Scottish Court of Session Decisions

John M'Connell was charged with the crime of sheep-stealing under the following indictment, viz.:—“That albeit, by the laws of this and of every other well-governed realm, theft, particularly sheep-stealing, is a crime of an heinous nature, and severely punishable: Yet true it is and of verity, that you the said John M'Connell are guilty of the said crime, actor, or art and part: in so far as, on the 11th day of November 1869, or on one or other of the days of that month, or of October immediately preceding, from or near a field called or known by the name of ‘Barlaugh Park,’ forming part of the farm of Drumore, in the parish of Kirkmichael, and county of Ayr, then and now or lately occupied by Patrick Wyllie, farmer, then and now or lately residing at Drumore aforesaid, or from some other part or parts of said farm, or from some part of the farm of Barlaugh, in the parish of Maybole, and county aforesaid, to the prosecutor unknown, or at or near to the village of Dailly, in the parish of Dailly, and county aforesaid, you the said John M'Connell did, wickedly and feloniously, steal and theftuously away take four or thereby sheep, the property or in the lawful possession of the said Patrick Wyllie.”

Evidence was led by the Crown to the following effect. M'Connel, who was a cattle-drover, was employed by his master to go to the farm of Barlaugh and drive from it 117 sheep, the property of his master, and which had been grazing there. He arrived at Barlaugh; and the sheep having been counted, were delivered over to him. The accused did not count the sheep at the time they were handed over to him; and it did not appear from the evidence at what time he discovered that instead of 117 sheep he had received 121. It was proved, however, that he had delivered to his master only 117 sheep, and that he had appropriated the other four to himself, and sold them.

At the conclusion of the evidence,

Buntine moved, on the authority of the case of H.M. Adv. v. Douglas, H. C., Jan. 23, 1865, 37 Jur. 354, that the case should be withdrawn from the Jury, on the ground that the prosecutor had not proved the species of crime which he had charged in the indictment. The prosecutor had libelled “theft” simply, while he had attempted to prove the prisoner guilty of a very peculiar kind of theft, viz., the felonious appropriation of strayed sheep, or the felonious appropriation of sheep which had been intrusted to him for a specific purpose, either by mistake or design. If the prosecutor had intended to prove that species of theft, it was his duty to have made more specific allegations in the indictment.