to steal the goods of Joseph Wakelin. It clearly appeared, that Wakelin had been inserted in the indictment, by mistake, instead of Davis; and the judges were of opinion, that this mistake was fatal as to the burglary; and that the prisoner was entitled to an acquittal, since the description of ownership was sensible and material, and could not be rejected as surplusage (x). In Durore's case the defendant was indicted for maliciously shooting at H. Sandon, in the dwelling-house of James Brewer, &c. it appeared in evidence to be the house of John Brewer, &c.; and the court held the variance to be fatal, though the allegation might not have been necessary to the validity of the indictment (y). But where a robbery laid to have been committed in the dwelling-house of A. is proved to have been committed in a dwelling-house, but no evidence is given of the proprietor's name, the defect is immaterial, since a robbery is ousted of clergy wherever it is committed (2). In an indictment or 'presentment (a) for the non-repair (x) East, P. C. 514. Leach, 896. S. C. but apparently misreported. (y) R. v. Durore, Leach, 390. tamen qu. and see the next note. (z) In Pye's case, Warwick, 1790, cor. Thompson, B. the robbery was laid to have been committed in the dwellinghouse of Aaron Wilday, but no evidence of ownership was given. In Johnston's case, coram Ashurst, J. a robbery was alledged to have been committed was in the dwelling-house of Joseph Johnstone; the house proved to belong to Johnstone, the husband of the prisoner, but his Christian name was not proved to be Joseph. And in both of these cases the judges held, that the prisoners had been properly convicted. (a) Latch, 183. Halsey's case, Pal. 389. 2 Roll. Rep. 412. 1 Str. 44. 10 Mod. 382. Andr. 145. R. v. Thompson, 10 W. 3. 1 Haw. c. 76. s. 86. of a high-way, the termini of the highway need not be stated, for highways have no bounds. But it must appear, that the road lies within the parish or other division charged with the non-repair. An indictment, charging that A. stopped a way at D. leading from D. to S. is bad, for from D. is exclusive of D. (b). So the word unto is exclusive: in the King v. Gamlingay the indictment stated, that "there was and is a common and ancient king's highway, leading from the parish of Hatley towards and unto the parish of Gamlingay; and that a part of the said highway, situate, lying, and being in the said parish of Gamlingay, containing in length, &c. was and yet is in great decay, &c. After conviction a rule was obtained for arresting the ́judgment; and the court were of opinion, that the indictment was defective, for the defendants were only bound to repair that part of the road which lies within their own parish; but the road is described as leading from Hatley unto Gamlingay, which excludes Gamlingay, and therefore judgment was arrested (c). So in the case of Hammond v. Brewer the question was, whether the stat. 26 G. 2. c. 54. for repairing the road to and from the town of Battel in Sussex, excluded or included the town of Battel; and it was holden, that both the words to and from were exclusive (d). A conviction under the stat. 5 G. 3. c. 14. for fishing without the leave of the owner, alleged the offence to have been committed "in part of a certain stream which runneth between B. in the parish of A. in the county of W. and C. in the same county;" and it was quashed, because it did not shew that the intermediate course of the (b) 2 Roll. Ab. 81. (c) Leach, 596. (d) 1 Burrow, 376. Leach, 597. stream between the two termini was in the county of W. (e). It has been holden necessary to state the extent of the evil complained of by a description of the length and breadth of the road out of repair (ƒ). But probably the omission of the quantity would not now be considered as a fatal objection; since the court does not now estimate the fine from the description of the length and breadth of the road, as stated in the indictment. And it has been holden, that an indictment, averring that a certain highway and bridge were in a ruinous condition, was good, though it did not state the extent of the nuisance. It is sufficient to describe the road as a common king's highway generally, without stating whether it was a footway only, or a way for horses, carts, and carriages; for if it be a common highway. it is an highway for all these purposes (g). III. Next as to the description of moveables. It is not allowable to aver generally, that the defendant stole the goods and chattels of J. S. without specifying them (h). And, according to Lord Hale, the same certainty is required in an indictment for goods as in trespass for goods, and rather more certainty; for what will be a defect of certainty in a count will be much more defective in an indictment; and the learned judge adds, therefore, for this matter vide title Count, et breve per totum (i). (e) R. v. Edwards, 1 East, R. 278. (f) 1 Haw. c. 26. s. 88. Cas. temp. Hard. 106. 