bery than this fact, he will be admitted to his clergy, 2 East P. C. 776. The name and addition of the defendant are to be stated as in other indictments, see 1 vol. 202 to 211. Description of the property stolen. The kind of property stolen must be accurately stated in the proceedings; and it will not suffice to term it goods and chattels without a more particular description. So if a defendant be indicted for stealing sheep, and it appear to be a lamb, it is said he must be acquitted. 4. Bla. Com. 240. n. 13. Christ. ed. 2 Hale, 182, 3. ante 1 vol. 235, 6. But an indictment for stealing bank notes is good, if it merely describe them as much as such without setting them forth; or they may be described "promissory notes, called bank notes," or "promissory notes called bank post bills," according to the fact. So a promissory note may be generally described as " a promissory note for the payment of five guineas," and if its purport be set forth, it will be bad, unless it follows the description of the statute, making it felony to steal it, 1 Leach, 253, 513. 2 Leach, 1103. and in notis. Care should be taken on the record, that the property charged as stolen was the subject of larceny. Thus, if it consists in animals, in themselves fera naturæ, it should expressly state them to be reclaimed, tamed, or dead, in which state they become the subjects of individual property. It has also been resolved, that where the property is of a nature to warrant that description, it should, in addition to the statement of this kind, be termed "the goods and chattels" of the owner, and without these or equivalent words, the indictment will be defective. Cro. Eliz. 490. the same principle, it should be averred to be " of the monies," "of the cattle," &c. when those terms apply. Certain it is, that if these words be unnecessary, they may be rejected as surplusage, and therefore, it is both safe and prudent to insert them. 1 Leach, 468. The number of the things stolen should also appear, because, not only is this part of the legal description, but the prosecutor cannot, in strictness, claim restitution of any other goods than those stated on the record. 2 Hale, 182. ante 1 vol. 235. And where the things stolen are of defferent kinds, the quantity of each kind must be stated distinctly; and, if the indictment allege that the defendant took twenty sheep, ewes, and lambs, it will be bad, though twenty sheep generally might, it is said, have been good, without making any inferior distinction. 2. Hale, 183. But, in general, it is not necessary to prove in evidence, the [*948] precise number,* if laid under a scilicet; though it has been holden necessary in an indictment for embezzlement, to state the exact sum converted to the use of the offender. 2 Hale, but see ante 1 vol. 227. The value of the property must also be On may appear on the face of the re- expressed, in order that it cord, whether the offence is the property is of different be inserted, 2 Hale, 182, 3. Description of the owner. Wherever the owner of goods is known, the property must be expressly laid in him, 1 Hale, 512. 2 Leach. 578. 3 Camp. 265. in notis. ante 1 vol. 212, 3, 4. A special property in them is sufficient for this purpose, and, therefore, a carrier, lessee for years, or a party to whom goods are pawned or bailed, may be described as owners, or they may be laid as the property of the person who is beneficially interested in them, 1 Hale, 512. So goods stolen from a laundress, who has them in charge to wash them, may be safely described as hers, because she is answerable for them to her employers, 1 Leach, 357. in notis. Goods purloined from an inn, may be well laid as belonging to the inn keeper, or the guest who has put them under his protection, id ibid. Where a man has cattle to agist, which are taken from his custody, the property may be laid in him, because he may maintain trespass, id. ibid. 2 Rol. Abr. 551. If a coach be standing in the yard of a coach maker to be repaired, and a plate glass and hammer cloth be stolen from it, the property may be well laid in the owner of the premises, 1 Leach, 356. And where a parcel is stolen from a stage coach, the property may be well laid in the driver, though he be no proprietor either of the goods or the coach; because, though as against his employers he has only a bare charge, as against all the rest of the world he has the legal possession, 2 Leach, 862. But if the party alleged to be owner, has neither the property nor the legal possession, as where goods are stolen from a feme covert, or a servant holding them for his master, the defendant must be acquitted; when another indictment, rectifying the mistake may immediately be preferred against him, 1 Hale, 513. as to these points see ante 1 vol. 212 to 217. 