William Oldnall Russell.

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.TA/.



TREATISE



ON



CRIMES AND MISDEMEANORS



BY SIR WILLIAM OLDNALL RUSSELL, KNT.,

LATE CHIEF JUSTICE OF BENGAL.



BY CHARLES SPRENGEL GREAVES, ESQ.

OF Lincoln's inn, and the inner temple;

EAHRISTER AT LAW;
AND A MAGISTRATE FOR THE COUNTY OP STAFFORD.



^tk\\\h ^mnmw, from Ijic tijitii f onbit (irMtinn,

WITH THE NOTES AND REFERENCES CONTAINED IN THE FORMER AMERICAN EDITIONS

BY DANIEL DAVIS AND THEEON METCALF, ESQIIS.,

AND WITH ADDITIONAL NOTES AND REFERENCES,

BY GEORGE SHAl^SWOOD.



IN TAVO VOLUMES.
VOLUME IL

PHILADELPHIA:
T. & J. W. JOHNSON, LAW BOOKSELLERS,

No. 19T CHESTNUT STREET.
1853.



Entered according to the Act of Congress, in the year 1853, by

T. & J. W. JOHNSON, LAW BOOKSELLERS,

Li the Clerk's Office of the District Court for the Eastern District of Pennsylvania.



r



KITE & WALTON, PRINTERS,
NO. 3, RANSTEAD PLACE.




TAELE OF CONTENTS



SECOND VOLUME.



BOOK IV.



OF OFFENCES AGAINST PROPERTY, PUBLIC OR PRIVATE.



CHAP.

IX.
X.

XI.

XII.
XIII.
XIV.

XV.



XVI.



XVII.

XVIII.

XIX.

XX.

XXI.



XXII.
XXIII.

XXIV.
XXV.



Of Larceny ......

Of Stealing from the Person ....

Of stealing Horses, Cows and Sheep
Of stealing and destroying Deer
Of taking or killing Hares or Conies in a Warren, &c.
Of unlawful taking or attempting to take Fish .
Of stealing in any vessel in Port, or upon any navigable river,
&c., or in any creek, &c. And of plundering shipwrecked
vessels ......

Of larceny by servants, and Persons who have the Custody as

Servants, and not the legal Possession
Of Embezzlement by Clerks and Servants .
Of Embezzlement by Brokers, Factors, and other Agents
Of Embezzlements of minor importance
Of Embezzlement by officers and Servants of the Bank of

England, and by Public Officers
Of Larceny and Embezzlement by Persons in the Post Office ;
of stealing Letters; and of secreting Bags or Mails of
Letters ......

Of Larceny and Embezzlement of Naval and Military Stores
Of Larceny of Cloth, and other articles in a Process of Manu-
facture ......

Of Larceny by Tenants and Lodgers

Of Embezzlements and Frauds by Bankrupts



1

132
134
142
145
147



150

153
1G7
192
197

199



205
222

224

226

228




7



IV TABLE OF CONTENTS TO VOL. II.

CnAP. , PAGE

XXVI. Of Embezzlement and Frauds by Insolvent Debtors . 235

XXVII. Of receiving stolen Goods .... 237
XXVIII. Of taking a Reward for helping to the Discovery of stolen

Property . . . . .254

XXIX. Of unlavffully receiving or baving possession of Public Stores 257
XXX. Of unlawfully receiving Tackle or Goods cut from or left by

Ships; and of receiving Goods stolen on the River Thames 270

XXXI. Of Cheats, Frauds, False Tokens, and False Pretences . 274

XXXII. Of Forgery . . . . . .818

XXXIII. Of the forging, altering, &c., of Records and Judicial Process 414

XXXIV. Of Forgeries relating to the Public Funds, and the Stocks of

Public Companies ..... 417

XXXV. Of forging the Securities of the Bank of England . . 424

XXXVI. Of forging the Securities of other Public Companies . 433

XXXVII. Of forging and transposing Stamps . . . 435

XXXVIII. Of the Forgery of Official Papers, Securities and Documents 459

XXXIX. Of the Forgery of Private Papers, Securities, and Documents 495

XL. Of falsely personating another . . . 539

XLI. Of malicious Injuries to Property . . . 544

XLII. Of Arson and the burning of Buildings, Mines, Ships, Corn,

Trees, &c. . . . . . .548

XLIII. Of maiming and killing Cattle .... 569

XLIV. Of injuring and destroying Trees, Shrubs, or Underwood . 574
XLV. Of destroying, &c., Plants, Roots, Fruits, and Vegetable Pro-
ductions ...... 576

