ever," of the goods and chattels of one C. D. feloniously did receive and have of a certain evil-disposed person (c); which said last-mentioned goods and chattels had been then lately before, there, to wit, on, &c. at, &c. feloniously stolen, taken, and carried away, he, the said A. B. then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away, against the form of the statute, &c. and against the peace, &c.

A count for a substantive felony in receiving stolen goods may be joined with a count charging principals with stealing, and the same receiver with receiving the same goods or portions of them (d). Receivers so charged may be convicted on the count for the substantive felony, though all the principals are acquitted of stealing the goods received (e).

SECTION XIII.

OF KILLING, MAIMING, OR WOUNDING CATTle.

The felony of unlawfully and maliciously killing, maiming, or wounding any cattle, was by 7 & 8 G. IV. c. 30, s. 16, subjected, at

ceiving separate parts of the mutton of the sheep so stolen and killed, in order to obviate R. v. Messingham.

66

Before 7 G. IV. c. 64, s. 9, an indictment was found against A. for burglary and stealing, and against B. for receiving. This indictment was abandoned against A., and at the same assizes, another was found against B. for receiving, which alleged the original felony as committed by a person or persons to the jurors unknown." The judges held these facts no objection to the second indictment, R. v. J. Bush, R. & Ry. 372. But in R. v. Walker, 3 Campb. 264, where the indictment laid a larceny by a 66 person unknown," and an inciting him to that offence by the prisoner, Le Blanc, J., directed an acquittal, when the principal felon, who was on the back of the bill, was called to prove his own and the receiver's guilt. See R. v. Robinson, Holt, C. N. P. 595.

If an indictment charges a receiving as a substantive felony, and names the party by whom the original larceny was committed, his confession is not admissible to prove the receiver's guilt, which must be proved aliunde, especially if the principal is alive, and could be called, R. v. Turner, 1 Moo. C. C. 347; nor comm. semb. would a conviction

of the principal, on a plea of "guilty," or "not guilty," have been evidence, for the indictment charges not his conviction, but his guilt, S. C.; but qu see 2 Stark. Ev. 2d ed. 7.

If the prisoner assisted another in stealing the goods, he may still be convicted both of stealing and receiving, being felonies; and a theft by several, is a theft by each. See R. v. Dyer, 2 East's P. C. 767; R. v. Atwell, id. 768.

Guilty knowledge may be proved by the principal felon, or inferred from proof of the small price given, 1 Hale, 619; of denial of having the goods, &c., or of other instances of receiving, R. v. Dunn, 1 Moo. C. C. 146; even though made subjects of indictment, R. v. Davis, 6 C. & P. 177.

(c) If the indictment does not here subjoin the name of the principal felon, or "to the jurors unknown," it will suffice; for the statute makes the offence consist in receiving of goods knowing them to have been stolen, and not in receiving stolen goods from any particular person, R. v. Jervis, 6 C. & P. 156, Tindal, C. J.

(d) R. v. Wheeler, 7 C. & P. 171; R. v. Hartall, id. 475; R. v. Austin, id. 796; Reg. v. Pulham and others, 9 C. & P. 280.

(e) Reg. v. Pulham and others.

the discretion of the court, to transportation for life, or for not less than seven years, or to imprisonment for any term not exceeding four years, with the additional punishment, if committed by a male, of being once, twice, or thrice, publicly or privately whipped, if the court should so think fit; but that punishment is now repealed by 7 W. IV. and I V. c. 90, s. 2, by which every person convicted, after the commencement of this act, of that offence, is liable to transportation for not exceeding fifteen nor less than ten years, or to imprisonment for not exceeding three years.

Indictment for killing, maiming, or wounding Cattle.

That A. B. late of, &c. labourer, on, &c. at, &c. one gelding (ƒ) of the price of ten pounds, of the goods and chattels of J. N. then and there being feloniously, unlawfully, and maliciously did kill, or maim, or wound (as the case may be), against the form of the statute in such case made and provided, and against the peace, &c.

