LANCASTER Sp. Assizes, 1830.

offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same."

Upon the above provision much difference of opinion prevailed, both at the bar and among the Judges, as to the manner in which it was intended to be applied; it being understood by some that it was introduced, as well for the purpose of raising a presumption of guilt against the accused, as to enable the Court, in the event of a conviction, to pass a severe sentence upon the prisoner; while others, unable to reconcile the plain injustice of sending a prisoner to trial upon new facts, with the mind of the jury prepossessed against him, thought the Legislature could only have intended the latter.

Park, J., said, his course was not to allow the former conviction to be noticed, until the charge of felony under inquiry was disposed of. Parke, J., said he differed from him, but had agreed to adopt his practice until an opportunity should be afforded of consulting with the other Judges.

Note. At a subsequent Assizes, Parke, J., informed the BAR that the Judges had considered the subject, and agreed, that, upon the construction of the statute, the allegation of a former conviction. must be considered as a part of the indictment; that the prisoner, when called upon to plead, must plead

to it as such; and that the jury must be charged, at the outset of the inquiry, with the whole matter that they have to try.

Holmes's Case.

Indictment contained two counts-one for bur

glary, and one for larceny.

To the latter, a charge

of former conviction was appended.

Hullock, B., would not say positively that they could not be joined, but he made the counsel for the prosecution elect which he would go upon.

Hardy and Dundas were for the prosecution.

Note.-In Bland's case, Bolland, B., after consulting Denman, C. J., thought it right to act upon the authority of the above case.

Sir G. Lewin was for the prosecution.

YORK Sum. Assizes, 1828.

semble, that a

former con

viction ap

pended to a count for larceny ought

not to be joinfor burglary.

ed to a count

YORK Sum. Assizes, 1833.

GAME.

James Riley's Case.

By the 9 Geo. 4, c. 69, s. 9*, it is enacted, 9 Geo. 4, c. "That if any persons, to the number of three or In an indict

See, in reference to this clause and also sections 1 & 2,

Ball's case, 1 M. C. C. 330; Payne's case, 1 M. C. C. 378; and Warner's case, 1 M. C. C. 380; where the right of gamekeepers to apprehend poachers is considered.

69, s. 9.

ment,

under the

Night Poach

more together, shall by night unlawfully enter or be ing Act, it is in any land, whether open or inclosed, for the pur

not necessary

to aver that

defendant en

between the

first hour af

ter sunset and the first hour before sun

rise.

pose of taking or destroying game or rabbits, any tered the close of such persons being armed with any gun, crossbow, fire-arms, bludgeon, or any other offensive weapon, each and every of such persons shall be guilty of a MISDEMEANOR, and being convicted thereof before the Justices of gaol delivery, or of the Court of Great Sessions of the county or place in which the offence shall be committed, shall be liable, at the discretion of the Court, to be transported beyond seas, for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned and kept to hard labour for any term not exceeding three years*."

57 Geo. 3, c. 99, s. 1.

The 1st section of the above statute repealed the 57 Geo. 3, c. 90, (the former Night Poaching Act), which contained the following provision corresponding to the 9th section of the new act, viz.-" If any person or persons having entered into any forest, chase, park, wood, plantation, close, or other open or inclosed ground, with the intent illegally to destroy, take, or kill game or rabbits, or with the intent to aid, abet, and assist any person or persons illegally to destroy, take, or kill game or rabbits, shall be found at night, that is to say, between the hours of six in the evening and seven in the morning, from the 1st day of October to the 1st day of February, between seven in the evening and five in the morning from the 1st day of February to the 1st day of April, and between nine in the evening and four in the morning for the remainder of the year, armed with any gun,

Prisoner was charged under the above statute on the following indictment:

"Lancashire to wit:-The jurors &c. present Indictment. that James Riley, late of &c., and divers other

cross-bow, fire-arms, bludgeon, or any other offensive weapon, every such person so offending shall be adjudged guilty of a misdemeanor, &c."

In Smith's and Preston's case, under this statute, the Judges held, that where several are together, and only one of them is armed, it is sufficient to bring the case within the statute. R. & R. C. C. 368. (1818).

But, in Southern's case, they held, that, if one has arms without the knowledge of the others who are un-armed, the unarmed are not liable to be convicted. Ib. 444. (1821). See also Duffey's and Hunt's case, post, tit. "Homicide."

In Nash's and Miller's case, where the prisoners had fired off their guns, and the flash had been seen by a gamekeeper before they were themselves discovered, and, on being discovered, it appeared that they had abandoned their guns, and were creeping away upon their knees, the Judges held that they were found armed within the meaning of the statute, and that they were rightly convicted. Ib. 386. (1819).

In Owen's and Prickett's case, prisoners were charged with entering a wood called the "Old Walk." It was proved in evidence, that the wood had always been called the "Long Walk," and had never been called or known by the name of the "Old Walk." The Judges held the variance fatal. 1R. & M. 118. (1825).

In Barham's case, the indictment charged that defendant entered a particular close, with intent then and there illegally to destroy game, and was found in the close aforesaid armed

persons to the number of seven together, to the jurors aforesaid unknown, did by night, about the hour of twelve of the clock, on the 5th day of December, in the tenth year &c., at the township of Hurrcoat, in the parish of Whalley, in the said county, unlawfully enter a certain close of land there situate, belonging to Peregrine Edmund Townley, Esq., for the purpose of taking game there, armed with a gun, against the form of the statute, &c."

Starkie, for the prisoner, objected, that the indictment was insufficient, inasmuch as there was no specific allegation that the prisoner entered the close in question between the expiration of the first hour after sunset, and the beginning of the last hour be

with a gun, &c. Upon the evidence, it appeared that he was found in a hop-ground adjoining. The Judges held the conviction wrong, inasmuch as the entry with intent to kill game was confined by the indictment to the close specified; it was therefore necessary to prove the intent as to that close. Ib. 151. (1826).

But, in Charles Worker's case, the defendant was charged with having entered a wood called Kingshoe Spinney, with intent, &c. The gamekeeper saw three flashes in the wood, and heard nine reports. The prisoner was soon after seen in a close adjoining the wood. The Judges held, that, as there was evidence to satisfy the jury he had been in the wood armed, or was one of a party who had been so, it was sufficient, and that the conviction was right. Ib. 165. (1827).