said, upon their oath aforesaid, do further present that the said A. B. late of, &c. being so convicted as aforesaid, after the said conviction, on, &c. with force and arms, at, &c. in a certain uninclosed part of a certain forest called — - there situate, unlawfully and wilfully did course, kill, and carry away [or either “hunt, snare, wound, or attempt to kill," as the fact may be] one fallow deer of the value of five pounds, then and there being in the said uninclosed part of the said forest, against the form of the statute, &c. and against the peace, &c.

Indictment under Section 29, against a Party having unlawfully entered a place where Deer are kept, for beating or wounding Keepers or their Assistants in the execution of their duty.

That A. B. late of, &c. on, &c. with force and arms, at, &c. into a certain forest (1) called - [or into certain inclosed land in the occupation of —] there situate, wherein deer of and belonging to one C. D. the owner of the same had been, and then were usually kept, did unlawfully enter with intent then and there unlawfully to hunt the said deer, and that one E. F. then and there being a person entrusted with the care of the deer of and belonging to the said C. D. and then being in the said forest, then and there after the said A. B. had so entered into the said forest as aforesaid, and whilst he, the said A. B. was and remained in the said forest which he had so entered for the purpose aforesaid, did lawfully and duly demand from the said A. B. a certain gun [or “snare, engine,” &c. according to the fact] then and there being in the possession of the said A. B. [or “a certain dog then and there brought by the said A. B. for the purpose of hunting, coursing, and killing the said deer"], and that the said A. B. then and there failed to deliver up the said gun [or engine, &c.], and altogether refused so to do; and that upon the said A. B. then and there so failing and refusing to deliver up the said gun, he, the said E. F. did then and there lawfully attempt to seize and take the same from the said A. B. for the use of the said C. D. the said owner of the said deer, as it was then and there the duty of the said E. F. to do, and as he lawfully might do for the cause aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B. thereupon, then and there, with force and arms, in and upon the said E. F. then being a person entrusted with the care of the said deer within the said forest as aforesaid, and then and there being in the due execution of his said duty as aforesaid, and of the powers given to him in that respect by the statute in such case made and provided, unlawfully, violently, and feloniously did make an assault, and him, the said E. F. so being in the execution of the said duty and powers as aforesaid, then and there unlawfully and feloniously did beat and wound, against the form of the statute, &c. and against the peace, &c. And the jurors, &c. do further present that the said A. B. on, &c. aforesaid, with force and arms, at, &c. aforesaid, unlawfully and feloniously did make an assault in and upon the

afforded by 7 & 8 G. IV. c. 28, s. 11, in cases of previous convictions for felony, do not apply where the party is not laid in the indictment to have been duly convicted; or if he was not duly convicted in fact, e. g. having been convicted, but not in the proper county;

or if the conviction, being joint, viz. of four, the indictment states it to be of one, R. v. Allen, R. & Ry. 513.

(z)" Forest, chase, park, wood, or plantation," were held" open or inclosed grounds" within 57 G. III. c. 90; R. v. Parkhurst & another, R. & Ry.503.

said E. F. then and there being a person entrusted with the care of the deer in a certain forest there situate, wherein deer had been, and then were usually kept, and then and there being in the due execution of certain powers given in that behalf by an act of parliament made and passed in the reign of his present majesty for consolidating and amending the laws in England relative to larceny and other offences connected therewith, and the said A. B. then and there unlawfully and feloniously did beat and wound him the said E. F. so being in the due execution of the said powers as aforesaid, against the form of the statute, &c. and against the peace, &c.

SECTION VIII.

OF LARCENY BY TENANTS AND LODGERS.