XLVI. Of cutting and destroying Hop-binds . . . 577
XLVII. Of Breaking, &c., Sea Banks, Locks, and Works, on Rivers,

Canals, &c. ...... 578

XLVIII. Of destroying the Dams of Fish-Ponds, &c., Mill-Ponds, and

of putting noxious materials into Fish-Ponds, &c. . 579
XLIX. Of destroying or injuring Bridges, Turnpike-Gates, &c. . 580
L. Of destroying Fences, Walls, Stiles, or Gates . . 582
LI. Of the destroying and damaging Mines and Mine-Engines . 583
LII. Of destroying and damaging Articles in a Course of Manufac-
ture, and of destroying, &c.. Implements and Machinery 585
LIII. Of destroying and damaging Ships and other Vessels, and Arti-
cles thereunto belonging .... 591

LIV. Of wilful or malicious Damage to Real or Personal Property,

not otherwise provided for ... • 595



TABLE OF CONTENTS TO VOL. 11.



BOOK V.

OF OFFENCES WIIICU MAY AFFECT THE PERSONS OF INDIVIDUALS OR

rKOrEKTY.

CUAI'. PAOB

I. Of Property and Subornation of Perjury .... 696

II. Of Conspiracy ...... 674

III. Of Threats and Threatening Letters .... 706



BOOK VI.

OF EVIDENCE.

CHAP. PAGR

I. Of what nature Evidence must be. Of Presumptive Evidence. Of
the rule that the best possible Evidence must be produced, — and
of Hearsay Evidence ...... 725

II. Of the proof of negative Averments. The Rule that the evidence
must be confined to the point in issue. What allegations must be
proved, and what may be rejected; and therewith of Surplusage
and Variance ....... 769

III. Of Written Evidence ..... 804

IV. Of Confessions and Admissions. Of Examinations before Magistrates,

and of Depositions ...... 824

Y. Of Witnesses. What facts Witnesses may disclose, and what arc
Privileged Communications. How witnesses are to be Examined.
How the Credit of Witnesses may be Impeached. How many Wit-
nesses are sufficient. How the Attendance of Witnesses is to be
compelled and remunerated. Of Accomplices. And what witnesses
are competent to give Evidence . . . . . 902



TREATISE



ON



CKIMES AND MISDEMEANORS.



BOOK THE FOURTH.



CHAPTER THE NINTH.

OF LARCENY, (a)

We may now consider of the offence called larceny, a word formed
by contraction, or rather, as it has been said, by abuse, from latrociny,
latrocinium, and used to signify the violation of the property of an-
other by theft, where the property is not taken from the house, curti-
lage, &c., or the person of the owner, under such circumstances of
aggravation as have been noticed in the preceding chapters of this

(A) Massachusetts. — In an indictment for larceny and shop-breaking, proof that part of
the goods stolen were found in the possession of the defendant, is prima facie evidence that
he is guilty of the whole charge in the indictment ; not only that he stole the whole of the
articles taken from the shop, but also of his breaking and entering as alleged in the indict-
ment ; unless the defendant give some reasonable account how ho came by the goods.
Commonwealth v. Millard, 1 Mass. Rep. 6.

In the case of the Commonwealth v. Trimmer, 1 Mass. Rep. 4Y6, it was decided that a
feme-covert is not chargeable lur a larceny jointly with her husband. And in the same case,
that removing a idank which is loose, and is not fixed to the freehold in a partition wall of
a building, is not a breaking within the statute. It appeared also in this case, that the
goods stolen were the joint property of Haley and one Emery, — and that in the indictment
they were alleged to bo the property of Haley only, whereupon SedgAvick, J. said, if the
cause proceeded, there must be an acquittal, as a conviction upon this indictment would be
no bar to another prosecution. The defendants consenting to an amendment of the indict-
ment, the cause proceeded.

