—
.
Part
II.
Property in Animals.
371
Sect. 2. or Yarren, unless the warren is so inclosed that the owner can take Criminal them at his will (x). Law. It has heen said [x) that to convict of larceny of a reclaimed wild animal, the animal must he known to the thief to be reclaimed. Thief must if the know animal This only amounts to a strict proof of the animus farandi thief takes it out of actual confinement, such as a pen or aviary, to be reclaimed. there can be no question that he knows it is reclaimed; if the
animal
is
merely tamed and at
large,
he
may
not have
known
it
was
a question of evidence in each case. So if a man is indicted for receiving pheasants stolen out of a coop or aviary, it is a good defence to prove that there was nothing to show that they were not wdld birds and that he took them as such.
not wild:
it is
810. The bodies of wild animals which have been killed are the subject of larceny (?/), for when such animals are found and killed they become the absolute property of the owner of the soil, even if killed by a trespasser, unless the trespasser started an animal on the land of one person, and killed it on the land of another (^). If, however, the killing and carrying away are one continuous act, an indictment for larceny does not lie, owing to the peculiarity of the law of larceny; the ownership in the animals is considered as incident to the property in the land, and severing and immediately taking away things attached to the freehold is not a felonious taking so as to amount to larceny (a). If a W'rong-doer abandons possession after killing, and returns later with a " fresh intention of taking away," this is larceny, but merely hiding his spoil in a ditch for two or three hours is not sufficient
(2)
Dead wild
{b)
811. Unlawfully and wilfully to course, hunt, snare, carry away, or kill or wound, or attempt to kill or wound, any deer kept or being in the uninclosed part of any forest, chase, or purlieu is punishable summarily before a justice with a fine not exceeding ^50, and a subsequent ofience is an indictable felony punishable with two years' imprisonment (c). The same offence committed where the deer are kept in the inclosed part of any forest, chase, or purlieu, or in any inclosed land where deer are usually kept, is a felony liable to the
same punishment
stealing deer,
(c?).
812. Other statutory offences which render the accused liable on Other conviction to a fine not exceeding £20 are, being unlawogg^^gj-^ fully in possession of deer or parts of them, or of engines or snares
summary
(x)
See note
(o),
p. 370, ante,
{y) 3 Co. Inst. 109. v. Higgs (1865), 11 H. L. Cas. 631. at p. 634, per Lord Westbury, L.C. ; JR. v. Toiunley (1870), L. E. Nor does such a taking amount to embezzlement of the animals. 1 C. C. R. 315. {R. V. Read (1878), 3 Q. B. D. 131). R. v. Toiunley, supra; R. (&) Compare R. v. Roe (1870), 11 Cox, C. C. 554 V. Fetch (1878), 14 Cox, C. C. 116; R. v. Foley (1889), L. R. 26 Ir. 299. The technical distinction in these cases does not affect the civil rights of property in the animals immediately they are killed. (c) Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 12. (ri) Ihid., s. 13. [z)
Blades
(a) Ibid.,
B B 2
