statute had included ships, as ours does, we should have had similar adjudications as to the naming the owners of ships. Neither the English nor our statutes prescribe that the owners of dwelling-houses shall be named in the indictment; yet the courts have always held it to be essential. Suppose the statute had made it an aggravated larceny to steal from a stage coach, or steamboat, &c. must it not appear to be the coach or boat of some other person than the felon himself, and be so averred? The place from which the article is stolen, whether a house or ship, is an essential ingredient in the description of the aggravated offence; and in order to make it such, it must be expressly alleged in terms that shall not be equivocal, or leave room for uncertainty. If there is no allegation of the name of the owner of the house or ship, it ought at least to be averred not to be the house or ship of the felon himself. Besides the uncertainty arising from a want of the owner's name, there are many vessels of the same name and belonging to the same port. There are many of the very name in this case, the Chatham. Nor is the supposed difficulty of obtaining the names of ship owners a sufficient reason for the omission in these cases; the same reason would exist in the case of dwelling-houses; but the custom-house registry, or the prosecutor himself, would furnish the names, as in other cases. And it might possibly be sufficient to aver that the ship was owned by some other person than the party charged, if it was impossible to obtain the true name; it should certainly appear, by some express averment, that the ship did not belong to the felon himself. If it were sufficient to allege the name of the vessel, without the name of the owner, as contended, then she ought, at least, to be identified by adding the name of the port to which she belongs; according to the intent of the United States law of Dec. 1792 § 3, requiring the port as well as the name of the vessel to be put on her stern.

2. On the second point, it is to be observed, that the statute, proceeding on the principles above stated, evidently intends to provide merely for the case of a stranger entering a house or ship (with or without breaking) and committing a larceny in it; it was not intended to comprehend the case of an offender who should enter, either as having a right, or as being obliged by his office, to enter the house or ship. The defendant and the seamen were obliged to be in the vessel; they cannot, therefore, be said to break into the ship, nor, as suggested by

the counsel for the government, to break out of her, as in cases of house-breaking which occur in the books.

3. The terms, lying within the body of a county,' are essential to the indictment. They are a part of the statute description of the offence; the statute contemplates, that the ship shall be one which is in use and employed as such on the navigable waters of the commonwealth; and the term 'lying' is intended to indicate this. For aught that appears in the indictment, the larceny might have been committed in a vessel on the stocks, or that had been wrecked on our shores, and no longer in use for the purposes of a ship; the present averments would be equally true, if such had been the fact here; yet no court would think of extending the language of the statute to cases of that kind. It is also necessary, that the averment should explicitly show the offence to be excluded from the admiralty jurisdiction and within that of the courts of common law. A dwelling-house, from its very nature, must always be within the body of some county; but a ship may or may not be, according to circumstances. The words of the indictment 'there being,' do not supply the place of there lying,' as is contended by the government; there being' may be truly applied to the ship, while she is on the stocks or on shore, as before supposed; but they are not equivalent to the words 'there lying' as used in the statutes; these words imply, not merely that the ship is within the body of the county, but that she is there under particular circumstances, which circumstances are a material part of the description of the aggravated offence.

THACHER J. The prisoner having upon his trial been convicted of the crime charged in the indictment, sentence must be rendered upon the verdict, unless the reasons assigned by his counsel shall be found sufficient to arrest the judgment.

1. The first reason assigned in the defendant's motion is, 'because the indictment charges and alleges the taking, stealing, and carrying away the money therein mentioned, as an aggravated larceny, viz. from a certain ship or vessel called the Chatham, without alleging or naming the owner of said vessel.'

2. Because it appeared at the trial, that the said Hickman at the time of the alleged taking, was second officer of said vessel, and an inmate and part of the said vessel's company; and said vessel and her cargo and stores were in the

custody and under the control of said Hickman: and that the said Hickman could not within the meaning and intention of the statute, be guilty of stealing from said vessel as is therein prohibited.'

3. Because the indictment alleges the property taken to be the property of two persons in different counts, to wit, in the first, it is alleged as the property of Phelps ;-in the second count, as the property of Gray ;-and the verdict is general, one taking and but one sum of fifty dollars having been proved, the verdict is void for uncertainty, and inconsistent with the testimony.'

The second cause assigned, not being for matter apparent on the record, would be proper under a motion for a new trial, provided it was founded in fact, and it were competent for this court, from whose judgment an appeal is allowed, to sustain such a motion. The defendant was the second officer of the vessel, but it was not shown, at the trial, that the money had been entrusted to him by the owner, or that it was in his custody or control. It was confided to the captain, was in his possession, and deposited at the time by him in his chest, in the cabin. The defendant had his appropriate duties to perform on board the vessel, but it was no part of his employment to take the charge of this money.