In the case of the Commonwealth ?'. Brown, 4 Mas?. Rep. 580, it was ruled that if one, to
whom a wagon load of goods consisting of several packages, is delivered to l)e transported
from one place to another, fraudulently take away one of the packages, such taking is felony.
And per Parsons, C. J., "I am of opinion, admitting the defendant to be a common carrier,
and thus to have had a lawful custody of the goods, j-et all the goods in the wagon were
delivered to him as one mass or body, and his taking away one of the packages, was a
separating of a part from the whole, and thus was determined the supposed jirivifj- of con-
tract;, for the extract with him was not to carry the several packages of which the load
was composed, but to carry the load in the state in which it was delivered to him.

"I have thus far considered the defendant a common carrier, having a special property in,
and a lawful possession of, the wagon load. Bat he was not a common carrier, but a mere



OF LARCENY, [BOOK IV.



book. Formorly there was a distinction of this offence into grand lar-
ceny and jictit hxrccny, the offence being grand larceny when the value
of the property taken was above twelve-pence, and petit larceny, when

servant to drive the team of a common carrier. It would be extremely mischievous to have
it understood that every driver of a team, employed to drive the team of a common carrier,
had a special property in the load, so that if he drives elsewhere than he was engaged to
drive, and takes the whole load, he will be charged for au unlawful conversion only, and
not for felony."

Stealing goods in one state, and conveying the stolen goods into another state, is similar
to stealing in one county and conveying them into another, which was always holden to be
felony in both counties. Commonwealth v. Cullins, 1 Mass. Rep 116. The same point was
decided upon full argument in the case of the Commonwealth v. Andrews, 2 Mass. Rep. 14,
and in Lord's case, York, June term, 1792. — quoted in Andrew's case.

Vkumo.nt. — A bailee of goods who has the qualified possession of them, is guilty of lar-
ceny in privately eloigning and converting them to his own use. The State v. White, 2
Tyler's Rep. 352. See also the State v. Jenkins, Ibid. STS, and The State v. Smith, Ibid. 272.

South Carolina. — In the case of the State v. Wood, 1 South Carolina Rep. 29, it was
ruled, that on an indictment for grand larceny, the jury may find petit larceny. Cheves, J.,
said, " he had been informed by his brethren that the objection (that the indictment being
for grand larceny the verdict for petit larceny was unauthorized) had been often overruled,"
and cited 2 East, P. C. p. 778, where it is expressly so laid down.

Tennessee. — An indictment in the county court for petit larceny, in stealing goods of
greater value than twelve-pence, should conclude against the form of the statute. The se-
cond section of the act of 1807 has changed the nature of the offence of petit larceny, viz ;
that petit larceny, shall consist in stealing property under the value of ten dollars. At
common law it consisted in stealing property under the value of twelve-pence. Since the
act, the county court possesses jurisdiction of the offence, which should appear by the in-
dictment. 1 Overton's Rep. 107. The State v. Humphries.

In the case of The State v. France, 1 Overton's Rep. 434, it was doubted whether, if a
person be indicted for stealing the goods of Harris, it be sufficient to prove that the owner's
name was Harrison, but that he was sometimes called Harris. In the same case it is said,
that in every case affecting life or limb, the accused must not only be present when the evi-
dence is given in, but during the trial, and on the return of the verdict. — J^^This is not
the practice in Massachusetts as to the latter circumstance, viz., on the return of the verdict ;
— cases have frequently occurred, where the prisoner, having been present during the trial,
and being under recognizance, absconded while the jury were deliberating, and before they
returned into court with their verdict. In such cases the court in that state have proceeded
to default the prisoner upon his recognizance, and then take the verdict of the jury. If
they pronounce him guilty, a capias issues, and he is brought in to receive sentence. Those
cases usually happening at nisi priuf;, are not reported ; three cases, however, are collected,
viz. Commonwealth c. Cilley, for a conspiracy, in Kennebec; Commonwealth v. Otis, for for-
gery, in Middlesex ; and Commonwealth i\ Cochrane, for adultery, in York. — Editor.

Pennsylvania. — An indictment for stealing bank notes generally, under the description of
promissory notes for the payment of money, is bad. It should appear on the face of the
indictment that they are bank notes of some incorporated bank, or in some way that they
are lawful notes, no notes of unincorporated banks in Pennsylvania being at present the
subject of larceny. Under the act of 30th January, and 19th March, 1810, (5 Smith's Laws,
81, 108,) the notes of unincorporated banks are not the subject of larceny. Spangier v.
Commonwealth, 3 Binn. 533. Larceny of one bill, or obligation, is within the provision of
section 5, of the act of 5th April, 1790, (2 Smith's Laws, 53,) which declares that larceny
of bills obligatory, &c., shall be punished in the same way as larceny of any goods or chat-
tels. Commonwealth v. Messenger & al., 1 Binn. 273. In which cases and, upon this point
were cited Plowd. 86. 2 H. H. P. C. 305. 2 East, C. L. 598. 1 Leach, 1 S. C. Duhitatur in
S. C. 4 Yeates, 69, Respub. v. Cleaver & al.