SECTION XIV.

OF FELONIES RARELY PROSECUTED AT SESSIONS.

We have seen (ante p. 142), that in practice capital felonies were seldom, if ever, prosecuted at the quarter sessions. There are many other felonies of a less aggravated kind which either from their serious consequences, or the nicety of the questions likely to arise at their trials, are most usually and properly sent to the assizes by the committing magistrates in the first instance, or if indicted at the quarter sessions, are transmitted from thence to the assizes by the magistrates, who re-commit the prisoner to take his trial there, and respite the recognizances accordingly (g).

Among the felonies thus alluded to, were, larceny from the person, assaults with intent to commit robbery, sending letters containing

(f) The particular species of cattle killed, maimed, or wounded, must be specified. An allegation that the prisoner maimed "certain cattle" is not sufficient, R. v. Chalkley, R. & R. 258, though "cattle" be the only word used in the act. See the rule of criminal pleading, stated ante, p. 248. The word "cattle" is the only word used in the statute; and this word in former

statutes upon this subject, e. g., the black act, 9 G. I. c. 22, s. 1, and 4 G. IV. c. 54, s. 2 (now repealed), has been held to include horses as well as oxen, &c. R. v. Paty, 2 W. Bl. 721; pigs, R. v. Chapple, R. & R. 77, and asses, R. v. Whitney, 1 Moo. C. C. 3.

(g) See R. v. John Wetherell, R. & Ry. 381.

menacing demands of money, breaking buildings being within the curtilage, but not part of the dwelling-house, and stealing therein; breaking shops, warehouses, or counting-houses, and stealing therein; stealing goods in the process of manufacture; and stealing goods from vessels in rivers, canals, or docks, all of which offences were made punishable by 7 & 8 G. IV. c. 29, with transportation for life, or other minor infliction, at the discretion of the court before which they were tried.

During the last reign the offences of stealing horses, cattle, or sheep, &c. or killing them with intent to steal the carcass or skin, &c. as well as stealing in a dwelling-house to the value of 57., which by the acts of 7 & 8 G. IV. were punished with death, were by 2 & 3 W. IV. c. 62, subjected to transportation for life without power of mitigation by the court. Again, the breaking and entering a dwelling-house and stealing therein, to any value whatever, which by 7 & 8 G. IV. c. 29, had been visited with death, was by 4 W. IV. c. 44, punished by transportation for life, or not less than seven years, or by imprisonment for not exceeding four years, nor less than one. Lastly, the punishment of breaking into and stealing in any church or chapel (viz. of the established church) (h), as well as of stealing, destroying, or secreting letters sent by post, or their contents, which had been capital before 5 & 6 W. IV. c. 81 (i), was by that act mitigated in like manner. It is, however, by no means a prevailing opinion that quarter sessions should entertain indictments for the offences above enumerated, though they have been placed within their reach by becoming no longer capital and a clause in a bill brought before parliament in 1838, provided against such exercise of their jurisdiction. Other considerations should have place besides that of diminished risk to the prisoner in the result of conviction; for the nature of the crime remains equally serious, and its consequences as evil to society and the injured party, though visited with milder punishment of the criminal; while the nicety of questions of evidence remains the same as before.

Since the accession of her present majesty this question of tribunal will frequently recur, as the offences above enumerated, together with those to which transportation for life was attached as the extreme penalty by 7 & 8 G. IV. c. 29; 2 & 3 W. IV. c. 62; 4 W. IV. c. 44; and 5 & 6 W.IV. c. 81, are now visited with transportation for various

(h) See per Gaselee and Vaughan, Js., R. v. Warren, 6 C. & P. 335, n., on what act, qu.? 7 & 8 G. IV. c. 30, s. 2,

specifies "dissenting chapels " in terms. (i) Viz. 7 & 8 G. IV. c. 29, s. 10, and 52 G. III. c. 143.

