State v. Tootle

Superior Court of Delaware

State v. Tootle

2 Del. 541

DecidedOctober 5, 1837

StatusPublished

This text of 2 Del. 541 (State v. Tootle) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Tootle, 2 Del. 541 (Del. Ct. App. 1837).

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Opinion

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

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 statute 7 and 8, Geo. 4;ch. 29, makes it a felony of death to steal "any ram, ewe, sheep or lamb;" and 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 been done at Lewestown, the court would judicially take notice that Lewestown is in Sussex county. (1Harr. 326 — note.) The jury must judge as to the proof. *Page 542 If it shows the offence to have been committed at Camden or near Camden, we think they ought to take notice that Caraden is in Kent county.

The defendant was convicted.

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

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 statute 7 and 8, Geo. 4;ch. 29, makes it a felony of death to steal "any ram, ewe, sheep or lamb;" and 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 been done at Lewestown, the court would judicially take notice that Lewestown is in Sussex county. (1Harr. 326 — note.) The jury must judge as to the proof. *Page 542 If it shows the offence to have been committed at Camden or near Camden, we think they ought to take notice that Caraden is in Kent county.

The defendant was convicted.

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Bluebook (online)

2 Del. 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tootle-delsuperct-1837.