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the burglary was accompanied by violence; and that if he had been indicted for burglary with violence, since he might have been convicted of manslaughter, or even assault, on the indictment for murder, on which be had been acquitted altogether, in his opinion, that acquittal would have been an answer to the allegation of violence, if it had been inserted in the present indictment. R. v. Gould, 9 C. & P. 364, 38 E. C. L.

Indictment for being found by night armed with intent to break into any house, etc. Where persons are charged under s. 58 of the 24 & 25 Vict. c. 96, with being found by night armed with an offensive weapon with intent to break and enter into a building, the particular building must be specified in the indictment, and proof must be given of the intent to break and enter such building, and it is the safer course to charge and prove an intent to commit a specific felony. R. v. Jarrald, L. & C. 301; and see infra.

Nature of offence of having possession of implements of housebreaking. This offence consists in the possession merely without lawful excuse of the implements mentioned. It is not necessary to allege or to prove at the trial an intent to commit a felony. R. v. Bailey, 1 Dears. C. C. R. 244; 23 L. J., M. C. 13. Where only one is in possession of the implements, the possession by him is possession by all. R. v. Thompson, 11 Cox, C. C. 362 (C. C. R.).

If a man is found with an implement of housebreaking in his possession, a general burglarious intent is sufficient to constitute an offence against the second clause of the 58th section; but if he is armed with any other weapon, there must be proof of an intent to break into some particular house in order to constitute an offence *against the first branch of the 58th section. R. v. Jarrald, [*388 per Crompton, J., 1 L. & C. 306.

What are implements of housebreaking. Keys are implements of housebreaking; for though commonly used for lawful purposes, they are capable of being employed for purposes of housebreaking, and it is a question for the jury whether the person found in possession of them by night had them without lawful excuse, and with the intention of using them as implements of housebreaking. R. v. Oldham, 2 Den. C. C. R. 472; 21 L. J., M. C. 134.

The error suggested by Maule, J., in this case, as occurring in the 14 & 15 Vict. c. 19, s. 1 (repealed by 24 & 25 Vict. c. 95), namely, the omission of a comma between the words "pick-lock" and "key is not corrected in the present act, 24 & 25 Vict. c. 96, s. 58, supra, p. 359. If this was intentional, then there are no special words which make ordinary keys implements of housebreaking.

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Stealing horses, cows, sheep, etc. By the 24 & 25 Vict. c. 96, s. 10 (replacing s. 25 of the 7 & 8 Gco. 4, c 29), "whosoever shall steal any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer or calf, or any ram, ewe, sheep, or lamb, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years, and not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor. and with or without solitary confinement."

Killing animals with intent to steal the carcase, etc. By s. 11, "whosoever shall wilfully kill any animal with intent to steal the carcase, skin, or any part of the animal so killed, shall be guilty of felony, and being convicted thereof shall be liable to the same punishment as if he had been convicted of feloniously stealing the same, provided the offence of stealing the animal so killed would have amounted to felony."

Killing or maiming cattle. By the 24 & 25 Vict. c. 97, s. 40, "whosoever shall unlawfully and maliciously kill, maim, or wound any cattle, shall be guilty of felony and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen and not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."

Malice against owner unnecessary. See 24 & 25 Vict. c. 97, s. 58, supra, p. 289.

Injury by person having animals in his possession. See s. 59, supra, p. 289.

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Proof of the animal being within the statute. The word cattle, in the 24 & 25 Vict. c. 97, s. 40, would, doubtless, receive the same interpretation as it bore in the repealed statute 9 Geo. 1, c. 22, upon *which it was held that an indictment for killing a mare was [*390 good. R. v. Paty, 1 Leach, 72; 2 W. Bl. 721; 2 East, P. C. 1074. And see R. v. Tivey, post, p. 391. And so an indictment for wounding a "gelding" has been held good. R. v. Mott, '1 Leach, 73 (n). Pigs were held to be within the 9 Geo. 1, c. 22. R. v. Chapple, Russ. & Ry. 77. So also asses, R. v. Whitney, 1 Moody, C. C. 3. It is not sufficient in the indictment to charge the prisoner with maiming, etc., "cattle" generally, without specifying the description. R. v. Chalkley, Russ. & Ry. 258. Where the prisoner was indicted under the repealed statute 7 & 8 Geo. 4, c. 29, s. 25, for stealing a sheep, and the jury found that it was a lamb; the majority of the judges present, on a case reserved (six to five), held the conviction to be right. R. v. Spicer, 1 Den. C. C. 82; 1 C. & K. 699, 47 E. C. L.

And now upon any similar objection being taken, the indictment would be amended under 14 & 15 Vict. c. 100, s. 1, ante, p. 209.

