PLANTS ETC., NOT IN GARDENS.

342. Every one who steals any cultivated root or plant used for the food of 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 inclosed, not being a garden, orchard, pleasure ground, or nursery ground, is guilty of an offence and liable, on summary conviction, to a penalty not exceeding five dollars over and above the value of the article so stolen or the amount of the injury done, or to one months' imprisonment with hard labour.

2. Every one who, having been convicted of any such offence, afterwards commits any such offence is liable to three months' imprisonment with hard labour. R. S. C. c. 164, s. 24. 24-25 V. c. 96, s. 37 (Imp.).

Injuring roots, etc., s. 510, post.

Clover has been held to be a cultivated plant: R. v. Brumby, 3 C. & K. 315; but it was doubted whether grass were so Morris v. Wise, 2 F. & F. 51.

STEALING ORE, MINERALS, ETC.

343. Every one is guilty of an indictable offence and liable to two years' imprisonment who steals the ore of any metal, or any quartz, lapis calaminaris, manganese, or mundic, or any piece of gold, silver or other metal, or any wad, black cawk, or black lead, or any coal, or cannel coal, or any marble, stone or other mineral, from any mine, bed or vein thereof respectively.

2. It is not an offence to take, for the purposes of exploration or scientific investigation, any specimen or specimens of any ore or mineral from any piece of ground uninclosed and not occupied or worked as a mine, quarry or digging. R. S. C. c. 164, s. 25. 24-25 V. c. 96, s. 38 (Imp.).

Fine, s. 958.

See ss. 571, 621 & 707, which apply to this section.

Sections 312 and 354 provide for the concealing of gold and silver from a mine, or of anything that can be stolen.

The words "or any marble, stone, or other mineral" are not in the English Act.

R. v. Webb, 1 Moo. 431; R. v. Holloway, 1 Den. 370; R. v. Poole, Dears. & B. 345, would now fall under s. 354, post. It must be alleged and proved that the ore was stolen from the mine: R. v. Trevenner, 2 M. & Rob. 476. twenty pounds' weight of copper ore, the property of J. N., from a certain mine of copper ore of the said J. N., situate unlawfully did steal.

Indictment.

STEALING FROM THE PERSON.

344. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who steals any chattel, money or valuable security from the person of another. R. S. C. c. 164, s. 32. 24-25 V. c. 96, s. 40 (Imp.). "Valuable security" defined, s. 3; and see remarks under s. 353, post.

Indictment for stealing from the person.

one.

watch, one pocket-book and one pocket handkerchief of the goods and chattels of J. N., from the person of the said J. N., unlawfully did steal.

The words "from the person of the said J. N." constitute the characteristic of this offence, as distinguished from simple larceny; the absence of force, violence or fear distinguishes it from robbery.

The indictment need not negative the force or fear necessary to constitute robbery; and though it should appear upon the evidence that there was such force or fear, the punishment for stealing from the person may be inflicted: R. v. Robinson, R. & R. 321; R. v. Pearce, R. & R. 174.

To constitute a stealing from the person the thing taken must be completely removed from the person. Where it appeared that the prosecutor's pocket-book was in the inside front pocket of his coat, and the prosecutor felt a hand between his coat and waistcoat attempting to get the book out, and the prosecutor thrust his right hand down to his book, and on doing so brushed the prisoner's hand; the book was just lifted out of the pocket an inch above the top of the pocket, but returned immediately into the pocket; it was held by a 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. Of ten judges, four were of opinion that the stealing from the person was complete: R. v. Thompson, 1 Moo. 78.

Where the prosecutor carried his watch in his waistcoat pocket, fastened to a chain, which was passed through a button-hole of the waistcoat, and kept there by a watch-key at the other end of the chain; and the defendant took the watch out of the pocket, and forcibly drew the chain and key out of the button-hole, but the point of the key caught upon another button, and the defendant's hand being seized the watch remained there suspended, this was held a sufficient severance. The watch was no doubt temporarily, though but for a moment, in the possession of the prisoner: R. v. Simpson, Dears. 421. In this case Jervis, C.J., said he thought the minority of the judges in Thompson's case, supra, were right.

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: R. v. Hamilton, 8 C. & P. 49.

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 s. 711.

