immediately into the pocket; it was held by majority of the judges, that the prisoner was not rightly convicted of stealing from the person, because from first to last the book remained about the person of the prosecutor; but the judges all agreed that the simple larceny was complete.(ƒ)

Although to constitute the offence there must be a removal of the property from the person, yet a hair's breadth will do (g) Upon an indictment for stealing a watch from the person it appeared that the watch was carried by the prosecutor in his waistcoat-pocket, and the chain, which was attached to the watch at one end, was at the other end passed through a button-hole of his waistcoat, where it was kept by the watch-key turned so as to prevent the chain slipping through. The prisoner took the watch out of the prosecutor's pocket, and forcibly drew the chain out of the button-hole; but his hand was seized by the prosecutor's wife; and it then appeared that, although the chain and watch-key had been drawn out of the button-hole, the point of the key had caught upon another button and was thereby suspended. It was contended that the prisoner was guilty of an attempt only; but the Court thought that, as the chain had been removed from the button-hole, the felony was complete, notwithstanding a subsequent detention by its contact with the button; and, upon a case reserved, it was held that the conviction was right. This case was in no respect like Rex v. Wilkinson; (h) for in that case there was at no moment the slightest severance from the person; but this was precisely similar to Lapier's case.(i) The ear in that case is like the button-hole in this, and the curl is like the button below. The watch was no doubt temporarily, though but for a moment, in the possession of the prisoner.(j)

We have seen that where a man went to bed with a prostitute, leaving his watch in his hat, on the table, and the woman stole it whilst he was asleep, it was held not to be stealing from the person, but stealing in the dwelling-house.(k)

Upon the trial of any indictment for stealing from the person, if no asportation be proved, the jury may convict the prisoner of an attempt to commit that offence, under the 14 & 15 Vict. c. 100, s. 9, and thereupon he may be punished in the same manner as if he had been convicted on an indictment for such attempt.(7)

*360]

*CHAPTER THE TWELFTH.

OF STEALING HORSES, COWS, SHEEP, ETC.

WE have already seen that larceny may be committed of such domestic creatures as are fit for food; and it remains only to notice in this place the statutable provision, which, for the better protection of some of the more valuable domestic animals, makes persons, found guilty of stealing them, liable to transportation.

By the 24 & 25 Vict. c. 96, s. 10, " whosoever shall steal any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement." (a)

(f) Rex v. Thompson, R. & M. C. C. 78.

(g) Per Alderson, B., in Reg. v. Simpson, infra. (h) Ante, p. 156.

(i) Ante, p. 104.

(j) Reg. v. Simpson, Dears. C. C. 421. Jervis, C. J., said he thought the minority of the judges in Thompson's case, supra, were right; but the majority might have thought that the outer coat which covered the pocket formed a protection to the pocket-book.

(k) Rex v. Hamilton, 8 C. & P. 49 (34 E. C. L. R.), ante, p. 84, and see other cases there. (1) See ante, vol. 1, p. 1.

(a) This clause is taken from 7 & 8 Geo. c. 29, s. 23; 9 Geo. 4, c. 55, s. 25 (I.); 2 & 3 Will. 4, c. 62, s. 1, &c. As to hard labor, &c., see ante, p. 67; as to offences at sea, see sec. 115, ante, p. 331.

Sec. 11. "Whosoever shall wilfully kill any animal, with intent to steal the carcase, skin, or any part of the animal so killed, shall be guilty of felony, and being convicted thereof shall be liable to the same punishment as if he had been convicted of feloniously stealing the same, provided the offence of stealing the animal so killed would have amounted to felony."(b)

By sec. 98, (c) principals in the second degree and accessories before the fact are punishable like principals in the first degree, and accessories after the fact (except receivers), are liable to be imprisoned for any term not exceeding two years.(d)

The various points upon the definition of larceny, which have been considered in the chapter treating generally of that offence, (e) relate as well to the stealing of horses as of other property; and we may remember a case where, upon a finding by the jury that the prisoners took some horses, merely with intent to ride, and afterwards to leave them, and not to return, or make any further use of them, it was holden that such taking amounted to a trespass only, and not to larceny.(ƒ) *The doctrine that any the least removal of the thing feloniously taken, [*361 will constitute larceny, (g) applies to the stealing of sheep, though part of the animal only be taken. The prisoner was indicted for stealing six lambs, without any count for killing with intent to steal the carcase or any part thereof, the evidence was that the carcases of the lambs, without their skins, were found upon the premises where they had been kept, and that the prisoner had sold the skins on the morning after the offence was committed; upon which the jury were directed to find the prisoner guilty, on the ground that the lambs must have been removed from the fold. But a doubt having occurred whether, as the 14 Geo. 2, c. 6, (now repealed) specified feloniously driving away, and feloniously killing with intent to steal the whole or any part of the carcase, as well as feloniously stealing in general (although there must, in such cases, be some removal of the thing), it did not intend to make these different offences; the case was submitted to the consideration of the judges; who held the conviction right; as any removal of the thing feloniously taken constitutes larceny.(h)