316. (g) Cases temp. Hard. 315. 2 Saund. 158. Trem. 201. 205. Cro. Car. 266. 1 Salk. 359. (h) 2 Haw. c. 25. s. 74, 496. (i) Hale, 183, Chattels should, it appears, be described with certainty of their nature, quantity, or number, value, and ownership (k). In the description of the thing itself, certainty to a common intent, as it is technically called, is generally sufficient; which seems to mean such a certainty as will enable the jury to decide, whether the chattel proved to have been stolen, is the very same with that upon which the indictment is founded; and shew judicially to the court, that it could have been the subject matter of the offence charged, and enable the defendant to plead his acquittal or conviction to a subsequent indictment relating to the same chattel. Where the subject matter is defined by a statute, the descriptive words contained in the act should be also used in the indictment. Where the act uses several descrip tive terms, one of which being general includes the more specific term, an indictment would be bad, which used the more general instead of the more special description. Thus, it was holden, that an indictment under the stat. 14 G. 2. c. 6. and 15 G. 2. c. 34. for stealing a cow, was not supported by proof that the defendant stole a heifer ; the judges being of opinion, that as the statutes, upon which the indictment was founded, mentioned both heifer and cow, in describing the several animals they were intended to protect, the one must have been used in contradistinction to the other, and therefore that the evidence did not support the indictment (7). (k) R. v. Burnaby, Ld. Ray. 900. Playter's case, 5 Co. 34. R. v. Catherall, Str. 900. (1) Cooke's case, Leach, 123. But it has been held that a bill of exchange may be described as a warrant for the payment of money, although the stat. 7 G. 3. c. 50. s. 1. mentions both; see E. P. C. 994. and supra tit.Forgery and infra. tit. Vari anco. Seals set in gold come A certain dog, called a greyhound, has, it is said, been deemed to be a sufficient description of a greyhound (m). In an indictment (n) for stealing an animal, generally considered by the law to be feræ naturæ, it must be averred, either that it was dead or reclaimed at the time of the felony; and therefore an indictment for stealing a pheasant of the goods and chattels of H. S. was holden to be insufficient; for without an averment to the contrary, it must be presumed to continue in its original state. And the mere statement that they are of the goods and chattels, is not in itself sufficient (o). In an indictment under the stat. 22 & 23 C. 2. c. 25. against stealing fish out of ponds, &c. the fish may be alleged to be the prosecutor's property, though the allegation is not necessary (p); neither is this necessary under the stat. 5 G. 3. c. 14 (q). But unless the fish be taken from a trunk or stew, or other situation in which they are kept deprived of their natural liberty, it would be improper to describe them to be of the goods and chattels of the prosecutor (r), but if they be stolen from a trunk net, stew (s), or close pond (t), they are the subject matter of larciny, and may be described to be of the goods and chattels of the owner. But the indictment should de within the description of jew els under the stat. 10 G. 3. c. 48. R. v. Moses, E. P. C. 754. (m) In a conviction under the stat. 5 Ann. c. 14. Boscawen on Convictions, p. 97. (n) Staunf. 25 b. 3 Ins. 109, 110. Rough's case, East's P. C. 607. (0) Ib. (p) R. v. Steer and others, 3 Salk. 189. 6 Mod. 183. (r) But the description may be rejected as surplusage, E. P. C. 612. (s) R. v. Steer, 3 Salk. 189. 6 Mod. 183. (t) Lamb. 274. Staun. 25. 3 Ins. 109. 1 Haw. c. 33. s. 39. |