[*958] liver, or cause or procure to be sold or delivered to any person whomsoever, or who shall willingly or knowingly receive or have in his custody possession or keeping, any stores of war, or naval, ordnance or victualling stores, or any goods whatsoever marked as in the said recited acts are expressed, or any canvass marked either with a blue streak in the middle, or with a blue streak in a serpentine form, or any bewper otherwise called buntin, wrought with one or more streaks of raised tape (the said stores of war, or naval, ordnance or victualling stores or goods above mentioned, or any of them being in a raw or unconverted state, or being new or not more than one third worn,) and such person who shall conceal such goods, or any of them marked as aforesaid, shall be deemed receivers of stolen goods knowing them to be stolen, and shall, on being convicted thereof in due form of law, be transported beyond the seas for the term of fourteen years, in like manner as other receivers of stolen goods are directed to be transported by the laws of this realm, unless such person shall upon his trial produce a certificate under the hands of three or more of his majesty's principal officers or commissioners of the navy, ordnance or victualling, expressing the numbers, quantities or weights, of such stores or goods as he shall then be indicted for, and the occasion and reason of such stores or goods coming to his hands or possession." The second section directs, that persons in whose custody naval stores, &c. shall be found, and all who are convicted of any offence contrary to 8 & 9 W. III. shall, besides forfeiting the stores, 2001. and the costs, be corporally punished by pillory, whipping and imprisonment, or otherwise, at the discretion of the court; but they are still left at liberty to mitigate the stated penalty. The third section provides, that contractors shall have no exemption except for stores bona fide made up, and not yet delivered to the proper officers. The fourth section makes the defacing of marks on stores, a single felony. The fifth section makes a second offence under this act, or 9 & 10 W. III. punishable with transportation for fourteen years: and the sixth makes a return from any transportation under this statute, felony without benefit of clergy. But the transportation may always be mitigated into corporal punishment at the discretion of the court in which the offender is convicted. These acts, it will be observed, are all in the disjunctive, "receive or buy," "receive or have in possession." It is not necessary, therefore, that the defendant should have purchased the goods in* order to make his offence complete; nor indeed, is it essential to the crime that he should have an interest in them; it will suffice if he received them merely to assist and skreen the original offender, 2 East, P. C. 876. There seemed indeed, to be some doubt, whether, if the jury found a having in possession, but not a receiving, the prísoner would come within 39 and 40 Geo. III. but the majority of the judges thought in the affirmative, 2 East P. C. 767; and on the general principles by which disjunctive statutes are construed, it seems difficult to conceive how the doubt could have arisen. By the statutes, the king's mark on the stores is presumptive evidence of ownership: it fixes the party with the offence of unlawfully having possession, unless he can produce the certificate from the commissioners, of the occasion which renders it legal: but by an equitable construction of the provisions, it is holden that if the defendant can shew he had no evil design, but that the possession was really innocent, though he cannot excuse himself by the means prescribed he will be acquitted. Thus where a widow was indicted for having naval stores which had been wrought into table linen, and it was shewn that her husband had bought them many years ago at a public sale, that at his death they came by act of law to her, and that she had always used them openly and without disguise, Mr. J. Foster directed the jury to acquit her, Fost. 439. The offence of taking money to assist the owners to stolen goods, has been considered already as an injury to public justice, ante 218, 9. Indictment. In cases of receiving goods in one part of the Indictkingdom which are stolen in another, there was formerly ment. some difficulty as to the place in which the venue should be