shorter terms, or other minor punishments (j). It may still, however, be doubted, whether the courts of quarter sessions will assume jurisdiction in that great variety of cases of all kinds, to which the progressive diminution of punishments, if taken as the only test, would undoubtedly appear to invite them. The late alterations of the criminal law appear to have been made, more to mitigate the weight of its sentences, than to extend by implication the exercise of power by minor jurisdictions, to offences involving intricate proofs, or over guilt exceeding that to which with much propriety they had before confined their inquiries. If a contrary course has been sometimes prompted by an anxious fear of expense, it cannot be dignified with the title of economy, if it shuts out that opportunity for trial by the higher tribunals, which on serious charges is alike the interest of the accused, the prosecutor, and the public.

Still more unfit for trial at quarter sessions are those graver offences against the public tranquillity or revenue, or the persons, character, or property of individuals, which involve various shades of deep guilt; though the punishment of those, as well as of burglary, robbery, extortions by threatening to impute unnatural crimes, certain cases of burning, stealing in a dwelling-house, any one being therein, and put in fear, with many others, is reduced by the new acts of her present majesty from death to transportation for life, or for long terms of years; or from transportation for life to a like punishment for shorter periods (k). This observation will apply equally to the crimes of a like nature defined for the first time by those acts (e. g. hindering escape from wreck) (?), and made liable to the infliction of similar punishments.

It is remarkable, however, that while the power of quarter sessions to try those offences against the game laws, which involve the punishment of transportation for fourteen years only, was taken from them by express enactment (m), the above serious crimes have been left open to their jurisdiction in point of law by the new statutes. If, indeed, the prosecutor of any of the above offences which includes larceny, thinks fit to confine his charge to that of simple larceny at common law, he may do so with the concurrence of the magistrate, so as to try the case at the sessions. But the propriety of thus ad libitum detracting from the plain result of the facts proved, is at least equivocal, particularly in a committing magistrate, who cannot be too cau

&c.

(j) 7 W. IV. and 1 V. cc. 86, 87, 90,

(4) 7 W. IV. and 1 V. cc. 84, 85, 86,

87, 88, 89, 90, 91.

(1) 7 W. IV. and 1 V. c. 89, s. 7. (m) 9 G. IV. c. 69, s. 9, post.

tious of abandoning the broad line of his duty in individual cases. The old and sound rule was always to commit and indict for the larger of any two offences which it appeared probable that the evidence might be sufficient to establish. If this course is pursued, and at the trial the proof does not bear out the larger felony charged, for instance, rape, burglary, or house-breaking, the prisoner is in no jeopardy of undue conviction for it, and yet may be convicted of the simple larceny or of the assault (n); whereas, if originally indicted for the simple larceny, or for the misdemeanour, justice may either be defeated altogether by proof of the greater offence, or is, at all events, obscured by that artificial stopping short of proving the actual facts to their real extent, which on such an indictment would be the only mode of sustaining the charge at all.

It has seemed therefore better, in a work of this limited extent, to omit the particular consideration of provisions which will so rarely be found applicable to sessions practice, and the introduction of which in full, with appropriate forms of indictments, would extend this volume without adequate excuse. The offences of breaking into houses and buildings, and stealing therein, have, however, been introduced into the last and this edition.

For a like reason the particular consideration of malicious and felonious injuries to the person, consolidated by Lord Lansdowne's act, 9 G. IV. c. 31, and by 7 & 8 W. IV. and 1 V. cc. 85, 87 & 90, and of malicious injuries to property as consolidated by 7 & 8 G. IV. c. 30 (with the exception of injuries to cattle, &c., see p. 278), is omitted in this, as well as in the two preceding editions. Offences amounting to felony, and prompted by malice, are rarer than those instigated by the desire of acquisition; and from their nature and importance can seldom be fit subjects of inquiry at the sessions of the peace.

(n) 7 W. IV. and 1 V. c. 85, s. 11.