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as to B., and he may be indicted for stealing the goods of B.

1 Hale, 507. 2 East, P. C. c. 16. § 90. p. 654. 2 Russ. 156. Nor by fraudu- And Gould J. stated it to be his opinion, that the doctrine would lently taking,

also hold where the goods are taken from the possession of the true owner by fraud, as otherwise a man might derive an advantage from his own wrong. In Wilkins's case, 0. B. 1790, 1 Leach, 522,

523. 2 Russ. 156. Case of B. A distinction is taken in the following case :

-If A. steals the stealing from

horse of B., and afterwards delivers it to C., who was no party to A., and C. tak- the first stealing, and C. rides away with it animo furandi, yet C. but not feloni. is no felon to B.; because, though the horse was stolen from B., ously.

yet it was stolen by A., and not by C., for C. did not take it; neither is he a felon to A., for he had it by delivery. i Hale, 507.

2 Russ. 156. Stealing things

By the common law larceny cannot be committed of things that savour of

which savour of the realty, and are at the time they are taken the realty.

part of the freehold; whether they be of the substance of the land, as lead, or other minerals; of the produce of the land, as trees, corn, grass, apples, or other fruits ; or things affixed to the land, as buildings, and articles, such as lead, &c. annexed to buildings. 2 East, P.C. c. 16. § 27. p. 587. 2 Russ. 136. But it is larceny to take them, being severed from the freehold, as wood cut, grass in cocks, stones digged out of the quarry; and this, whether they are severed by the owner or even by the thief himself, if he sever them at one time, and then come again at another time and take

them. Haw. c. 33. $ 21. 1 Hale, 510. Things belong- Thus, though, “ if a thief severs a copper, and instantly carries ing to the realty, it off, it is no felony at common law; if indeed he lets it remain but severed

after it is severed any time, then the removal of it becomes a from it.

felony, if he comes back and takes it; and so of a tree which has been some time severed.” Per Gibbs C. J. in Lee v. Risdon,

M. T. 57 G. 3. 7 Taunt. 191. 7&8G. 4. c. 29. By 7 & 8 G. 4. c. 29. s 37., If

any person

shall steal, or sever Stealing certain with intent to steal, the ore of any metal

, or any lapis calaminaris

, minerals.

manganese or mundick, or any wad, black cawke, or black lead, or any coal, or cannel coal, from any mine, bed, or vein thereof respectively, every such offender shall be guilty of felony, and being convicted thereof shall be liable to be punished in the same

manner as in the case of simple larceny. Stealing fix

§ 44. If any person shall steal, or rip, cut, or break, with intent tures from

to steal, any glass or woodwork belonging to any building whatbuildings or

soever, or any lead, iron, copper, brass, or other metal, or any any thing made of metal from

utensil or fixture, whether made of metal or other material, reland.

spectively fixed in or to any building whatsoever, or any thing
made of metal fixed in any land being private property,
fence to any dwelling-house, garden, or area, or in any square,
street, or other place dedicated to public use or ornament, every
such offender shall be guilty of felony, and, being convicted
thereof, shall be liable to be punished in the same manner as in the
case of simple larceny; and in case of any such thing fixed in any
square, street, or other like place, it shall not be necessary to allege

the same to be the property of any person. See R. v. Finch, post, Tenants and § 45. If any person shall steal any chattel or fixture let to be lodgers stealing used by him or her in or with any house or lodging, whether the

or for a

p. 455.

contract shall have been entered into by bim or her, or by her 78 8G. 4. c. 29. husband, or by any person on behalf of him or her, or her husband, every such offender shall be guilty of felony, and, being from the apartconvicted thereof, shall be liable to be punished in the same ments they hire. manner as in the case of simple larceny; and in every such case of stealing any chattel it shall be lawful to prefer an indictment in the common form as for larceny, and in every such case of stealing ang fixture to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the property in the owner or person letting to hire.

§ 38. If any person shall steal, or shall cut, break, root up, or Stealing trees, otherwise destroy or damage with intent to steal, the whole or any shrubs, &c. part of any tree, sapling, or shrub, or any underwood, respectively growing in

parks, gardens, growing in any park, pleasure-ground, garden, orchard or avenue, &c.; or in any ground adjoining or belonging to any dwelling-house, to the value of every such offender (in case the value of the article or articles ll.; stolen, or the amount of the injury done, shall exceed the sum of one pound) shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny; and if any person shall steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing elsewhere than in any of the situations herein- elsewhere 51., before mentioned, every such offender (in case the value of the article or articles stolen, or the amount of the injury done, shall exceed the sum of five pounds) shall be guilty of felony, and, felony. being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny. See R. v. Hodges, infra,

§ 39. If any person shall steal, or shall cut, break, root up, or Stealing trees, otherwise destroy, or damage with intent to steal, the whole or shrubs, &c. any part of any tree, sapling, or shrub, or any underwood, where growing elsesoever the same may be respectively growing, the stealing of such article or articles, or the injury done, being to the amount of a shilling at the least, every such offender, being convicted before is. value. a justice of the peace, shall for the first offence forfeit and First convicpay, over and above the value of the article or articles stolen, or the amount of the injury done, such sum of money, not exceeding five pounds, as to the justice shall seem meet; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall for such second offence be committed to the common gaol Second convicor house of correction, there to be kept to hard labour for such tion. term, not exceeding twelve calendar months, as the convicting justice shall think fit; and if such second conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped, after the expiration of four days from the time of such conviction ; and if Third offence any person so twice convicted shall afterwards commit any of the felony. said offences, such offender shall be deemed guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny.