So long as wild bees remain in the tree where they have hived, notwithstanding the tree
is upon the land of an individual, and he has coufiued them in it, they are not the subject
of a felony. They are ferce. naturcc, and the taking of them has been considered as a spe-
cies of hunting. Wallis w.. Mease, 3 Binn. 546.

In the case of Pennsj-lvania v. Bacomb & al., Addis. 386, it was decided that taking deer-
skins hung up in the woods at an Indian hunting camp, may be larceny, though the skins
were not in the possession of any one at the time of taking.

As to the indictment and evidence in larceny, the following cases have occurred in
Pennsylvania; an indictment for stealing two ten dollar notes of the President, Directors,
and Company of the United States Bank, &c., is bad. They should be laid to be promis-
sory notes for the payment of money. Commonwealth v. Bower, 1 Binn. 201. — (See a contrary
decision, 1 Mass. Rep. 337, Commonwealth v. Richards.) See Spangier v. Commonwealth, 3
Binn. 533, and Commonwealth v. M'Dowell, 1 Browne, 360.

An indictment, charging that the defendant feloniously did steal, take, and carry away,



CHAP. IX.] OF LAllCKNY.



the value was only twelve-pence, or under that sunQ.(«) But the late
statute 7 & 8 Geo. 4, c. 20, s. 2, enacts, " tliat the distinction between
grand larceny and petty larceny shall be abolished, and every larceny,

(a) Stat. West. 1, (."J K(hv. 1,) c. 15. Tliis st.ilulc made reiruliilions as to sucl> oftcndcrs
as were to Ijc maini)ern:il)le, iiiid mentions larceny as of two kinds, namely j^rand and petit
— grand larceny, when the tiling stolen was above the value of twelve-pence ; and petit
larceny, when of value of twelve-pence, or under.

sundry promissory notes for the payment of money, of the value of ei<fhty dollars, of the
goods and chattels of the said A. H., is too vajjue and uncertain ; the notes should be more
particularly described, and it should l)e set forth that the money was unjmid on thern.
Stewart r. (Commonwealth, 4 Scri^. & llawle, 1!)4.

New Jkusey. — If one takes tlie goods of another out of the place wlicrc they are put ;
for instance out of a trunk, and la_ys them on the floor, and is surprised and detected Ijeforc
he goes olf, this is larceny. J'er Kinsey, C. J., in The State v. Wilson, 1 Cox's Hep. 441.

New Yokk. — Taking away a letter from another, which is of no intrinsic value, nor im-
porting any property in possession of the person from whom it was taken, is not larceny, or
any criminal otl'ence. A bond, bill, or note, was not the subject of larceny at common law;
and they certainly had as much value in tliemselves, as a letter of this discripti(-n ; (1 Hawk.
c. 33, s. 22.) The carrying away of such a letter, is therefore, neither a '• petit larceny,
misdemeanor, breach of the peace, or other criminal offence." Payne w. The People, G Johns.
Rep. 103.

In the case of the People v. Ilolbrook, 13 Johns. Rep. 90, the defendant was indicted for
stealing " four promissory notes, commonly called bank notes, given for the sum of fifty
dollars each, by the ilechanics Bank in the city of New York, which were then and there
due and unpaid, of the value of two hundred dollars, &c., the goods and chattels of Pelcg
Clark, then and there being found," &c. On the trial of this indictment, it was held, that
under the statute (1 N. R. L. 174, Sess. 24. Ch. 88.) parol evidcnne of the contents of the
bills or notes stolen, is admissible, without accounting for tlieir non-j)roduction. In trover,
no notice to produce the thing sued for is necessary. 1 Camp. N. P. Cas. 143. 3 15os. &
Pul. 143. 14 East, 2T4. The notes being suppo.sed to be in the hands of the defendant, of
which he is apprised by the indictment, he can produce them if necessarj', to falsify the
proof against him.