In R. v. Collins, L. & C. 471, it was held that there can only be an attempt to commit an act, where there is such a beginning as if uninterrupted would end in the completion of the act, and that if a person puts his hand into a pocket with intent to steal, he cannot be found guilty of an attempt to steal, if there was nothing in the pocket. But that case is overruled: see s. 64. p. 42, ante, and cases cited.

STEALING IN A DWELLING-HOUSE.

345. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who

(a) steals in any dwelling-house any chattel, money or valuable security to the value in the whole of twenty-five dollars or more; or,

(b) steals any chattel, money or valuable security in any dwelling-house, and by any menace or threat puts any one therein in bodily fear. R. S. C. c. 164, ss. 45 & 46. 24-25 V. c. 96, ss. 60, 61 (Imp.).

As to the meaning of the words "valuable security": see ante, s. 3, and remarks under s. 353, post.

Indictment under (a).

one silver sugar basin, of the value of twenty-five dollars, of the goods and chattels of A. B., in the dwelling-house of the said A. B., situate unlawfully did steal.

If no larceny is proved the defendant must of course be acquitted altogether, except if the jury should find him guilty of the attempt to commit the offence charged, under s. 711, but the jury could not find him guilty of an attempt to commit a simple larceny: R. v. McPherson, Dears. & B. 197; but see now s. 713.

The word "dwelling-house" has the same meaning as in burglary. If the proof fails to prove the larceny to have been committed in a dwelling-house or in the dwellinghouse described, or that the value of the things stolen at any one time amounts to twenty-five dollars, the defendant must be acquitted of the compound offence, and may be found guilty of the simple larceny only.

The goods must be stolen to the amount of twenty-five dollars or more at one and the same time: R. v. Petrie, 1 Leach, 294; R. v. Hamilton, 1 Leach, 348; 2 Russ. 85.

It has been held in several cases that, if a man steal the goods of another in his own house, R. v. Thompson, R. v. Gould, 1 Leach, 338, it is not within the statute, but these cases appear to be overruled by R. v. Bowden, 2 Moo. 285. Bowden was charged with having stolen Seagall's goods in his, Bowden's house, and having been found guilty the conviction was affirmed. Where a lodger invited an acquaintance to sleep at his lodgings, without the knowledge of his landlord, and, during the night, stole his watch from his bed's head, it was doubted at the trial whether the lodger was not to be considered as the owner of the house with respect to the prosecutor; but the judges held that the defendant was properly convicted of stealing in the dwellinghouse of the landlord; the goods were under the protection

CRIM. LAW-25

of the dwelling-house: R. v. Taylor, R. & R. 418. If the goods be under the protection of the person of the prosecutor, at the time they are stolen, the case will not be within the statute; as, for instance, where the defendant procured money to be delivered to him for a particular purpose and then ran away with it: R. v. Campbell, 2 Leach, 564; and so, where the prosecutor, by the trick of ring-dropping, was induced to lay down his money upon the table, and the defendant took it up and carried it away: R. v. Owen, 2 Leach, 572. For a case to be within the statute the goods must be under the protection of the house. But property left at a house for a person supposed to reside there will be under the protection of the house, within the statute. Two boxes belonging to A., who resided at 38 Rupert street, were delivered by a porter, whether by mistake or design did not appear, at No. 33 in the same street; the owner of the house imagining that they were for the defendant who lodged there delivered them to him; the defendant converted the contents of the boxes to his own use, and absconded; it was doubted at the trial whether the goods were sufficiently within the protection of the dwellinghouse to bring the case within the statute, but the judges held that they were: R. v. Carroll, 1 Moo. 89. If one on going to bed put his clothes and money by the bedside these are under the protection of the dwelling-house and not of the person; and the question whether goods are under the protection of the dwelling-house, or in the personal care of the owner, is a question for the court, and not for the jury: R. v. Thomas, Carr. Supp. 3rd Ed. 295. So where a man went to bed with a prostitute, having put his watch in his hat on a table, and the woman stole the watch while he was asleep; this was held to be a stealing in a dwellinghouse, and not a stealing from the person: R. v. Hamilton, 8 C. & P. 49. But if money be stolen from under the pillow of a person sleeping in a dwelling-house this is not stealing in the dwelling-house within the meaning of the Act: 2 Russ. 84. In ascertaining the value of the articles