Ø 40. If any person shall steal, or shall cut, break, or throw Stealing, &c. down with intent to steal, any part of any live or dead fence, or live or dead

fence, &c. any wooden post, pale, or rail set up, or used as a fence, or any stile or gate, or any part thereof respectively, every such offender,

where.

tion.

7&8 G.4. c. 29. being convicted before a justice of the peace, shall for the first First offence. offence forfeit and pay, over and above the value of the article

or articles so stolen, or the amount of the injury done, such sum of money, not exceeding five pounds, as to the justice shall seem

meet; and if any person so convicted shall afterwards be guilty of Second offence. any of the said offences, and shall be convicted thereof in like

manner, every such offender shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term, not exceeding twelve calendar months, as the convicting justice shall think fit; and if such subsequent conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly whipped, after the expir

ation of four days from the time of such conviction. Suspected per- $ 41. If the whole or any part of any tree, sapling, or shrub, or sons in posses- any underwood, or any part of any live or dead fence, or any post, sion of wood,

pale, rail, stile, or gate, or any part thereof, being of the value of &c.

two shillings at the least, shall, by virtue of a search warrant, to be granted as herein-after mentioned, be found in the possession of any person, or on the premises of any person, with his knowledge, and such person, being carried before a justice of the peace, shall not satisfy the justice that he came lawfully by the same, he shall

, on conviction by the justice, forfeit and pay, over and above the value of the article or articles so found, any sum not exceeding

two pounds. Stealing, &c.

§ 42. If any person shall steal, or shall destroy or damage with plant, root, intent to steal, any plant, root, fruit, or vegetable production, fruit or veget growing in any garden, orchard, nursery-ground, hothouse, green

a den, &c. house, or conservatory, every such offender, being convicted

thereof before a justice of the peace, shall, at the discretion of the justice, either be committed to the conimon gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding six calendar months, or else shall forfeit or pay, over and above the value of the article or articles so stolen, or the amount of the injury done,

such sum of money, not exceeding twenty pounds, as to the Second offence justice shall seem meet; and if any person so convicted shall felony. afterwards commit any of the said offences, such offender shall be

deemed guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple

larceny. See R. v. Hodges, infra. Stealing, &c. $ 43. If any person shall steal, or destroy or damage with vegetable grow- intent to steal, any cultivated root or plant used for the food of ing elsewhere.

man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land, open or enclosed, not being a garden, orchard, or nursery-ground, every such offender, being convicted before a justice of the peace, shall, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only

, · or to be imprisoned and kept to hard labour, for any term not exceeding one calendar month, or else shall forfeit and pay over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money, not exceeding twenty shillings, as to the justice shall seem meet, and in default of payment thereof, together with the costs (if ordered), shall be committed as aforesaid, for any term not exceeding one calendar

month, unless payment be sooner made; and if any person so 7 & 86.4.c.28 convicted shall afterwards be guilty of any of the said offences, Second offence. and shall be convicted thereof in like manner, every such offender shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term, not exceeding six calendar months, as the convicting justice shall think fit; and if such subsequent conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped, after expiration of four days from the time of such conviction.

Prisoner was indicted on 7 & 8 G.4. c. 29. $ 38., for stealing Ground is not pear trees, stating in one count, that they were growing in a gar- adjoining to a den, and in another that they were growing in ground adjoining if there is any to a dwelling-house. It appeared that the ground was separated interval: whe. from the back of the house by a paved entry or walk of about a ther it be a gar. yard in width; and it was ruled by Parke J. that the statute must den or nursery be construed strictly, and that not being absolutely contiguous, it is a question could not be considered adjoining to the house. Another question

for the jury. having arisen whether the ground was a garden or only a nursery, 7& 8 G. 4.

Plants, &c. in it was held to be a question for the jury, and the prisoner was ac- c. 29. $ 42. do quitted.

not apply to The trees taken were grafted seedlings about seven feet high, young fruit and Parke J. held they came within the description of tree de- trees in a nur. scribed in 38., and that $ 42. did not apply to them. Hereford sery on sale. Sept. Ass., 1829, R. v. Hodges, 1 M. & M. 341.