laid. But this is entirely removed by 13 Geo. III. c. 31. s. 5. as it respects Scotland and England, which enacts, that the venue shall be laid in the jurisdiction in which the defendant was guilty of receiving, as if the original felony had been committed there. And by 44 Geo. III. c. 92. s. 8. after the union with Ireland, the same rule is laid down where the theft is committed in one of the three parts of the united kingdom, and the receiving takes place in another. If the principal offender be unknown, the indictment will be good if it so describe him; but wherever he is known, the averment ought to be according to the truth of the facts concerning him, 3 Campb. 264.; and, therefore, where the principal was described in the indictment as unknown, and his name was inserted on the back of the bill as a witness before the grand jury, the judge directed an acquittal, 3 Campb. 264. The common form of the indictment for receiving stolen goods is to state, first, the fact of stealing* of them by the principal, and then the receipt of [*959] them by the receiver, he then and there well knowing the goods to have been feloniously stolen. There is no occasion to state the time or place to the original stealing, it will Crim. Law. VOL. III. 3 c The evidence. suffice if it be stated to the offence of the receiver, 2 East, P. C. 780. When the defendant is indicted as an accessary to the felony, it is sufficient to state that the principal was duly convicted without proceeding to aver his attainder, 2 Leach, 925. And in indictments on 22 Geo. III. c. 58. for the misdemeanour, it will be unnecessary to allege that the principal has not been convicted; as it is a mere negative averment which the prosecutor could not be called upon to substantiate in evidence, 2 Leach, 578. 5 T. R. 83. The words "well knowing" are a sufficient averment that the defendant knew the goods to be stolen, 2 Stra. 904. Com. Dig. Indictment. G. 6. If the indictment state that F. M. received the goods, "he the said T. M. knowing, &c." the words "he the said T. M." in which the name is wrong, may be rejected as surplusage, 1 Leach, 109. When the indictment wants the word feloniously, in cases where an indictment for a misdemeanour would lie, it will be held good as for the lesser offence, 2 Sess. Cass. 10. As the mere having naval stores in possession is not an offence at common law, the indictment must conclude contrary to the form of the statute, or judg ment will be arrested, 2 Ld. Raym. 1104. Evidence. In indictments on the statutes, on which the receiver may be punished, though the original felon is not convicted, the latter may be examined as a witness on the trial, 1 Leach, 418, 9. 2 Leach, 927. in notis. So on 4 Geo. I. c. 11. which makes it capital to take a reward for the purpose of assisting another to stolen goods, the thief may be sworn and give evidence; on which testimony Jonathan Wild was convicted, 1 Leach, 17. in notis. Where the receiver is indicted as accessary, to support the averment that the original felon was duly convicted, it is sufficient to give in evidence an examined copy of the record, shewing that he was guilty of the felony before a court of competent jurisdiction; and this will suffice however informal the proceedings may appear, and however the judgment may be erroneous. It is good against accessary till it be reversed, 3 Campb. 265.: but it is not conclusive; for he may dispute the guilt of the principal, and by shewing his innocence will necessarily establish his own, 1 Leach, 288. The Punishment will be found set forth in the recital of the statutes which regulate the offence. 389 INDICTMENTS FOR LARCENY. GENERAL FORMS AGAINST PRINCIPALS AT COM MON LAW. form of in Middlesex. (b) The jurors for our lord the king, upon [*960] their oath present, that A. B. late of, &c. labourer, on, &c. General with force and arms, at, &c. aforesaid, one silver spoon, (c) dictment of the value of ten shillings, (d) of the goods and at common chattels of one J. L., (e) two brass candlesticks, of the value law of two shillings, and two linen shirts, of the value of six shil- for grand larceny, in lings, of the goods and chattels of one E. W. then and there stealing being found, feloniously (ƒ) did steal, (f) take (g) and carry the proaway, (h) against the peace of our said lord the king, his perty of crown and dignity. different persons. [Commencement and conclusion