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gun could not be ascertained. The point was therefore saved,
The indictment upon this statute for having entered into a forest,
, 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
(@) Rex v. Smith, Mich. T. 1818. Bayley, J. Russ. and Ry. 386.
(d) Rex v. Ridley, Trin. T. 1823.
(e) Rex v. Pankhurst, Hil. T. 1823.
many other offences specified) having entered any open or inclosed
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
(f) The 56 Geo. 3. c. 130. which subject, 39 and 40 Geo. 3. c. 50., is also
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,
OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.
CHAPTER THE FIRST
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.
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
(e) i Hale 451. 4 Blac. Com. 199. importing directly wickedness, and
Lord Coke, in his comment on the
(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-
, 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 in“ Dolo malo autem non edit, et qui ma. telligibly and familiarly to the under“ liliosè 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.