SECTION V. OF STEALING AND SEVERING MINERALS, AND RIPPING, CUTTING, OR BREAKING ARTICLES FIXED TO BUILDINGS AND IN PUBLIC PLACES. Stealing Things affixed to Buildings, &c.]-Ore remaining in its bed, and articles affixed to buildings, were not the subjects of larceny at common law while so affixed; and, therefore, their severance and removal, if effected by a single act, did not constitute felony. Several statutes were passed to protect particular things, especially lead, in this condition; but these have been superseded by the comprehensive provisions of 7 & 8 G. IV. c. 29. Minerals.]-As to minerals, 7 & 8 G. IV. c. 29, s. 37, enacts, "That if any person shall steal, or sever with intent to steal, the ore of any metal, or any lapis calaminaris, manganese, or mundick, or any wad, black cawke, or black lead, or any coal, or cannel coal, from any mine, bed, or vein thereof respectively, 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." Stealing, &c., Glass, Metal, &c. affixed to Buildings.]—As to glass, metal, &c. 7 & 8 G. IV. c. 29, s. 44, enacts, "That if any person shall steal, or rip, cut, or break, with intent to steal, any glass or wood-work belonging to any building (q) whatsoever, any lead, iron, copper, brass, or other metal, any utensil or fixture, whether made of metal or other material, respectively fixed in or to any building whatsoever, any thing made of metal fixed in any land being private property, or for a fence to any dwelling-house, garden or area, or in any square, street, or other place dedicated to public use or ornament, 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 case of any such thing fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person." (q) Including a church, R. v. Parker and Easy, 2 East's P. C. 592, post. Indictment under 7 & 8 G. IV. c. 29, s. 37, for stealing Minerals from a Mine, or severing them with intent to steal. [Venue must be where the dwelling-house, &c., is (r).] That A. B. [describing him] on, &c. with force of arms, at, &c. fifty pounds weight of copper ore [as the fact may be, taking care to bring the case within one of the descriptions in the section] of the value of twenty shillings, the property of C. D. in a certain mine of copper ore [or "black-lead, coal," &c.] of the said C. D. there situate, then and there being found, from the said mine then and there feloniously did steal, take, and carry away [or, feloniously did sever with intent the same then and there feloniously to steal, take, and carry away] against the form of the statute, &c. and against the peace, &c. Indictment for stealing Glass and Wood-work belonging to a Dwelling-house or other Building (7 & 8 G. IV. c. 29, s. 44). Venue (as in last). That A. B. late of, &c. on, &c. with force and arms, at, &c. feloniously did steal, take, and carry away, twenty panes of glass, and twenty pieces 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 (s) 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 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 (t), and then and there being fixed to a certain dwellinghouse [or, to a certain building (s) 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 (u). (r) R. v. G. Miller, 7 C. & P. 665. (8) 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 what soever;" whereas the enactment of 9 G. IV. is general, viz. “ any building whatsoever." See R. v. Blick; R. v. Worrall, post. (t) 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; however see the act itself in p. 270. (u) R. v. Gooch and Devonshire, 8 C. & P. 293, Tindal, C. J. and Vaughan, J.; R. v. Gooch, ibid. 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 (u)] 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 (x) (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 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 (u) See note (s) in preceding page. (x) 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: "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 É. 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. 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. [See the act, p. 270.] 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 baving 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 tombstone in a churchyard, is now felony, though not connected with the church by any building (y). The punishment is the same as that of simple larceny. (Which see, ante, p. 257.) 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 (z), 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 arceny (a). Statutes, have, therefore, been repeat (y) R. v. Blick, 4 C. & P. 377; BoBanquet, 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 sec tion. R. v. Worrall, 7 C. & P. 516, (z) See ante, p. 239. T edly 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 (b), or avenue, or in any ground adjoining (c) or belonging to any dwelling-house, 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 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 1s. punishable summarily for first and second Offences, third as Felony.]-By 7 & 8 G. IV. c. 29, s. 30, 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 con victed 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 (b) Whether ground be properly described in an indictment as a "garden," s a question for the jury, R. v. Hodges, M. & M. 341. (c) 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. |