2 Saund. 47. a. n. 1. Clothes and necessaries provided for children, may be well described as belonging either to them or to the father. 1 Leach, 464. in notis: but if the clothes be furnished by a father to a son who is bound apprentice to him, in pursuance of indentures in which he covenants to clothe him, in return for his service, the property must be laid in the son, or the indictment will be defective, 1 Leach, 463. A corpse is the property of no one, and, therefore it is no felony to steal it, though it is a high misdemeanor against morality and decorum and as* such has been already considered. 2 T. R. 733. ante 2 [*949] vol. 35. But it is larceny to steal a shroud or coffin, and they may be well laid to belong to the personal representatives of the deceased, though not to the deceased himself, who can no longer possess any thing, 1 Hale, 515. 12 Co. 112. 2 Hale, 181. ante 1 vol. 214. If the personal representatives of the deceased cannot be found, or from the lapse of time it cannot be discovered, whose body was inclosed in the coffin, it may be laid as the property of some one unknown, but cannot be said to belong to the churchwardens, 2 East, P. C. 652. If goods be stolen from a person who has them as executor, they may either be described as the goods of the testator, in the custody of his personal representative as such, or as the property of the latter, without adverting to the capacity in which he held them, 1 Hale, 181. 2 Saund. 47. a. n. 1. as to trover. If the goods of an intestate be stolen before administration is granted, the property should be laid in the ordinary; if an executor be appointed in a will, they shall be laid to be his, though before probate; for in both these cases, without determining any question of property, the parties have the legal possession; their title, therefore, need not appear, but they may be described generally as owners, 1 Hale, 514. If a man steal lead or other effects from a church, there is no occasion to lay the property in any one, but it may be laid in the rector or vicar, 2 East, P. C. 651. ante 1 vol. 214. And if the theft be effected in time of vacancy, the offender may be indicted for stealing the goods of the chapel, in the custody of those who have the care of them; or if the place be a parish church, the property may be laid in the parishioners at large, 1 Hale, 512, 3 Campb. 264, 5. Hawk. b. 1. c. 33. s. 45. ante 1 vol. 214. Where the proprietor cannot be ascertained, an indictment laying the goods to be the property of a certain person unknown, will be valid, Keilw. 25. 2 Hale, 181. and ante 1 vol. 212. In this case, they will be forfeited to the crown on the conviction of the offender. But if the owner is known, such an allegation will be improper, and on the discovery of his name on the trial, the prisoner must be acquitted. 2 Campb. 264, 5. ante 1 vol. 212. So in indictments for stealing in dwelling house, or from lodgings, the name of the owner of the premises, if known, should be truly inserted. 1 Leach, 89. 21. 78. 9. 237. 252. 336. 338. 545. 2 Leach, 774. 2 Hale, 244. ante 1 vol. 213. In stating the name of the owner, it is not necessary to give any addition, as the statute of additions extends only to the defendant. 2 Leach, 861. 2 Hale, 182. though it may be sometimes proper for the purposes of distinction. And [*950] it will suffice, if the name is used by which the party is commonly known. Thus where the goods stolen were laid to be the property of Victory, Baroness Turkein, by which title she was always addressed, though her real name was Salina Victorie, the indictment was held valid, 2 Leach, 861. As to the description of the prosecutor in general, see 1 vol. 215, 6,7. The taking and asportation must both be expressly shown. For this purpose the term cepit was essential when the proceedings were in Latin, and the word took is as necessary now, 1 Hale, 504, 8. 