But this decision has been questioned, if not overruled, in the following case, where it was held that upon a count for stealing a sheep it must be shown that the sheep was removed whilst it was alive, and that upon a count for killing a sheep with intent to steal the whole of the carcase, evidence of killing with intent to steal part of the carcase, is sufficient. The first count charged the prisoner with stealing three sheep, and the second with killing the sheep with intent to steal the whole of the carcases. It appeared that the sheep were found killed and cut open, and the inside and entrails taken out, and the tallow and inside fat taken away, and the fat cut off the backs of two of them, and also taken away, but the fat on the back of the third was left The carcases of the sheep were left, and were found lying in the gripe of the hedge, in the same field where the live sheep had been; the entrails and guts, which remained after the tallow and inside fat had been cut out were also left, and were found in the adjoining field. There was evidence to satisfy the jury that the prisoner had killed the sheep and stolen the fat; but as the carcases of the sheep, and the entrails and guts, after cutting away the tallow and fat, were left, the learned judge thought the second count, which was for killing the sheep with intent to steal the whole of the carcases, could not be supported, and that the intent ought to have been stated to steal part of the carcases; inasmuch as the 14 Geo. 2, c. 26, specifies both intents, i. e., stealing the whole of the

(b) This clause is framed from the 7 & 8 Geo. 3, c. 29, s. 25, and 9 Geo. 4, c. 55, s. 25 (1.) so far as it relates to the animals mentioned in the preceding section: but it is extended to the killing of any other animal with the like intent, provided the stealing of such animal would be felony. This clause, therefore, will include the killing of asses, pigs, &c., with intent to steal, &c.; as to hard labor, &c., see ante, p. 67; as to offences at sea, see sec. 115, ante, p. 331.

(e) Ante, p. 67.

(d) As to the proceedings against accessories, see vol. 1, p. 67, et seq. The act does extend to Scotland.

(e) Ante, p 152, et seq.

(9) Ante, p. 152.

(f) Rex v. Phillips, ante, p. 159.

(A) Rawlin's case, 2 East P. C. c. 16, s. 48, p. 617.

carcases, or any part of the carcases; and the cutting out the inside fat is one of the offences stated in the recital of the clause in the statute (i) The count for stealing, the learned judge also, in the absence of any case to the contrary, was disposed to think was not supported; for the statute having taking away clergy from such as steal sheep, and having, in the same clause, made it *a capital *362] offence to kill sheep with intent to steal any part of the carcase, the driving away or stealing, mentioned in the statute, does not appear to be such a removal of the sheep as is made merely for the purpose of killing on the spot, but it must be such a removal as is made for the purpose of actually getting the sheep in a live state into a man's complete dominion; for if it were otherwise, the clause in the Act of Parliament about killing would have been quite unnecessary. In the cases in which a slight removal of the article has been held to amount to larceny, there has always been an intent to steal the article itself, but the thief has been prevented from getting the complete dominion over it. But here there was no intention in the removal to steal the living sheep; but the intent in the removal was to commit another offence of which he might be capitally convicted, and there would be no failure of public justice, if persons were not held to be guilty of stealing the live animal, because if the indictment was properly prepared they might still be convicted of a capital offence. In all the cases where a slight removal has 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.(j) As there was very sufficient evidence of the killing with intent to steal the fat, the learned judge directed the jury to find the pri soner guilty, but desired them to say, whether they were of opinion that he killed the sheep with intent to steal the whole, or part of the carcases; and the jury found him guilty, and that he killed the sheep with intent to steal part of the carcases only. But the question of removal under the first count was not put to the jury to find particularly. As the doctrine in Rawlins' case, (k) as applicable to sheep killed with the intent mentioned in the Act of Parliament, was not satisfactory to his mind, the learned judge reserved the points upon both counts of the indictment for the consideration 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.(?)

*It was decided upon the 14 Geo. 2, c. 6, that cutting off part of a sheep *363] whilst it was alive with intent to steal such part would support an indictment for killing with intent to steal, if the cutting off must occasion the death of the animal, especially if the offender hid the part cut off, and meant to fetch it away at a future time. The indictment was for killing a lamb with intent to steal

(i) Vide Rex v. M'Dermot, R. & R. 356; Rex v. Duffin, R. & R. 365, and Rex v. Horwell, R. & M. C. C. R. 405, that if a statute uses words in the alternative, so as to distinguish between them, the distinction must be attended to in the indictment.