The questions raised by the first and third causes assigned, relate to the sufficiency of the indictment. And as an adherence to established forms in legal proceedings is both favorable to accuracy, and for the safety of the accused, it is the duty of learned and faithful counsel to present their objection to the court, whenever they have ground to believe, that it appears from the record, that there is a departure from technical propriety.

The first count in the indictment charges, that the defendant, on the 23d of April, A. D. 1830, at Boston, in the county of Suffolk, with force and arms, pieces of silver coined money amounting together to the sum of fifty dollars, and of the value of fifty dollars, of the money, goods and chattels of one Royal Phelps, Jr. in his possession, in a certain vessel called the schooner Chatham there being, feloniously in said vessel, did then and there steal, take, and carry away, against the peace of said Commonwealth, and the forms of the statute in such case made and provided.

The second count charges, that the defendant, at said Bos

ton, on the 23d day of April last past, with force and arms, pieces of silver coined money, amounting together to the sum of fifty dollars, and of the value of fifty dollars, of the money, goods and chattels of one Asaph Gray, in said vessel called the schooner Chatham, in his possession then and there being, did then and there, in said vessel, feloniously steal, take, and carry away, against the peace of said Commonwealth, and the form of the statute in such case made and provided.

This indictment is founded on the sixth section of the act of 1804, c. 143. If any person shall in the day time commit any larceny, in any ship or vessel as aforesaid, he shall be punished,' &c.

The words as aforesaid,' are to be understood, as is urged by the counsel for the defendant, by a reference to the fourth section of the act, where it is declared, 'that if any person, in the night time, shall break and enter any ship or vessel, lying within the body of a county, and shall there commit a larceny, every such offender shall suffer,' &c.

The words, lying within the body of the county of Suffolk,' are considered by the counsel for the defendant, as essential to the description of the offence, and not being contained in either count, they insist that the indictment is, for this cause, defective. These words are so far material, that if upon inspection of the indictment it should not appear to be therein alleged, that the schooner Chatham was lying at the time within the body of this county, it would be a fatal defect; because it would not then appear, that the offence was committed within the jurisdiction of this court. But these words do not go to the description of the offence, nor are they of that artificial and technical character, that they cannot be supplied by other equivalent expression; as felonice in felony, burglariter in burglary, and murdravit in murder. Where a particular intention, either at common law, or by the enactment of a statute, is essential to an offence, that intention must be expressly and plainly averred.' Stark. on Crim. Plead. 196; 6 East, 464, The King v. Phillips. If the statute in this case had said, 'in any ship or vessel lying upon navigable water,' or in a navigable river,' such descriptive words making part of the offence, and having a sensible meaning, ought to be contained in the indictment. But the words in the fourth section mean no more, than that the offence must be committed within the body of a county, and they might have been

there omitted without prejudice; for if an indictment upon the statute should not show, that the offence was done within the jurisdiction of the court, it would be a fatal defect; because the court could not, in such case, sustain the jurisdiction. Now it appears to me, that in both counts of this indictment it is clearly contained, that the money was taken in a vessel in Boston, and within the county of Suffolk. To restrain the application of the words, 'there being,' to the taking of the money, and not to allow them to extend to the vessel also, in which the money was taken, would, in my judgment, be against good sense as well as against the rules of grammar.

It appeared at the trial, that the larceny was committed in a vessel lying in the channel in Boston harbor. But if it had appeared, that the vessel was, at the time, unfinished, lying upon the stocks, and never having been received into her destined element; or, if the vessel had been wrecked, and was lying on shore at the time of the larceny,—the question might well arise, whether it was an aggravated larceny within this clause of the statute.

The counsel for the defendant very properly abandoned, in their argument, the third cause assigned in the motion for arresting the judgment. It appeared at the trial, that both counts were founded in truth as to the ownership of the money. It belonged to Royal Phelps, Jr. who sent it by Capt. Gray to persons in this city for a special use. The possession of the money by Gray for this purpose, vested a special property in him. Where property is stolen out of the possession of a bailee, it may be described in the indictment as the property of the bailor or of the bailee. 2 Hale P. C. 181. And although it is not correct to charge a defendant with different felonies in different counts; yet the same felony may be charged in different ways in different counts, in order to meet the facts of the case; as, for instance, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was committed, be the house of A or B, they may be stated in one count as the goods or house of A, and in another as the goods or house of B. The King v. John Egginton, 2 B. & P. 508. Archbold's Summary of the Law, &c. 30.

If there is any ground in this case for arresting the judgment, in whole or in part, it must be found in the first cause assigned in the motion. It presents a new question, and deserves consideration. The counsel for the prisoner insist, that