2 Hale, 184. If, therefore, it be merely abduxit or led away, no larceny will be charged; for the defendant, for any thing which appears on the record, might lawfully have obtained possession, 2 Hale, 184. Words of asportation are equally requisite. In case of goods or chattels, the old terms were cepit et asportavit, of cattle. cepit et effugavit, of a horse, cepit et abduxit, 1 Hale, 504. The words feloniously and stole are also necessary in order to fix the party with a criminal intention, id. ibid. Without these a trespass only would be charged, and the defendant must be acquitted. The indictment usually concludes to the damage of the owner, and against the peace of his majesty. In these and other respects not particularly noticed, it resembles indictments for other felonies. See vol, c. 5. Where the proceedings vary under circumstances of aggravation, or where a statute takes away clergy, the particulars will be found noticed in the notes to the precedents, to which they immediately apply. There is no distinction between an indictment for grand or petit larceny, except the value of the property, 2 Stra. 1134. Trial, &c. On the trial, the defendant may be acquitted of Trial, &c. all aggravations, as stealing in a dwelling house, robbery, &c. and found guilty of a single felony; and on an indictment for grand, may be convicted of petit larceny. Com. Rep. 478. R. T. H. 115. Cas. K. B. 165. But on an indictment for robbery from the person, if the jury find a special verdict, stating facts which amount to larceny, but merely put it to the court to say whether the prisoner is guilty of the felony and robbery charged upon him, and the judges are of opinion that he is not, they cannot pass sentence as for the simple stealing; though prisoners may, however, be detained to be more correctly indicted. R. T. H. 113. And if the evidence does not prove a felony, no judgment can be given as for a trespass; for, though sometimes mentioned in the old books, it is no offence of which the law now will take cognizance. The punishment of larceny, in its various degrees, has The punbeen necessarily considered in the examination of the crime. ishment of larceny. The restitution of stolen goods will be found considered, 1 vol. 817 to 821. Parties convicted of petit larceny, were [*951] formerly disqualified from giving evidence, Willes, 665. 2 Crim. Law. VOL. III. 3 B Wills. 18. But by 31 Geo. III. c. 35. they are made competent witnesses. The offence. ACCESSARIES AND RECEIVERS OF STOLEN In grand larceny there are accessaries before and after the fact as in other felonies. Thus, a man may be accessary before the fact in stealing his own goods if he procure another to do so with a felonious design. Cro. Eliz. 537. and accessary after if he receives the felon and assists him to escape. Fost. 123. In this offence at common law, those present aiding and abetting, are principals in the second degree; though it is otherwise under some of the statutes which take away clergy, and which are not construed to extend to accessaries or abettors, unless they expressly name them. In petit larceny there can be no accessaries; those who procure, aid or advise, are principals; and those who merely assist the felon's escape, are not, at common law, regarded as criminal, 1 Hale, 530, 616. nor at common law, did knowingly receiving stolen goods make a man accessary, unless he harboured or assisted the original offender. This offence was only a misdemeanour, and could not be punished with any severity adequate to its mischievous effects. It has, therefore, been made the subject of several legislative provisions which we will briefly consider. The 4 and 5 W. and M. c. 9. s. 4. enacts that if any person shall buy or receive any goods or chattels that shall be feloniously taken or stolen from any other person knowing the same to be stolen, he shall be taken and deemed an accessary to such felony after the fact, and shall incur the penalties which attach to offenders in that degree. After this act, no indictment as for a misdemeanour at common law, could be supported. 1 Ld. Raym. 711, 2. This act, it will be observed, merely makes the receivers of goods accessaries as the receivers of felons were before; it creates no new offence; and therefore, the persons against whom it was directed merely became accessaries as at common law and could not be punished in case of the principal's escape; but the 1 Ann. st. 2. c. 9. s. 2. reciting this inconvenience provides, "that it shall be lawful to prosecute and punish every such person buying or receiving any stolen goods knowing [*952] the same to be stolen as for a misdemeanour* to be punished by fine and imprisonment, although the principal felon be not before convicted of the said felony, which shall exempt the offender from being punished as accessary, if the principal |