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gun could not be ascertained. The point was therefore saved,
whether either of these two could be found guilty: but, upon the
case reserved, the Judges were clear that, if any one of the party
was armed, every one of the party was within the act; and the
conviction of all these was held right. (a) But if several are out
together, and one has arms without the knowledge of the others,
the others are not liable to be convicted under this act. Johnson
and Southern went into a close in the night to kill game; Johnson
had a loaded pistol, but Southern did not know it: and, upon a case
reserved, the Judges thought Southern not liable to be convicted
under the act. (b) Perceiving a person fire is finding him armed,
though his person is not seen at the time: and it is no answer to
a charge under the act, that the parties put down their arms, and
left them before they were seen, if it was perceived that some one
was there armed before they were seen. A keeper heard a gun
fired in a wood, and called to his man to watch : the persons in
the wood immediately abandoned their guns, and had crept away
two hundred yards from them, when the keeper and his man dis-
covered and seized them. A case was reserved upon the question,
whether they could be considered as found armed when they had got
to so great a distance from their guns before they were discovered:
and the Judges (eleven) held that they were, and that they were
rightly convicted.(c)

The indictment upon this statute for having entered into a forest,
chase, &c. and being found armed in the night, must in some way
or other particularize the place; for the defendant has a right to
know to what specific place the evidence is to be directed: and
stating that in the parish of A. the party entered into a certain close
there is not sufficient. The first count of an indictment stated,
that the defendant, at the parish of Whitford, in the county of
Northumberland, having entered into a certain close there situate

, with intent there illegally to kill game, was there found at night armed with a certain gun; and the second count charged him in like manner with having entered into a certain inclosed ground: but neither the close nor the inclosed ground were described by name, own

wnership, occupation, or abuttals. And upon a case reserved, Abbott, Č.J., Holroyd, J., and Park, J., thought any such description unnecessary: but Burrough, J., Garrow, B., Best

, J., Hullock, B., and Bayley, J., thought otherwise, because there was substantially a local offence, and the defendant was entitled to know to what specific place the evidence was to be directed; and judgment was arrested. (d)

A person convicted under this statute of 57 Geo. 3. of being found armed in the night in a forest, chase, park, wood, or plantation, may be sentenced to hard labour by 3 Geo. 4. c. 114. ; for all these places are either open or inclosed ground. (e) That statute enacts, that whenever any person shall be convicted of (amongst

Indictment.

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Punishment.

the take

(@) Rex v. Smith, Mich. T. 1818. Bayley, J. Russ. and Ry. 386.
MS. Bayley, J. and Russ. and Ry, 368.

(d) Rex v. Ridley, Trin. T. 1823.
(6) Rex v. Southern, East. T. 1821. Russ. and Ry. 515.
MS. Bayley, J. Russ. and Ry. 444.

(e) Rex v. Pankhurst, Hil. T. 1823.
(c) Rex v. Nash, East. T. 1819. MS. Russ, and Ry. 503.

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many other offences specified) having entered any open or inclosed
ground, with intent there illegally to destroy, take, or kill, game
or rabbits, or with intent to aid, abet, and assist, any person or
persons illegally to destroy, take, or kill, game or rabbits, and
having been there found at night armed with any

offensive

weapon, it shall and may be lawful for the court, before which any such offender shall be convicted, or which by law is authorized to pass sentence upon any such offender, to award and order (if such court shall think fit) sentence of imprisonment, with hard labour, for any term not exceeding the term for which such court may now imprison for such offence, either in addition to, or in lieu of, any other punishment which may be inflicted on any such offender, by any law in force before the passing of this act.