As lodgers and tenants of ready-furnished houses have a special property in the goods let to them for hire, it seems that at common law, they could not be indicted for larceny in stealing the goods so let to them (a); and it has been decided, that if a man hires a furnished lodging with intent that his comrade should steal the furniture, the comrade removing it cannot be indicted at common law for stealing the goods of the original owner (b). To remedy the original defect in the law, the 3 W. & M. c. 10, s. 5, was passed; but difficulties arose on its construction (c), and it is now repealed and superseded by 7 & 8 G. IV. c. 29, s. 45, which not only makes it larceny for a tenant or lodger to steal a chattel, but a fixture, of which, at common law, no larceny could be committed by any one. That section enacts, "That if any person shall steal any chattel or fixture, let to be used by him or her, in or with any house or lodging, whether the contract shall have been entered into by him or her, or by her husband, or by any person on behalf of him or her, or her husband, 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 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 any 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."

The form of the indictment is sufficiently prescribed by the statute. Where a chattel is stolen, the indictment will be as for larceny at common law, ante, s. 2; when a fixture is stolen, as ante, s. 5 of this chapter.

(a) R. v. Meeres, Show. 50.

R. v. Belstead, Russ. & Ry. 411.

(c) 1 Moo. C. C. 1, R. v. Healey.

SECTION IX.

OF LARCENY BY CLERKS AND SERVANTS.

When a Servant is guilty of Larceny at Common Law.]-The question, whether a servant is guilty of larceny, in appropriating the goods of his master when they are lawfully in his own actual custody, depends on the nature of the custody, and the degree of trust reposed in him. Where he has the mere charge or custody of them, it is clear that the legal possession remains in the master, and that the servant is guilty of larceny at common law in stealing them (d). Thus a servant who goes off with money given to him by his master to carry to another, and applying it to his own use, is guilty of larceny (e); so is a clerk employed as such in the day time, but not residing in the house, who embezzles a bill received from his master in the usual course of business, with directions to send it by post to a correspondent (ƒ).

Indictment under this Section for Larceny by a Servant of Goods, Monies, and Securities, belonging to, or in the Possession and Power of his Master.

That before and at the time of committing the offence hereinafter next mentioned, A. B. late of, &c. labourer, on, &c., with force and arms, at, &c. being then and there a servant to one C. D. feloniously did steal, take, and carry away one gold ring of the value of ten shillings, ten pieces of the current silver coin of this realm called shillings, of the value of ten shillings, and one promissory note of the governor and company of the bank of England for the payment of five pounds, then unpaid and unsatisfied, being a valuable security for the payment of the said sum of five pounds, and of the value of five pounds, of the monies, goods, chattels, and valuable securities of the said C. D. his master as aforesaid, and belonging to the said C. D. against the form of the statute, &c. and against the peace, &c.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B. while he was such servant to the said C. D. as aforesaid, to wit, on, &c. aforesaid, with force and arms, at, &c. aforesaid, feloniously did steal, take, and carry away one other gold ring, &c. [as before] then and there being in the possession and power of the said C. D. his master as aforesaid, against the form of the statute, &c. and against the peace, &c.

Severer Punishment prescribed by 7 & 8 G. I V. c. 29, s. 46.]—To protect masters against thefts by their servants, whether partially entrusted with the property or not, larceny by them is subjected to a severer

(d) See ante, p. 222, and 2 Russell on Crimes, Ch. XVI. where all the cases on this subject are fully collected and explained.

(e) R. v. Lavender, 2 East's P. C. 566; 2 Russ. C. & M. 201, S. C. (ƒ) R. v. Paradise, 2 East's P. C.

565.

punishment than in ordinary cases. For this purpose, the 7 & 8 G. IV. c. 29, s. 46, enacts, "That if any clerk or servant shall steal any chattel, money, or valuable security, belonging to, or in the possession or power of his master, every such offender being convicted thereof, shall be liable, at the discretion of the court, to be transported. beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years; and, if a male, to be once, twice, or thrice, publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."

The provisions respecting embezzlement will be stated in the next section. Counts for such embezzlement, and also counts for larceny at common law, may be joined with the above when there is any doubt as to the facts, or as to the legal result of them when substantiated at the trial.