The prisoner was tried and convicted at Norwich for stealing Where part of six feet of copper pipe, which the indictment stated to be the a house is occu. property of John Symonds, and to be fixed to the dwelling-house pied by A. and of Elizabeth Drummee and Sarah Allen ; and a second count

part by B., it stated it to be the property of E. D. and S. A., and fixed to their described as dwelling-house. It appeared that the dwelling-house was the pro- the dwelling perty of John Symonds, in the same yard with, and adjoining to, house of A. his own house ; and it consisted of two rooms, one on the ground and B. floor, the other up one pair of stairs ; one of these was occupied by E. D. and the other by S. A., as separate tenants to J. S., and the pipe which was stolen, ran longitudinally down these two rooms to carry off the water from the roof. The question was, whether the dwelling-house was properly described ; and on case reserved, the judges were of opinion that the conviction was wrong, there being neither a joint possession nor a joint property of the dwelling-house. M. T. 1834, R. v. Francis Finch, Ms.

With regard to domestic animals, such as horses, oxen, sheep, Domestic and the like, there is no doubt whatever that they were the animals, subjects of larceny at common law. And the stealing of many of horses, cattle ; these animals has been made a capital offence, by the provisions of see the respecseveral statutes, which have been or will be treated of under their respective titles. Domestic birds also, as ducks, hens, geese, turkeys, peacocks, &c. are clearly the subjects of larceny. So also larceny may be committed of their eggs or young ones. 2 Russ. 150. 1 Hale, 511. I Haw. c. 33. § 43.

And as the stealing of such animals is larceny, it is also larceny Produce of to steal the produce of them, though taken from the living animals. animals. Upon this ground it was holden by all the judges, on a case reserved for their opinion, that milking a cow at pasture and stealing Milk, the milk, was larceny; and it was also holden, that larceny may

cannot be

naturæ

Wool.

be committed by pulling wool from the bodies of live sheep and lambs with a felonious intent. 2 East, P.C. c. 16. § 49. p.616,

617. 2 Russ. 150. Deer, hares, In regard to hunting, carrying away, killing, &c. deer, or taking &c. ; fish.

or killing hares and conies in warren, &c., see tit. Game. As to

taking or destroying fish, see tit. ffish. Killing, &c. The stat. 7 & 8 G. 4. c. 22. $ 33., enacts, “ that if any person house pigeons. shall unlawfully and wilfully kill, wound, or take any house dove

or pigeon, under such circumstances as shall not amount to larceny at common law, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay, over and above

the value of the bird, any sum not exceeding two pounds." Animals fere It is however certain, that larceny cannot at common law be com

mitted of such animals in which there is no property, as of beasts At common that are fere nature and unreclaimed; such as deers, bares, and law.

conies in a forest, chase, or warren ; fish in an open river or pood; old pigeons out of the house; or wild fowls at their natural liberty;

although any person may have an exclusive right ratione loci cut Dead, reclaim- privilegii to take them if he can in those places. But if they are ed, or confined. dead, reclaimed, and known to be so, or confined and may serve

for food, it is otherwise even at common law. For of deer so enclosed in a park, which may be taken at pleasure; fish in a trunk or net, or as it should seem in any other enclosed place which is private property, and where they may be taken at the pleasure of

the owner at any time; pheasants or partridges in a mew; young Vide 3 Inst. 97, pigeons, or old ones when shut up; young hawks in a nest, and 98, 99. i Hale, even old ones, or falcons reclaimed and known by the party to be

80; larceny may be committed. The same as to peacocks: so of swans marked and pinioned, or swans unmarked, 'if tame, kept in a mote, pond, or private river; but if they range out of the royalty,

it is no felony to take them though marked, because it cannot be Hawks, swans;

known that they belong to any person. Nor can larceny be committed of the eggs of these, or of hawks; because the stat. 11 H.7. c. 17. has appointed a less punishment, namely, fine and imprisonment. 2 East, P. C. 607. 3 Inst. 109, 110. 4 Blac. Com. 235, 236. 1 Hale, 510, 511. 1 Haw. c. 33. $ $ 25 — 28. Hal

. Bees. Sum. 67, 68. Davies v. Powell

, Will. Rep. 49. But the stealing of a stock of bees seems to be admitted to be felony. Tibbs F.

Smith, T. Ray. 33. Indictment for John Rough being convicted on an indictment for stealing a stealing an pheasant, value 40s., of the goods and chattels of H. S., all the

judges, on a second conference in Easter term 1779, after much nature, must

debate and difference of opinion, agreed that the conviction was dead, reclaimed,

for in cases of larceny of animals feræ naturæ, the indict&c.

ment must shew that they were either dead, tame, or confined; otherwise they must be presumed to be in their original state ; and that it is not sufficient to add of the goods and chattels of such a one. Rough's case, Surrey Lent. Ass. 1779, 2 East,

P. C. 607. Stealing phea- Thomas Jones was indicted for stealing five pheasants restrained sants from an of their natural liberty, the property of A. Fountain. It appeared unqualified

on the evidence that Fountain was an alehouse-keeper, and not a person.

qualified person to keep or to shoot game; and that he bred these pheasants for sale. And it was objected on behalf of the prisoner

, that F., not being a qualified person, could have no property

642.

their eggs.

animal feræ

state it to be

bad;

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