(j) Rex v. Edwards, R. & R. 497.

(k) Supra, note (h),

(1) Rex v. Williams, R. & M. C. C. R. 107. In Reg. v. Marley, Monmouth Spring Ass. 1842, Cresswell, J., held, on the authority of this case, that proof of stealing part of the carcase supported an indictment for killing with intent to steal the whole carcase: MSS. C. S. G. Upon an indictment for stealing a lamb, it should seem that it mus the proved that the lamb was alive when it was stolen, in order to warrant the statutory punishment; for although it has been held that upon an indictment for receiving a lamb, it is no variance if the proof is that the lamb was dead when it was received: Rex r. Puckering, R. & M. C. C. R. 242; yet that decision proceeded on the special ground that the punishment was the same whether the lamb was alive or dead when it was received; but in the case of stealing a live lamb the punishment may be fourteen years' penal servitude, &c., while it can only be three for stealing a dead lamb. But, as stealing a lamb is felony at common law, it should seem that if it appeared on such an indictment that the lamb was dead, the prisoner might be convicted and punished for the common law felony. See the observation of Patteson, J., in Reg. v. M'Culley, post, note (z), p. 365, and Rex v. Beaney, R. & R. 416. And it should seem that that punishment would be under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and 1 Vict. c. 90, s. 5; ante, vol. 1, p. 3. C. S. G.

part of the carcase; and it appeared that the prisoner cut off a leg from the animal whilst it was alive, and carried it away before the animal died; but that the cutting necessarily caused the death of the animal. Bayley, J., thought the giving the death wound before the larceny sufficient, and that the animal might be considered as killed by relation from that time, or if not, that the intention to fetch away the leg was an intent to continue the larceny thereof; but he saved the point for the opinion of the judges, who were unanimous, principally upon the first point, that the conviction was right. (m)

Upon an indictment for killing a sheep with intent to steal the carcase, it appeared that the prisoner was interrupted by the prosecutor while in the act of killing the sheep, which was wounded in the throat, the jugular vein being cut on one side, but not altogether through. The wound was sewn up, but the sheep died in two days. The jury having found that the prisoner gave the sheep a deadly wound, of which it died, with intent to steal the carcase, were directed to find the prisoner guilty; and, upon a case reserved, the judges were unanimously of opinion that the prisoner was rightly convicted.(n)

Where the prisoner was indicted for stealing a cow, it appeared upon the evidence that the animal stolen was a female beast only two years and a half old that had never had a calf; and that a female beast of the cow kind, how old soever, if she have never had a calf, is always called a heifer. An objection was therefore taken that the charge in the indictment was not supported by the evidence; and, upon a case reserved, the judges were of opinion, that as the 15 Geo. 2, c. 34 (now repealed), mentioned both heifer and cow, it must be considered as using one term in contradistinction to the other, in describing the several animals intended to be protected; and that as the beast stolen was not such as was described in the indietment, the prisoner was entitled to an acquittal.(0)

So where the prisoners were indicted under the same repealed statute for stealing five sheep, and upon the evidence they appeared to be lambs, and the prisoners were found guilty; the judges, upon a case reserved, held the conviction wrong (p) So where the prisoner was indicted for stealing a sheep, and it appeared that the animal stolen was a ewe, and the prisoner was found guilty; the judges, upon a case reserved, held the conviction wrong; inasmuch as the statute specifies both ewe and sheep, and therefore the one really meant should be stated. (q) So where the [*364 *prisoner was indicted for stealing one sheep, and it appeared that the animal stolen was under a year old, and the prosecutor said he should call it a lamb teg; Bolland, B., said, "Upon this evidence I must direct an acquittal. In this indictment the animal in question ought to have been called a lamb. Animals of this kind are lambs, and not sheep till they are a year old. There was a case(r) lately before the twelve judges, in which a man had been indicted at the Old Bailey, and tried before Mr. J. J. Parke for stealing "one sheep," and it appearing at the trial that the animal was a ewe, the twelve judges held, that the prisoner could not be convicted, as the statute used the words "ram, ewe, sheep, &c., and that if the animal was in fact a ewe, the indictment must so describe it; and it was not enough to use the general term sheep. If a ewe is stolen, it must be called a ewe in the indictment; and so a lamb must be called a lamb; but a wether should be described as a sheep."(8)

Where on an indictment for stealing a sheep it was doubtful on the evidence whether the animal stolen was a rig sheep or a wether; Alderson, B., held that it was quite immaterial whether the sheep was a rig or a wether, as the prisoner was equally liable to be convicted on this indictment whether it was one or the other.(t)

The prisoner was indicted for stealing a ewe, and it was proved that it was rather

(m) Rex v. Clay, MS. Bayley, J., and R. & R. 387.

