of wood-work, containing therein fifty square feet of wood, of the value of twenty shillings, the property of C. D. and belonging to a certain dwelling-house [or as the case may be] and building (h) of the said C. D. there situate, against the form of the statute, and against the peace, &c. Indictment for stealing Lead, &c. fixed to a Building (7 & 8 G. IV. c. 29, s. 44). That A. B. late of, &c. on, &c. with force and arms, at, &c. feloniously did steal, take, and carry away [or, feloniously did rip, cut, and break] twenty pounds weight of lead, twenty pounds weight of copper, and twenty pounds weight of brass, of the value of twenty shillings (i), and then and there being fixed to a certain dwellinghouse [or, to a certain building (h) as the case may be] of the said C. D. there situate, against the form, &c. and against the peace, &c. The jury must believe that the prisoner unfixed the lead from the building, or was aiding and abetting: for a person cannot be convicted of larceny on this count (j). Indictment for ripping, cutting, and breaking Metal fixed to a Building, with intent to steal (7 & 8 G. IV. c. 29, s. 44). That A. B. late of, &c. on, &c. with force and arms, at, &c. feloniously did rip, cut, and break, twenty pounds weight of lead, twenty pounds weight of copper, twenty pounds weight of iron, and twenty pounds weight of brass, of the value of twenty shillings, the property of C. D. and then and there being fixed to the dwelling-house [any building whatsoever (h)] of the said C. D. there situate, with intent then and there feloniously to steal, take, and carry away the same, against the form, &c. and against the peace, &c. Indictment for stealing any Utensil, Fixture, or Thing made of Metal, or other Material, fixed in or to any Building, or in any Land, being private property (k) (7 & 8 G. IV. c. 29, s. 44). That A. B., late of, &c. on, &c. with force and arms, at, &c. one leaden pipe, of (h) The words "building called a temple" were held sufficient, without further description of its uses, as a summer-house for drinking tea, and retirement, R. v. Norris, R. & Ry. 69. The words there decided on were those of 4 G. II. c. 32, "fixed to any dwellinghouse, out-house, coach-house, stable, or other building used or occupied with such dwelling-house or thereunto belonging, or to any other building whatsoever;" whereas the enactment of 9 G. IV. is general, viz. "any building whatsoever." See R. v. Blick; R. v. Worrall, post. (i) It seems wrong to state the metal, &c. to be the property of any person : per Buller, J. in Hickman's case, 1 Moo. C. C. 2, note (b); 2 East's P. C. 593. (j) R. v. Gooch and Devonshire, 8 C. & P. 293, Tindal, C. J. and Vaughan, J.; R. v. Gooch, ibid. (k) The words "utensil or fixture" used in this clause of the statute being generic terms, it may be insufficient to pursue the words in the statute, and it is better, at least in one count, to designate the particular offence charged, by laying the species of utensil or fixture, e. g., a sink, pipe, cupboard, &c. according to the truth of the case, see Archbold, Cr. Pl. & Ev. 6th ed. 46. Thus, where killing" cattle" was made felony by 9 G. I. c. 22, s. 1, it was held necessary to state the particular species of cattle killed according to the fact, thus: the value of ten shillings, containing therein fifty pounds weight of lead, and one wooden pipe, containing twenty square feet of wood, of the value of ten shillings, then and there being fixed in certain land, to wit, a garden of the said C. D. there situate, which then and there was the private property of the said C. D. feloniously did steal, take, and carry away, against the form, &c. and against the peace, &c. Indictment on 7 & 8 G. IV. c. 29, s. 44, for stealing, or ripping, &c. Metal fixed as a Fence for a Dwelling House, Garden, or Area. That A. B. late of, &c. on, &c. with force and arms, at, &c. one iron rail, of the value of five shillings, containing twenty pounds weight of iron, the property of C. D. then and there being fixed for a fence, and being part of a fence to an area [or garden, or dwelling-house] of the said C. D. there situate, feloniously did steal, take, and carry away, against the form of the statute, &c. and against the peace, &c. Indictment on the same Section for stealing or ripping, &c. a Thing made of Metal in a Street, Square, &c. wherein it is unnecessary to allege the article to be any person's property. That A. B. late of, &c. on, &c. with force and arms, at, &c. one iron rail of the value of five shillings, containing therein ten pounds weight of iron, then and there being fixed in a certain square there situate, called square, being a square dedicated to public use [or street, &c.] then and there feloniously did steal, take, and carry away (or did rip, cut, and break), against the form, &c. and against the peace, &c. Indictments for ripping, cutting, and breaking metal fixed in land, being private property, or in public squares, may be easily framed on the above, by merely substituting for the words "feloniously did steal, take, and carry away," the words "feloniously did rip, cut, and break, with intent then and there feloniously to steal, take, and carry away the same." A church having been held to be within the meaning of the words "other building" in 4 G. II. c. 32, is within the more comprehensive terms of 7 & 8 G. IV. c. 29; and it seems that stealing iron rails or brass, fixed to a tomb or tomb-stone in a church-yard, is now felony, "certain cattle, to wit, one colt," R. v. Chalkley, Russ. & Ry. 