Proof of the injury. Upon an indictment for maliciously wounding, it need not appear either that the animal was killed, or that the wound inflicted a permanent injury. Upon an indictment for this offence, it was proved that the prisoner had maliciously driven a nail into a horse's foot. The horse was thereby rendered useless to the owner, and continued so to the time of the trial; but the prosecutor stated that it was likely to be perfectly sound again in a short time. The prisoner being convicted, the judges, on a case reserved, held the conviction right, being of opinion that the word "wounding" did not imply a permanent injury. R. v. Haywood, Russ. & Ry. 16; 2 East, P. C. 1076. But by maiming is to be understood a permanent injury. Id. 2 East, P. C. 1077; R. v. Jeans, 1 C. & K. 539, 47 E. C. L. Where the prisoner was indicted under the repealed statute 4 Geo. 4, c. 54, for wounding a sheep, and it appeared that he had set a dog at the animal, and that the dog, by biting it, inflicted several severe wounds, Park, J., is stated to have said, "This is not an offence at common law, and is only made so by a statute; and I am of opinion that injuring a sheep, by setting a dog to worry it, is not a maiming or wounding within the meaning of that statute." R. v. Hughes, 2 C. & P. 420, 12 E. C. L. The word wound, in section 40, is to be construed according to its ordinary meaning; and injuries to a horse's tongue, apparently caused by a pull of the hand, were held to be a "wounding." Reg. v. Bullock, 37 L. J., M. C. 47; L. R. 1 C. C. R. 115. As to the construction of the word "wound," see infra, "Attempt to commit Murder." The prisoner poured a quantity of nitrous acid into the ear of a mare, some of which getting into the eye produced immediate blindness; he was convicted of maliciously maiming the mare, and the conviction was held by the judges to be right. R. v. Owen, 1 Moody, C. C. 205. The administering of poison to cattle, however malicious the

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act may be, is not a felony within the statute, unless the animal die; but the party may be indicted as for a misdemeanor. Where a man was thus indicted for administering sulphuric acid to eight horses, with intent feloniously to kill them, and it appeared that he had mixed sulphuric acid with the corn, and having done so gave each horse his feed; Park, J., held that this evidence supported the allegation in the indictment of a joint administering to all the horses. R. v. Mogg, 4 C. & P. 364, 19 E. C. L. Where the prisoner set fire to a cowhouse, and a cow in it was burned to death, Taunton, J., ruled *391] *that this was a killing of the cow within the repealed statute 7 & 8 Geo. 4, c. 30, s. 16. R. v. Haughton, 5 C. & P. 559, 24 E. C. L.

Proof of malice and intent. Under the repealed statute of 9 Geo. 1, c. 22, it was necessary to show that the act was done out of malice to the owner; but the 7 & 8 Geo. 4, c. 30, s. 25, renders it an offence, whether the act be done from malice conceived against the owner or otherwise, and the same provision is contained in the 24 & 25 Vict. c. 97, s. 58, supra, p. 289. See 2 Russ. Cri. 930, 5th ed.

On an indictment under the statute 7 & 8 Geo. 4, c. 30, s. 16 (repealed), for maliciously wounding a mare, where no malice was shown towards any one, and it did not appear that the prisoner knew to whom the mare belonged, or had any knowledge of the prosecutor, it was contended that since the statute 7 Will. 4 & 1 Vict. c. 90, s. 2 (repealed), no punishment could be enforced under the 7 & 8 Geo. 4, c. 30, s. 16, and, consequently, that the 25th section of that Act had no operation, and, therefore, that proof of malice was necessary. Patteson, J., held that it was not; and the prisoner being convicted, the judges were of opinion that the conviction was right. R. v. Tivey, 1 Denison, C. C. 63; 1 C. & K. 704, 47 E. C. L.

Although it is thus rendered unnecessary to give evidence of malice against any particular person, yet an evil intent in the prisoner must appear. Thus, in R. v. Mogg, supra, Park, J., left it to the jury to say whether the prisoner had administered the sulphuric acid (there being some evidence of a practice of that kind by grooms) with the intent imputed in the indictment, or whether he had done it under the impression that it would improve the appearance of his horses; and that in the latter case they ought to acquit him. In the same case the learned judge allowed evidence to be given of other acts of administering, to show the intent. And where the prisoner caused the death of a mare by inserting the handle of a fork into her vagina, and pushing it into her body, it was held there was sufficient malice to support an indictment under s. 40, though there was no evidence that the prisoner was actuated by ill-will towards the owner or spite towards the mare or by any motive except the gratification of his own depraved mind. The jury found that the prisoner did not in fact intend to maim, wound or kill the mare, but that knowing what he was doing would or might have that effect, he nevertheless did what he did recklessly and not caring whether the mare was in

jured or not. R. v. Welch, 1 Q. B. D. 23; 45 L. J., M. C. 17. See ante, p. 24.

Offences under the Cruelty to Animals Act (39 & 40 Vict. c. 77, passed in order to regulate vivisection) may, where the penalty which can be imposed exceeds five pounds, be prosecuted on indictment at the request of the party accused.

Drugging animals is an offence punishable on summary conviction under 39 Vict. c. 13.

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