The second section of the 57 Geo. 3. c. 90. enacts, that, for the 57 Geo. 3. more easy and speedy bringing the offenders against this act to c. 90. s. 2.justice, it shall be lawful for the rangers, owners, and occupiers, keepers, &c. of any such forest, chase, park, wood, plantation, close, or other may appreopen or inclosed ground, and also for their keepers, servants, and hendoffenders, for

any other persons, to seize and apprehend, or to assist in seizing them to a and apprehending offenders by virtue of this act, and to convey peace oficer. and deliver such offenders into the custody of a peace officer, who is hereby authorized and directed to convey them before a justice of the peace for the county or place where such offence shall be alleged to have been committed; or, in case such offenders shall And a justice not be so apprehended, any such justice may, on information before of peace, on

information, him on the oath of any credible witness or witnesses, issue his

&c. may, in warrant for the apprehension of them; and if, upon the apprehen- default of sion of any such offenders, it shall appear to such justice, on the bail, commit oath of any credible witness or witnesses, that the persons so sessions, or charged have been guilty of the crime of being found armed at gaol delivery: night as aforesaid, such justice may admit them to bail, and in default of bail, commit them to the county gaol, until the next general quarter sessions of the peace, or the next general commission of gaol delivery, for the same county or place, there to be tried and dealt with as by this act is directed; and if in Scotland, And if in Scotuntil the persons 30 charged shall be dealt with as any persons land, until the charged with a transportable offence may be dealt with according with according to the law and practice of Scotland. But

persons unarmed, going out by night for the destruction of Scotland. game, are not liable to such serious punishments; this statute 57 Geo. 3. being more mild in its enactments than one which was passed in the preceding year. (f). With respect to such persons unlawfully in any forest entering into, or being found in, any forest, &c. or other open or &c. at night, inclosed ground at night, (according to the former provisions of &c. for dethe act as to what shall be deemed night for these purposes,) hav- stroying game, ing any net, engine, or other instrument, for the purpose, and with may be taken

before a justhe intent to destroy, take, or kill, or who shall wilfully destroy, tice. take, or kill game, it enacts, that the rangers, owners, and occu

to the law of

c. 90. s. 3.Persons found

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(f) The 56 Geo. 3. c. 130. which subject, 39 and 40 Geo. 3. c. 50., is also
is repealed hy this statute, s. 4.; and repealed.
by s. 5. a former statute on the same

2 E 2

piers, of any such forest, &c. or other open or inclosed ground, and also their keepers, servants, and any other persons, may seize and apprehend, or assist in seizing and apprehending such offenders, and convey and deliver them into the custody of a peace officer, who is to convey such offenders before a justice of the peace for the county or place where the offence shall be alleged to have been committed, to be dealt with according to law. (g).

(g) 57 Geo. 3. c. 90. s. 3. For the such offenders, see 2 Buro. Just. tit. different modes of proceeding against Game.

BOOK THE THIRD,

OF

OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

CHAPTER THE FIRST

OF MURDER.

Ma

eco

MURDER is the killing any person under the King's peace, with Definition of

the crime.malice prepense or aforethought, either express or implied by law.(a) Of this description the malice prepense, malitia præcogitata, is the gitata, or machief characteristic, the grand criterion by which murder is to be lice prepense. distinguished from any other species of homicide ; (6) and it will therefore be necessary to inquire concerning the cases in which such malice has been held to exist. It should, however, be observed, that when the law makes use of the term malice aforethought as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief. (c) And in general any formed design of doing mischief may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed; but also, in many other cases, such killing as is accompanied with circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. (d)

Malice may be either express or implied by law. Express Malice may be malice is, when one person kills another with a sedate deliberate either express mind and formed design : such formed design being evidenced by or i external circumstances, discovering the inward intention; as lying

(a) 8 Inst. 47, 51. Hale 424, 448, (0) 4 Blac. Com. 198. Gastineaux's 449. I Hawk. P. C. c. 31. s. 3. Kely. case, I Leach 417. 127. Fost. 256. 2 Lord Raym. 1487. (c) Fost. 256, 262. 4 Blac. Com. 198. i East. P. C. c. 5. (d) i Hawk. P.C. c. 31. s. 18. Fost. S. 2. p. 214.

