State v. Tootle — 2 Del. 541

Majority

p. 541

THE STATE vs. SAMUEL TOOTLE, n.

Headnote

Evidence of stealing a lamb will support an indictment for stealing a sheep.

Tlje court will judicially take notice that Camden is in Kent county.

Kent,

October Sessions, 1837.

Indictment for stealing a sheep. Proof that the thing stolen was a lamb; and that the property was found near Camden branch.

It was objected — 1st. That the proof did not sustain the indictment, as there was a clear distinction between a lamb and a sheep; and 2d. That there was no proof of the offence having been committed within Kent county.

The English statutes 7 and 8, Geo. 4, ch. 29, makes it a felony of death to steal “ any ram, ewe, sheep or lamband it has been decided under this statute, that proof of stealing a lamb did not support an indictment for stealing a sheep. But the reason of the decision is that the statute itself distinguishes between a sheep and a lamb. If our act were the same, the decision would be the same; but it makes no such distinction, and we think the proof sustains the indictment.

2d. As to the venue, it is incumbent on the state to prove that the offence was committed within the county of Kent; but it has been decided that where the offence was charged to have been committed in Sussex county, and proved to have b.een done at Lewesiown, the court would judicially take notice that Lewestown is in Sussex county. ( 1 Harr. 326 — note.) The jury must judge as to the proof.

p. 542

If it shows the offence to have been committed at Camden or near Camden, we think they ought to take notice that Camden is in Kent county.

Wm. H. Rogers, attorney general, for state.

Frame, for defendant.

The defendant was convicted.