258. Post, Sect. 13. In R. v. Francis Finch, 1 Moo. C. C. 418 (A. D. 1834), the indictment was for stealing "six feet of copper pipe, value five shillings, the property of J. S. fixed to the dwelling-house of E. D. and S. A." The second count stated it as the property of E. D. and S. A. fixed to their dwelling-house. The question was whether the dwelling-house was properly described as that of E. D. and S. A. As both the rooms, of which the house of J. S., the prosecutor, consisted, were let to A. and B. as separate tenants, and the pipe in question passed perpendicularly down the outside of, and against, both their rooms, part being against the ceiling of each, the prisoner was held entitled to acquittal. See ante, p. 188, 189. though not connected with the church by any building (k). The punishment is the same as that of simple larceny. (See ante, p. 235.) SECTION VI. OF STEALING TREES, &C., AND CUTTING OR DAMAGING, WITH INTENT TO STEAL THEM. Offences as to Trees, &c. provided against by 7 & 8 G. IV. c. 29.] -As trees, shrubs, fruit (1), vegetables, and fences, are affixed to the freehold, and savour of the realty, it was not, at common law, an indictable offence to take, cut, or injure them, unless they were severed at one time and removed at another, in which case the fraudulent removal was always larceny (m). Statutes, have, therefore, been repeatedly passed for their protection; and these have been consolidated by 7 & 8 G. IV. c. 29, s. 38, 39, 40, 41, 42, 43. Although the acts there provided against are not all punishable by indictment, it seems better to insert them here in their connexion, as they comprise the entire law on a subject, the indictable parts of which daily become more likely to be brought before courts of quarter sessions. Stealing, or damaging with intent to steal Trees to the value of 11. in certain Situations, Felony.]—By section 38 it is enacted, “That 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 in any park, pleasure ground, orchard, garden (n), or avenue, or in any ground adjoining (0) or belonging to any dwelling-house, every such offender (k) R. v. Blick, 4 C. & P. 377; Bosanquet, J., but quære. See (on 4 G. II. c. 32, and 21 G. III. c. 68) R. v. Davis, 2 East, P. C. 593; 1 Leach, 496, S. C. An unfinished building, boarded up on all its sides, intended for a cart-shed, and having a door with a lock to it, and the frame of a roof with loose gorse thrown on it, because not yet thatched, was held a "building" within this section. R. v. Worrall, 7 C. & P. 516, Littledale, J. See R. v. Ellison and Vines, 1 Mood. C. C. 336. Stripping a house of lead after getting pos session of it, under a treaty for a lease, (1) See ante, p. 218, 219. (n) Whether ground be properly described in an indictment as a "garden," is a question for the jury, R. v. Hodges, M. & M. 341. (0) i. e. contiguous to, and having actual contact; so that ground sepa rated from a house by a narrow walk and paling, is not within these words, ib. (in case the value of the article or articles 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 and 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 hereinbefore 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, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny." Stealing, or damaging with intent to steal, Trees, &c. to the Value of ls. punishable summarily for first and second Offences, third as Felony.]-By 7 & 8 G. IV. c. 29, s. 39, it is enacted, "That 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, wheresoever 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 a justice of the peace, shall, for the first offence, forfeit and pay, 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 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 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 any person so twice convicted shall 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." Stealing, or cutting with intent to steal, Fences, &c., punishable, summarily, but not, in any case, indictable.]—By section 40, it is en acted, "That if any person shall steal, or shall cut, break, or throw down with intent to steal, any part of any live or dead fence, or 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, being convicted before a justice of the peace, shall, for the first 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 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 or privately whipped, after the expiration of four days from the time of such conviction." Summary Punishment for having Trees, &c. in Possession, and not accounting for same.]-By 7 & 8 G. IV. c. 29, s. 41, it is enacted, "That if the whole or any part of any tree, sapling or shrub, or any underwood, or any part of any live or dead fence, or any post, pale, rail, stile or gate, or any part thereof, being of the value of two shillings at the least, shall by virtue of a search warrant, to be granted as hereinafter mentioned (p), be found in 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 Fruit, Vegetables, &c., from Gardens, &c., punishable summarily for first Offence; second Offence Felony.]-By section 42 it is enacted, "That if any person shall steal or shall destroy, or damage with intent to steal, any plant, root, fruit, or vegetable production (g), growing in any garden, orchard, nursery ground, hothouse, greenhouse, 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 common gaol or house of correction, there to be (p) Sect. 63. (9) Does not include young fruit trees, R. v. Hodges, M. & M. 341. |