74 Mass. 497 | Mass. | 1857
The reasons assigned for the motion in arrest of judgment are wholly insufficient.
1. The signature of the district attorney, if it be necessary that it should be affixed, in any form, to an indictment, was properly affixed in this instance. The Rev. Sts. c. 13, § 39, authorize district attorneys to interchange the duties of their offices. Of course it is not necessary that it should appear, on an indictment, that he who certifies or attests it is the attorney for the district in which it is found.
2. Peacocks are among the domestic fowls which are the subject of larceny. 1 Hawk. c. 33, § 43. 2 East P. C. 607. 2 Russell on Crimes, (7th Amer. ed.) 82.
3. We are of opinion that the jury should have been instructed, as the defendants requested, “that if the said fowls were alive when originally taken from the possession of the owner in Connecticut, and were killed before being brought into this state, the defendants could not be convicted of stealing them in this state.” The true legal reason for this instruction is stated in the prayer therefor. The law on this point is thus stated in the books: An indictment for a larceny of live animals need not state them to be alive, because the law will presume them to be so, unless the contrary be stated; but if, when stolen, the animals were dead, that fact must be stated ; for, as the law would otherwise presume them to be alive, the variance would be fatal. Archb. Crim. Pl. (10th ed.) 171; (13th ed.) 49, 264. Rosc. Crim. Ev. (2d ed.) 577. 2 Deacon Crim. Law, 763. 3 Greenl. Ev. § 163. 2 East P. C. 607. Rex v. Halloway, 1 Car. & P. 128. Rex v. Edwards & Walker, Russ. & Ry. 497. In this last case, the defendants stole two turkeys in the county of Cambridge, killed them there, and then carried them into the county of Hertford, where the defendants were indicted for the larceny. The indictment charged them with stealing two live turkeys; and it was held that the word “ live ” could not be rejected as surplusage, and that, as the defendants had not the turkeys in a live state in the county of Hertford, the charge, as
It was suggested by the counsel for the Commonwealth, that the rule of law on which the defendants rely, and which the court deem conclusive, is not applicable to this case; that “ when an animal has the same appellation, whether it be alive or dead,” (-which is true of peacocks and turkeys,) “ and it makes no difference, as to the charge, whether it be alive or dead, it may be called, in an indictment, when dead, by the appellation applicable to it when alive.” And, in several modern English books, the rule is stated in the terms above quoted. But they all refer to the case of Rex v. Puckering, 1 Moody, 242, and 1 Lewin, 302. If that case, which was an indictment against a receiver and not against the thief, and the reports of which differ in some particulars, can be justly considered to support any distinction between animals that have the same appellation when dead and when alive, and other animals; we do not incline, on the authority of that case alone, to depart from what we have always supposed to be the legal meaning of an indictment -charging the theft of an animal, without alleging it to be alive; namely, that it means a live animal.
Exceptions sustained.