It was also decided in this case, that the notes were sufficiently set forth in the indict-
ment. They being in the hands of the defendant, it was impracticable to state them in
h(Bc verba. A general description is all that is required in (rover. Milne's case, (2 East, G. L.
G02,) warrants this indictment. The court says, "it is true that in Craven's case, (2 East,
fiOl, wliere the question again arose,) it was determined differently by all the judges; but
we think the former decision more reasonable and sound."

It was also held in this case, that the allegation that the notes were the goods and chat-
tels of Peleg Clark, was sufficient, witliout saying that they were the jjroperty of P. C.
The word '■^ chattels " denotes property and ownership. The statute (1 R. L. 174) enacts
" that if any person shall steal, &c., any bill of exchange, bond, order, warrant, bill or
promissory note for the payment of money, &c., being the property of any other person, &c.,
it shall be deemed and construed to be felony, of tlie same nature and of the same degree,
and in the same manner, as it would have been if the offender had stolen, &c., any other
goods of the like value with the money due on such bill, &c.. or secured thereby and re-
maining unsatisfied ; and such offender shall suffer such punisiiment as he, &c., ought to
liave done, if such offender had stolen, &c., other goods of the like value as aforesaid."
See the case of Sadi v. Morris, (2 East, C. L. 74!),) in whicli a majority of the judges held it
to be improper to lay bank notes to be chattels; and tlie opinion of dissenting judges in
that case. And East's opinion that the case of Sadi v. Morris, was shaken by the resolution
of all the judges in Dean's case, (2 East, C. L. 646,) and other cases, wherein l)ank notes by
the operation of the statute of 2 Geo. 11., were holden to be within the statute of Anne,
against stealing money, goods, &c. See also 2 Bla. Com. 38.5, as to the meaning of the
word "chattel." Tiie result of the opinion of the court in this case, was "that, since the
statute, it is sufficient to lay in an indictment, that the notes or instruments mentioned in
the statute, arc the goods and chattels of any i)orson who is entitled to tiiein. And that
the word cliattels, as applied in this case, denotes and signifies [troperty and ownership."
13 Johns. Re]). 94. Tlie court intimated a decided opinion in this case, that a bill of ex-
ceptions would not lie in criminal cases. See 1 Gaines's Rep. 37, as to the jurisdiction of the
Court of Sessi(ms for a second offence of grand larceny.

A bona fide finder of an article lost, as a trunk containing goods lost from a stage-coacb,
and found on the highway, is not guilty of larceny by any subsequent act in secreting or
approjiriating to his own use, the article found. "To constitute larceny, the possession of
the goods must have been originally acquired, animo farnndi. An intention afterwards
formed, of converting them to the party's own use, is not felonious. The People v. Ander-
son, 14 Johns. 294. In support of these positions, were cited Butler's case, 28 Eliz, 3 Inst



OF LARCENY. [BOOK IV.



■whatever be the value of the property stolen, shall be deemed to be of
the some nature, and shall be subject to the same incidents in all re-
spects as grand larceny was before the commencement of this act; and
every court whose power as to the trial of larceny was before the com-
mencement of this act limited to petty larceny, shall have power to try
every case of larceny, the punishment of which cannot exceed the
punishment hereinafter mentioned for simple larceny, and also to try
all accessories to such larceny."
Pnnish- By sec. 3, " every person convicted of simple larceny, or of any

monts for f^Jony hereby made punishable like simple larceny, shall (except in the
.!cny. cases *hereinafter otherwise provided for) be liable, at the discretion of

*2 tbe court, to be transported beyond the seas for the term of seven
years, or to be imprisoned for any term not exceeding two 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
fourth section contains a general enactment with regard to the place
and mode of imprisonment for all indictable offences punishable under
the act, by which the court is empowered to sentence the offender to
be imprisoned, or to be imprisoned and kept to hard labour in the com-
mon gaol or house of correction, and also to direct that the offender
shall be kept in solitary confinement for the whole or any portion or por-
tions of such imprisonment, or of such imprisonment with hard labour,
as to the court in its discretion may seem meet.(o)
Punish- This statute also contains (s. 61) general provision for the punish-

ment of ment of principals in the second degree and accessories. It enacts,
inThe^se- " that in the case of every felony punishable under this act, every prin-



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