257. i Hale 451 to 454.

ma

app

tior

SUC the als pro may or pur of € par oth afte mu cati mal fres dea tect and fall

in wait, antecedent menaces, former grudges, and concerted
schemes to do the party some bodily harm. (e) And inalice is im-
plied by law from any deliberate cruel act committed by one person
against another, however sudden :-(f) thus where a man kills an-
other suddenly without any, or without a considerable provocation,
the law implies malice ; for no person, unless of an abandoned
heart, would be guilty of such an act upon a slight or no apparent
cause.(8) So if a man wilfully poisons another; in such a deli-
berate act the law presumes malice, though no particular enmity
can be proved. (h) And where one is killed in consequence of
such a wilful act as shews the person by whom it is committed to
be an enemy to all mankind, the law will infer a general malice
from such depraved inclination to mischief. (i) And it should be
observed as a general rule, that all homicide is presumed to be

(e) i Hale 451. 4 Blac. Com. 199. importing directly wickedness, and
(f) i East. P. C. c. 5. s. 2. p. 215. excluding a just cause or excuse. Thus
(g) 4 Blac. Com. 200.

Lord Coke, in his comment on the
(h) 1 Hale 455. 4 Blac. Com, 200. words per malitiam, says, "if one be

(i) i Hale 474. 1 Hawk. P. C. c. ' appealed of murder, and it is found 29. s. 12. 4 Blac. Com. 200.

1 East. “by verdict that he killed the party se P. C. c. 5. s. 18. Malitia in its pro defendendo, this shall not be said to per or legal sense is different from

“ be per maliliam, because he had a that sense which it bears in common "just cause.". 2 Inst. 384. And where speech. In common acceptation it the statutes speak of a prisoner on his signifies a desire of revenge, or a set- arraignment standing mute of malice, tled anger against a particular person: the word clearly cannot be understood but this is not the legal sense ; and in its common acceptation of anger or Lord Holt, C. J. says upon this sub- desire of revenge against another. ject, “Some have been led into mis- Thus where the statute 25 Hen. 8. c. * takes by not well considering what 3. says, that persons arraigned of petit “the passion of malice is; they have treason, &c. standing“ mute of malice “construed it to be a rancour of mind “os froward mind," or challenging, “ lodged in the person killing for &c. shall be excluded from clergy, the

some considerable time before the word malice, explained by the accom-
“commission of the fact, which is a panying words, seems to signify a
“mistake, arising from the not well wickedness or frowardness of mind in
“ distinguishing between hatred and refusing to subunit to the course of
"malice. Envy, hatred, and malice, justice; in opposition to cases where
" are three distinct passions of the some just cause may be assigned for
“mind.” Kel. 127. Amongst the Ro- the silence, as that it proceeds from
mans, and in the civil law, malitia ap- madness, or some other disability or
pears to have imported a mixture of distemper. And in the statute 21 Edw.
fraud, and of that which is opposite to 1. De malefactoribus in parcis, tres-
simplicity and bonesty. Cicero speaks passers are mentioned who shall not
of it (De Nat. Deor. Lib. 3. s. 30.) as yield themselves to the foresters, &c.
"versula et fallax nocendi ratio ;and but“ immo malitiam sunm proseguendo
in another work (De Offic. Lib. 3. s. " et continuando," sball fly or stand
18.) he says, mihi quidem etiam vere upon their defence. And where the
hæreditates non honestae videntur si question of malice has arisen in cases
sint malitiosis (i. e, according to of homicide, the matter for considera-
"Pearce, a malo animo profectis) tion has been (as will be seen in the
- blanditiis officiorum; non veritate, course of the present and subsequent
sed simulatione quæsitæ.And see Chapters) whether the act were done
Dig. Lib. 2. Tit. 13. Lex. 8. where, in with or without just cause or excuse ;
speaking of a banker or cashier giving so that it has been suggested (Chapple

, in his accounts, it is said, “ Ubi ecigitur J. MS. Sum.) that what is usually *argentarius rationes edere, tunc pu- called malice inplied by the law “nilur cum dolo malo non exhibit *** would perhaps be expressed more inDolo malo autem non edit, et qui ma. telligibly and familiarly to the underliliosè edidit, et qui in totum non edit.” standing if it were called malice in a Amongst us malice is a terın of law legal sense.

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