the same in any examination or deposition before any commissioners of bankrupt." Sec. 24, post. writings re estate. XXIII. And be it enacted, That if any person Stealing of shall steal any paper or parchment, written or lating to real printed, or partly written and partly printed, being evidence of the title or of any part of the title to any real estate: every such offender shall be deemed guilty of a misdemeanor; and, being Punishment. convicted thereof, shall be liable to any of the punishments which the Court may award, as hereinbefore last mentioned; (16) and in any indict- Indictment. ment for such offence, it shall be sufficient to allege the thing stolen to be evidence of the title, or of part of the title, of the person or of some one of the persons having a present interest, whether legal or equitable, in the real estate to which the same relates, and to mention such real estate, or some part thereof; and it shall not be necessary to allege the thing stolen to be of any value. sions as to writings not the party ag his remedy XXIV. Provided always, and be it enacted, These provi That nothing in this act contained relating to wills and either of the misdemeanors aforesaid, nor any to deprive proceeding, conviction, or judgment to be had or grieved of taken thereupon, shall prevent, lessen, or impeach by action, &c. any remedy at law or in equity which any party aggrieved by any such offence might or would have had if this act had not been passed; but nevertheless the conviction of any such offender shall not be received in evidence in any action at (16) In sect. 21, ante, p. 342. Proviso. law or suit in equity against him. And no person shall be liable to be convicted of either of the misdemeanors aforesaid, by any evidence whatever, in respect of any act done by him, if he shall, at any time previously to his being indicted for such offence, have disclosed such act on oath, in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which shall have been bond fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioners of bankrupt. Indictment for stealing writings relating to real estate. —, in BERKSHIRE, to wit: The jurors for our lord the king upon their oath present, that A. B., late of the parish of the county aforesaid, labourer, on the third day of November, in the fifth year of the reign of our sovereign lord William the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, with force and arms, at the parish aforesaid in the county aforesaid, a certain written parchment, the property of one C. D., then and there being found, unlawfully did steal, take, and carry away; the said written parchment being then and there evidence of [part of] the title of the said C.D. to certain real estate called in which real estate the said C. D. then and there had and still hath a present interest: against the form of the statute in such case made and provided, and against the peace of our lord the king, his crown and dignity. Vide s. 23, supra. Add another count, specifying the instrument stolen more particularly, as thus: a certain other written parchment, containing a deed of release between A. E. of the one part, and the said C. D. of the other, the property of the said C. D. then and there being found, unlawfully did steal, take, and carry away; the said deed of release being then and there evidence, &c. as in the first count, to the end. Evidence. To maintain this indictment, the prosecutor must prove:— 1. A larceny of the written parchment, as in ordinary cases. See ante, p. 270. 2. That it was evidence of [part of] C. D.'s title to the real estate mentioned in the indictment. This may be done by putting the written instrument itself in evidence, if forthcoming, or by giving secondary evidence of the contents of it; and by showing how the prosecutor claims the estate: so as to shew that the written instrument is part of the evidence of his title. 3. That C. D. had, at the time of the larceny, a "present" interest in the real estate, of his title to which the written instrument in question is evidence. The statute says, a "present interest," which I suppose was intended to mean possession or perception of rents or profits, or the immediate right thereto, either in the prosecutor or his trustee, in contradistinction to an estate in remainder, &c. No person, however, shall be liable to be convicted of this offence, if, at any time previously to his being indicted for it, he shall" have disclosed such act on oath, in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which shall have been boná fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioners of bankrupt." Sec. 24, supra. horses, cows, XXV. And be it enacted, That if any person Stealing shall steal any horse, mare, gelding, colt or filly, and sheep. or any bull, cow, ox, heifer or calf, or any ram, ewe, sheep or lamb; or shall wilfully kill any of such cattle, with intent to steal the carcase or skin or any part of the cattle so killed every such offender shall be guilty of felony, and, being Death. convicted thereof, shall suffer death as a felon.(17) (17) This section, as far as respects the punishment of death, is repealed by stat. 2 & 3 Will. 4. c. 62. s. 1; and persons now convicted of any of the felonies above specified, shall be transported for life, Id., and are liable, if the court think fit, to be imprisoned, with or without hard labour, for any term not exceeding four years nor less than one, previously to their being transported. 