 8 G. 4, c. 29, s. 38.

Evidence.

To maintain the first count of this indictment, the prosecutor must prove—

1. That the prisoner cut or rooted up the tree mentioned in the indictment; see R. v. Hodges, infra, and that the injury thereby occasioned, exceeded in amount the sum of one pound.

2. That the tree was at the time growing in a pleasure ground of C. D., or in his occupation, as described in the indictment. See R. v. Hodges, infra. Also the parish, &c.

3. The intent to steal it. This is proved from the words or acts of the defendant, or by proof of any other facts from which the jury may fairly infer it. See ante, pp. 119, 120.

To maintain the second count, the prosecutor must prove→→ 1. A stealing of the tree, as in larceny. See ante, pp. 369, 371. It must be laid and proved to have been of the value of one pound at least; if it were of a less value the offence would be punishable on summary conviction only, unless it be a third offence, that is to say, an offence committed after two previous convictions. 7 & 8 G. 4, c. 29, s. 39. Where, upon an indictment for stealing pear trees, it appeared that they were grafted seedlings about seven feet high, and it was objected that

they must be deemed plants within the meaning of another section of the Act, and not trees, &c., within the 38th section on which this indictment is framed: but Parke, J., held that they were properly described as trees. R. v. Hodges, Moody &M. 341. Stealing plants, roots, fruits, or vegetable productions, growing in a garden, erchard, nursery ground, hot-house, green-house, or conservatory, is punishable only on summary conviction for a first offence, but is a felony, and punishable as simple larceny, if committed after a previous conviction. 7 & 8 G. 4, c. 29, s. 42.

2. That the tree was, at the time, growing in a pleasure ground of C. D., in the parish, &c. The words in the act are, "park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house." Where the tree was described as growing in ground adjoining a dwelling-house, and it appeared that the ground was separated from the house by a narrow paved entry and a paling: Parke, J., held that the evidence did not maintain the indictment; ground to be adjoining to a dwelling-house, within the meaning of the statute, must be immediately contiguous to it, without anything intervening. R. v. Hodges, supra. If the stealing, or the cutting, &c., with intent to steal, be of a tree growing elsewhere, the value, or the injury done must be laid and proved to exceed five pounds. 7 & 8 G. 4, c. 29, 8. 38.

Stealing from Mines.

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 in a certain coal mine of C. D., in the parish of, in the county of- ["mine, bed, or vein thereof"] feloniously did sever ["steal, or sever with intent to steal"] one ton weight of coal [" 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"] the property of the said C. D., in the said mine then being, with intent the said coal feloniously to steal, take, and carry away: 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. (Second count.) And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., on the day and year aforesaid, in a certain coal mine of the said C. D., in the parish of, in the county of, feloniously did steal, take, and carry away from the said mine one ton of coal, the property of the said 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.

Felony punishable in the same manner as simple larceny; 7 & 8 G. 4, c. 29, s. 37; that is, by imprisonment, with or without hard labour, for not more than two years, (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. Ante, p. 355.

Evidence.

To maintain the first count of this indictment, the prosecutor must prove

1. A severance of the coal in the mine.

2. That the mine was then the property of C. D., or in his occupation as tenant, and that it is situate in the parish, &c. See R. v. Bleasdale, infra.

3. The intent to steal. This is proved from the words or acts of the defendant, or by proof of other facts from which the jury may fairly presume it. The very act of severing the coal if the defendant had no bonâ fide claim of right to it, is sufficient presumptive evidence of an intent to steal. See ante, pp. 119, 120.

To maintain the second count, the prosecutor must prove—

1. The stealing of the coal, either by the prisoner himself, or by others by his orders. Where the lessee of a coal pit was charged, in one count, with stealing coal, the property of thirty different persons, who had mines in the vicinity of his, into which he caused his men to work and take the coal,the prisoner's counsel, at the trial, applied that the counsel for the prosecution should select some particular act done on a particular day, and confine his statement and evidence to that; but the judge (Erle, J.,) refused to interfere; the case was then gone into and proved, and the prisoner's counsel objected to the count, as charging a stealing of the coal of several persons, in different places and at different times but the judge held that the different workings might be relied on to show the felonious intent, although they extended into twenty different counties, and the coal belonged to twenty different persons, and extended over twenty years, if the mining operations were continuous for that time. R. v. Bleasdale, 2 Car. & K. 765. Here the men were innocent

agents, and the defendant was properly indicted as principal. But even if the men had a guilty knowledge of the wrong they were doing, and the defendant were in that case only accessory before the fact, yet he might be indicted as principal; for now an accessory before the fact to a felony, may be indicted, tried, convicted, and punished, in all respects as if he were a principal felon. 11 & 12 Vict. c. 46, s. 1. See ante, p. 16. Where the working miners, however, cheated each other, by one taking from the heap of another for the purpose of increasing the sum he was to receive for his labour, but the whole was rendered to the owner: the judges held it not to be larceny ; R. v. Webb, Ry. & M. 431; but now by stat. 2 & 3 Vict. c. 58, s. 10, if any person employed in a mine in the county of Cornwall, shall take, remove, or conceal any ore, with intent to defraud the proprietor or any workman, he shall be guilty of felony, and punished as for simple larceny.

2. That the mine was then the property of C. D., or in his occupation as tenant; see R. v. Bleasdale, supra; and that it is in the parish, &c.

to wit.

5. Stealing from the Person.

Robbery.

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 in and upon C. D. feloniously did make an assault, and him the said C. D. did then feloniously put in fear and danger of his life, and did then feloniously and violently steal, take, and carry away, from the person, and against the will of the said C. D., certain money of the said C. D., and one gold watch of the goods and chattels of the said 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. [If the prosecutor were robbed of bank notes, they may be described as money, as in the above form. 14 & 15 Vict. c. 100, s. 18, ante, p. 90. Where an indictment for robbery charged four persons with assaulting A. B. and C. D. and stealing two shillings from A. B. and one shilling from C. D.,—Tindal, C. J., held it to be good, the whole being one transaction. R. v. Giddins et al., Car. & M. 634.

Felony; transportation for not more than fifteen years, nor less than ten; or imprisonment (with or without hard

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