as supra] a small quantity (a) of hay, of the value of sixpence, of the goods and chattels of For stealG. W. then and there being found, feloniously, &c. sacks of ing hay. [Commencement and conclusion as supra] ten sacks of wheat, For steal(i) of the value of twelve pounds, of the goods and chattels of ing ten one C. S. then and there being found, feloniously, &c. [Commencement and conclusion as supra] ten sacks of wheat wheat. (*) meal, of the value of pounds of the goods and chattels ing ten of one C. H. then and there being found, feloniously, &c. For steal sacks of meal. (k) [Commencement and conclusion as supra] thirteen pieces of wheat the current gold coin of this realm called guineas, of the For stealvalue of thirteen pounds, thirteen shillings, of the monies ing of the said A. B. in the same dwelling house, then and there guineas. being found, feloniously, &c. [Commencement and conclusion as ante 960.] twenty pounds [*961] weight of wool, of the value of ten shillings, of the goods For stealand chattels of one J. C. then and there being found, felo- ing wool. niously, &c. (a) See similar precedents, Cro. C. C. 246. Starkie, 426. where several persons' goods are taken at the same time, so that the transaction is the same, the indictment may properly include the whole, but not so if the takings were at different times, ante 1 vol. (b) As to the venue see ante 944, 5. as to the commencement ante 2 vol, 1, 2, 3. (c) As to the description of the property stolen see ante 947. (d) The value must be stated, 2 Hale, 182, 3. as to this statement ante 948. It seems advisable to state the value separately, 2 Hale, 183. Quere note 2 Starkie, 426. n. c. (e) This allegation is proper, Cro. Eliz. 490. As to the owner see ante 948. when he is unknown he may be described as "a certain person to the jurors unknown," but not when he is known, 3 Campb. 264. (f) There terms are necessary, ante 950. (g) This word is material, 2 Hale, (h) See ante 950. 2 Hale, 184. (1) See form 1 Leach, 171, (2) For stealing silver spoons. For steal rious [Commencement and conclusion as ante 960.] two silver table spoons, of the value of twenty shillings, of the goods and chattels of J. H. then and there being found, then feloniously, &c. That J. A. late of, &c. on, &c. with force and arms, at, &c. ing arti- aforesaid, one wood-shelf, of the value of (n) one lancles of va- thorn, of the value of one tin grater, of the value ofkinds be- six crutches, of the value of, two books of the value longing to of, one curtain rod, of the value of, and five linen Saint Bar- rollers, of the value of, of the goods and chattels of the tholomew's hospital. (m) For steal. ing boxes, shoes, pocketbooks, sugar, and kettles. mayor and commonalty and citizens of the city of London, as governors of the house of the poor, commonly called Saint Bartholomew's Hospital, near West Smithfield, London, of the foundation of king Henry the Eighth, then and there being found, feloniously did steal, take, and carry away, against the peace of our said lord the king, his crown and dignity, &c. [Commencement and conclusion as ante 960.] two boxes of the value of, twenty-two pair of shoes, of the value of, four pocket books, of the value of, one bag, of the value of, four pounds weight of sugar, of the value ofof, two kettles, of the value of, of the goods and chattels, &c. [conclude as ante 960.] For re- goods or INDICTMENTS FOR LARCENY. GENERAL ACCESSARIES. [To the end of the Indictment ante 960. against the principal, and then as follows.] And the jurors aforesaid, upon their oath aforesaid, do further present, that F. M. late of, &c. labourer, afterwards, to wit, on, &c. with force and arms, at, &c. aforesaid, the goods and chattels aforesaid, (or "one silver watch, being parcel of the goods and chattels aforesaid") so as aforesaid, feloniously stolen, taken and carried, away, feloniously did receive and have, he the said T. M. [*962] then and there* well knowing (p) the said goods and chattels W. and M. c. 9. s. 4. (0) (m) This indictment was settled (0) See a similar precedent, 1 ments against accessaries in gene- cessaries, 1 vol. 261 to 267. See indictments against receivers of lead, post; and indictments against accessaries before the fact, or by harbouring the principal felon, ante 2 vol. 5, 6. (p) This is a sufficient allegation of knowledge, 2 Stra. 904. Com. Dig. Indictment G. 6. ante 959. |