SECTION X.

OF FELONIOUS (g) EMBEZZLEMENT BY CLERKS AND SERVANTS. Distinction between Larceny and Embezzlement.]—The legal distinction between larceny and embezzlement by persons in the employ of those whom they defraud is this ;-in the former, the property is taken from the actual or constructive possession of the master, or has been delivered by him to the servant for a special purpose only; in the latter, the property has never been in the possession of the master, but being received by the servant for his master's use, is fraudulently appropriated to his own. To punish this offence, which the extended transactions of modern times have rendered of great moment, the common law contained no provision; but various statutes have been passed applicable to parties in different situations of trust, which are now consolidated by 7 & 8 G. IV. c. 29.

Clerks or Servants, receiving any Money, &c. on their Master's account and embezzling it, shall be deemed to have feloniously stolen it.]-The section 7 & 8 G. IV. c. 29, s. 47, generally applicable to clerks and servants, is as follows:-" That if any clerk or servant, or any person employed for the purpose or in the capacity of a clerk or servant, shall, by virtue of such employment, receive or take into his

(g) As to embezzlements which remain as at common law, misdemeanours; and as to certain embezzlements made

misdemeanours by statute, see post, Ch. VI. s. 11.

possession any chattel, money, or valuable security, for, or in the name, or on the account of his master, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such money, chattel, or security, was not received into the possession of such master, otherwise than by the actual possession of his clerk, servant, or other person so employed; and every such offender, being convicted thereof, shall be liable at the discretion of the court to any of the punishments which the court may award as herein before last mentioned ;”—that is, the same punishment as is prescribed by section 46 for larceny from masters, viz. transportation beyond the seas for any term not exceeding fourteen years nor less than seven years, or imprisonment for any term not exceeding three years, and, if a male, whipping, once, twice, or thrice, publicly or privately inflicted (h).

Circumstances necessary to constitute Embezzlement.]-This act is in substance the same as 39 G. III. c. 85, which it repeals; and therefore the decisions on the construction of the repealed act apply to that now in force. According to these, in order to constitute the offence of embezzlement these circumstances must concur :-the party must be a clerk or servant; he must have received the thing in question by virtue of his employment, and on account of his master; and he must fraudulently embezzle it.

1. He must be a clerk or servant in fact, but he need not be so called. Thus, an accomptant or treasurer to overseers (i), or to a corporation (j), though not appointed under the common seal (k), a female servant (), and an apprentice, though under age, if employed to receive the money which they purloin, may be thus guilty (m). A person engaged to travel for several houses, and allowed a per centage on the

(h) Nearly the same punishment is inflicted for embezzlement of any chattel, money, or valuable security, &c. by persons employed in the public service, see 50 G. III. c. 4; 2 W. IV. c. 4. It seems that larceny by a clerk in a public office of the crown, e. g. collector of customs at a port, is not within 7 & 8 G. IV. c. 29, s. 46; Reg. v. Lovell, 2 M. & Rob. 236.

(i) R. v. Squire, Russ. & R. 349.
(j) Per Vaughan, B., Williams v.
Stott, 3 Tyr. R. 703.

(k) R. v. Wellings, 1 C. & P. 457.
(1) R. v. Eliz. Smith, R. & Ry. 267.
(m) R. v. Mellish, R. & Ry. 80. A

servant not authorized to receive money was standing near a desk in his master's counting-house. A debtor to the master paid this servant, supposing him authorized, and he never accounted for it to his master, R. v. Crawley, (cited by Alderson, B., from his MS. in R. v. Hawtin, 7 C. & P. 281, S. P.) This is not embezzlement, R. v. Crawley (decided on the authority of R. v. Mellish, and cited by Alderson, B., in R. v. Hawtin, from his own MSS.); nor is it larceny, for the money had been entirely parted with by the debtor, and had never come to the master's hands, R. v. Hawtin. See R. v. Thorley, p. 263 and p. 264.