3 & 4 Will. 4. c. 44. s. 3. post. in 1. Indictment for stealing horses, cattle, or sheep. BERKSHIRE, to wit: The jurors for our lord the king upon their oath present, that A. B. late of the parish of the county aforesaid, labourer, on the third day of November, in the fifth year of the reign of our sovereign lord William the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, with force and arms, at the parish aforesaid in the county aforesaid, one gelding ["horse, mare, gelding, colt or filly, bull, cow, ox, heifer or calf, ram, ewe, sheep, or lamb"] of the price of six pounds, of the goods and chattels of one J. D., then and there being found, feloniously did steal, take, and lead away, against the peace of our lord the king, his crown and dignity. C. C. C. 234. If the indictment be for stealing a cow or sheep, &c. instead of "lead away," say "drive away." Evidence. To maintain this indictment, the prosecutor must prove a larceny of the gelding, in the ordinary way, as directed ante, p. 270. See Stock's case, ante, p. 278; and John Williams's case, post, p. 352. The value is immaterial; although some price, it should seem, must be mentioned in the indictment. See R. v. Peel, R. & R. 407. Where, upon an indictment for horse-stealing, it appeared that the prisoner went to an inn on a fair day, and desired the ostler to bring out his horse; the ostler saying he did not know it, the prisoner went with him to the stables, pointed to the horse in question, saying "that is my horse; saddle him ;" the ostler did so, and the prisoner attempted to mount him, but the horse being frightened at some noise, would not stand still; the prisoner then desired the ostler to lead the horse out of the yard that he might mount him, the ostler did so, but before the prisoner could mount, a person who knew the horse came up, and the prisoner was secured: Garrow, B., held this sufficient to constitute the felony. R. v. Pitman, 2 Car. & P. 423. Upon the trial of an indictment for horse-stealing, the prosecutor stated that he had agisted the horse on the land of another at some distance, and that hearing from that person of the loss of the horse, he went to the field where the horse had been put to feed, and discovered he was gone; neither the agister nor his servant was called as a witness: Gurney, B., held that this was not sufficient evidence of the loss of the horse, for non constat that the prisoner might have obtained possession of the horse honestly. R. v. Yend and Haines, 6 Car. & P. 176. Upon the repealed statute, 2 & 3 Ed. 6. which mentions merely "horse, gelding, or mare,' it has been holden that evidence of stealing a filly would support an indictment for stealing a mare; and that foals and fillies were included in the words "horse, gelding, or mare." R. v. William Welland, R. & R. 494. So, in the present case, foals may be deemed to be included in the words "colt or filly;" but colts or fillies cannot perhaps be considered as included in the words " horse, mare, or gelding," because "colt" and filly" are specifically mentioned in the statute. So, an indictment for stealing a colt, not saying whether it was a horse or mare, was holden by the judges to be insufficient as an indictment upon the above repealed statute. R. v. Henry Beany, R. & R. 416. But in the present statute, colts and fillies are specifically mentioned; and the word "colt" must be understood as meaning a young horse or gelding, in contradistinction to "filly," which means a young mare. Upon an indictment for stealing five sheep, it appeared in evidence that they were lambs: the judges held that the evidence did not support the indictment. R. v. Joseph Loom, Josiah Crisp, and John Baxter, R. & M. 160; S. P. R. v. Birket, 4 Car. & P. 216. So, upon an indictment for stealing a sheep, it appeared in evidence that it was an ewe, the judges held that the evidence did not support the indictment, as the statute mentions both ewes and sheep. R. v. Puddifoot, R. & M. 247. This section extends only to the stealing of cattle which are alive at the time; stealing a dead cow or sheep, &c. is but a common larceny; and therefore if the larceny be of a dead sheep, the indictment should either state it to be dead, or describe it as so much mutton. Where an indictment charged a prisoner with receiving a lamb, knowing it to have been stolen, and it appeared that the lamb had been killed before he received it, the judge doubted whether it ought not to have been described as a dead lamb; but the matter being submitted to the judges, they held that the description was sufficient, it being immaterial in that case whether the lamb were alive or dead, the offence and the punishment being alike in both cases. R. v. Puckering, R. & M. 242. But as to stealing a dead sheep or a live one, the offences are different, and the punishments also. 2. Indictment for killing cattle or sheep, with intent to steal the carcase, &c. BERKSHIRE, to wit: The jurors for our lord the king upon their oath present, that A. B., late of the parish of in the county aforesaid, labourer, on the third day of November, in the fifth year of the reign of our sovereign lord William the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, |