(n) Reg. v. Sutton, 2 Moo. C. C. R. 29; 8 C. & P. 291 (34 E. C. L. R.).

(0) Cook's case, 1 Leach 105; 2 East P C. c. 16, s. 48, p. 616.

(p) Rex v. Loom, R. & M. C. C. R. 160. (2) Rex v. Puadifoot, R. & M. C. C. R. 247. (r) Probably Rex v. Puddifoot.

(s) Rex v. Birket, 4 C. & P. 216 (19 E. C. L. R.). (1) Rex v. Stroud, 6 C. & P. 535 (25 E. C. L. R.).

more than twelve months old, and that up to twelve months it would be called a lamb, and that it would not be called ewe till it had had a lamb, and that it was called a ewe-teg; it was urged that "ewe" was a generic term for all female sheep; Pollock, C. B., said the Court could not have any judicial knowledge of what the sheep should be called from its lamb state to that of a ewe, and could only be guided by the evidence, and held the misdescription fatal.(u)

The prisoner was indicted for stealing a sheep. The animal stolen was between nine and twelve months old, and there was evidence both ways as to whether it was a sheep or a lamb; and the jury found that, in common parlance, according to the usual mode of describing such animals in the country, it would be called a lamb; and, upon a case reserved, six judges held the conviction right, but five were of the contrary opinion.(v)

And where the prisoner was indicted for stealing a horse, and it appeared that the horse was half-cut, or, according to the provincial term, that it was a ridgel;" it was objected that it ought to have been described as a gelding; but Erle, J., held that a "horse" was a generic term, and includes a gelding, and that wherever there is a well-known generic term or name for property, it may be described by that name in an indictment, and that this case could not be distinguished from the preceding case. (w) But it had been previously 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 (x)

*But it has been recently held, that an indictment for killing a sheep is

*365] supported by proof of killing a ewe or wether, although it cannot be proved

which it was. On an indictment for killing a sheep with intent to steal the carcase, the prosecutor and his man swore that he had forty-one sheep, ewes and wethers, but neither of them could tell how many of each. One was missed, but they could not tell the sex, and no person by inspection of the skin and mutton could tell the sex. It was contended that the word "gheep" in the statute meant "wether," and that it lay on the prosecutor to prove that the sheep was a wether (y) That as a proof of stealing a ewe would not support an indictment for stealing a sheep, so proof of stealing a ram would not support such an indictment; the only proof, therefore, which would support an indictment for stealing a sheep, would be stealing a wether. It was replied that the word "sheep" would include either sex, until it was proved either to be a ewe or ram; and that the distinctive appellations of ewe and wether are not used until the animals are three years old, and that this animal was much younger; but the jury found that the distinctive appellation is used at any time after weaning, and found the prisoner guilty.(z) And upon a case reserved on the question whether it was incumbent upon the prosecutor upon this indictment to prove that the sheep stolen was a wether, the judges all held that the word sheep

(u) Reg. v. Jewett, 2 Cox C. C. 227.
(v) Reg. v. Spicer, 1 Den. C. C. 82.
(w) Reg. v. Aldridge, 4 Cox C. C. 143.

This case was not argued.

(x) Reg. v. Edward Jones, Stafford Sum. Ass. 1839, Williams, J.

(y) Rex v. Puddifoot, supra, and Rex v. Chalkley, R. & R. 258, were cited and relied

upon.

(2) Patteson, J., also pointed out that the first Act which made sheep-stealing a capital offence, viz., 14 Geo. 2, c. 6, enacted, that if any person shall feloniously steal one or more sheep or other cattle, or shall wilfully kill one or more sheep or other cattle with a felonious intent, &c., he shall suffer death, &c. In the subsequent year an Act was passed, 15 Geo. 2, c. 34, which recited the clause in the former Act, and that it was doubtful to what kind of cattle besides sheep the said Act was meant to extend, and enacts, "that the said Act was meant and intended, and shall be construed, deemed and taken to extend to any bull, cow, ox, steer, bullock, heifer, calf, or lamb, as well as sheep, and to no other cattle whatsoever " No doubt seems to have arisen at any time that the word "sheep," in the Act 14 Geo. 2, c. 6, extended to sheep of all sexes, rams, ewes, and wethers; but that Act, and 15 Geo. 2, c. 34, are expressly repealed by 7 & 8 Geo. 4, c. 27, which received the royal assent on the 21st of June, 1827; and, on the same day, the 7 & 8 Geo. 4, c. 29, received the royal assent, sec. 25 of which, containing the words "ram, ewe, sheep, or lamb," gives rise to the present question It may be observed that in Puddifoot's case, if the indictment was for stealing a sheep it might have been possible to treat it as one at common law, but in this case it cannot be so treated, as it contains but one count, which is for killing with intent to steal the carcase.