Indictment. Punishment. 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 discovered 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, ownership, occupation, or abuttals. And upon a case reserved, Abbott, C. 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 (a) Rex v. Smith, Mich. T. 1818. Bayley, J. Russ. and Ry. 386. (e) Rex v. Pankhurst, Hil. T. 1823. Russ. and Ry. 503. 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. 57 Geo. 3. Rangers, keepers, &c. and deliver The second section of the 57 Geo. 3. c. 90. enacts, that, for the more easy and speedy bringing the offenders against this act to justice, it shall be lawful for the rangers, owners, and occupiers, 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 officer. 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 not be so apprehended, any such justice may, on information before him on the oath of any credible witness or witnesses, issue his warrant for the apprehension of them; and if, upon the apprehension of any such offenders, it shall appear to such justice, on the oath of any credible witness or witnesses, that the persons so charged have been guilty of the crime of being found armed at 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. And a justice till the quarter to the law of 57 Geo. 3. c. 90. s. 3.-Persons found But persons unarmed, going out by night for the destruction of Scotland. game, are not liable to such serious punishments; this statute being more mild in its enactments than one which was passed in the preceding year. (f) With respect to such persons unlawfully entering into, or being found in, any forest, &c. or other open or inclosed ground at night, (according to the former provisions of the act as to what shall be deemed night for these purposes,) having any net, engine, or other instrument, for the purpose, and with the intent to destroy, take, or kill, or who shall wilfully destroy, take, or kill game, it enacts, that the rangers, owners, and occu (f) The 56 Geo. 3. c. 130. which subject, 39 and 40 Geo. 3. c. 50., is also is repealed by this statute, s. 4.; and repealed. by s. 5. a former statute on the same in any forest tice. L 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 Burn. Just. tit. different modes of proceeding against Game. BOOK THE THIRD. OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS. CHAPTER THE FIRST OF MURDER. MURDER is the killing any person under the King's peace, with malice prepense or aforethought, either express or implied by law. (a) Of this description the malice prepense, malitia præcogitata, is the chief characteristic, the grand criterion by which murder is to be distinguished from any other species of homicide; (b) 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) Express Malice may be either express or implied by law. malice is, when one person kills another with a sedate deliberate mind and formed design: such formed design being evidenced by external circumstances, discovering the inward intention; as lying (a) 8 Inst. 47, 51. 1 Hale 424, 448, 449. 1 Hawk. P. C. c. 31. s. 3. Kely. 127. Fost. 256. 2 Lord Raym. 1487. 4 Blac. Com. 198. 1 East. P. C. c. 5. s. 2. p. 214. (b) 4 Blac. Com. 198. Gastineaux's case, 1 Leach 417. (c) Fost. 256, 262. (d) 1 Hawk. P. C. c. 31. s. 18. Fost. 257. 1 Hale 451 to 454. Definition of Malitia præcogitata, or malice prepense. the crime. Malice may be either express or implied. in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. (e) And malice is implied by law from any deliberate cruel act committed by one person against another, however sudden : (f) thus where a man kills another 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.(g) So if a man wilfully poisons another; in such a deliberate 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. (¿) And it should be observed as a general rule, that all homicide is presumed to be 66 (e) 1 Hale 451. 4 Blac. Com. 199. (f) 1 East. P. C. c. 5. s. 2. p. 215. (g) 4 Blac. Com. 200. (h) 1 Hale 455. 4 Blac. Com. 200. (i) Hale 474. 1 Hawk. P. C. c. 29. s. 12. 4 Blac. Com. 200. 1 East. P. C. c. 5. s. 18. Malitia in its proper or legal sense is different from that sense which it bears in common speech. In common acceptation it signifies a desire of revenge, or a settled anger against a particular person: but this is not the legal sense; and Lord Holt, C. J. says upon this subject, "Some have been led into mistakes by not well considering what "the passion of malice is; they have "construed it to be a rancour of mind "lodged in the person killing for some considerable time before the "commission of the fact, which is a "mistake, arising from the not well "distinguishing between hatred and "malice. Envy, hatred, and malice, "are three distinct passions of the "mind." Kel. 127. Amongst the Romans, and in the civil law, malitia appears to have imported a mixture of fraud, and of that which is opposite to simplicity and honesty. Cicero speaks of it (De Nat. Deor. Lib. 3. s. 30.) as "versuta et fallax nocendi ratio;" and in another work (De Offic. Lib. 3. s. 18.) he says, "mihi quidem etiam veræ "hæreditates non honestæ videntur si "sint malitiosis (i. e. according to "Pearce, a malo animo profectis) *blanditiis officiorum; non veritate, “sed simulatione quæsita." And see Dig. Lib. 2. Tit. 13. Lex. 8. where, in speaking of a banker or cashier giving in his accounts, it is said, “Ubi exigitur "argentarius rationes edere, tunc pu"nitur cum dolo malo non exhibit *** “Dolo malo autem non edit, et qui ma“litiosè edidit, et qui in totum non edit.” Amongst us malice is a term of law importing directly wickedness, and excluding a just cause or excuse. Thus Lord Coke, in his comment on the words per malitiam, says, "if one be "appealed of murder, and it is found 66 by verdict that he killed the party se defendendo, this shall not be said to "be per malitiam, because he had a "just cause." 2 Inst. 384. And where the statutes speak of a prisoner on his arraignment standing mute of malice, the word clearly cannot be understood in its common acceptation of anger or desire of revenge against another. Thus where the statute 25 Hen. 8. c. 3. says, that persons arraigned of petit treason, &c. standing "mute of malice "or froward mind," or challenging, &c. shall be excluded from clergy, the word malice, explained by the accom panying words, seems to signify a wickedness or frowardness of mind in refusing to submit to the course of justice; in opposition to cases where some just cause may be assigned for the silence, as that it proceeds from madness, or some other disability or distemper. And in the statute 21 Edw. 1. De malefactoribus in parcis, trespassers are mentioned who shall not yield themselves to the foresters, &c. but“immo malitiam suam prosequendo "et continuando," shall fly or stand upon their defence. And where the question of malice has arisen in cases of homicide, the matter for consideration has been (as will be seen in the course of the present and subsequent Chapters) whether the act were done with or without just cause or excuse; so that it has been suggested (Chapple, J. MS. Sum.) that what is usually called malice implied by the law would perhaps be expressed more intelligibly and familiarly to the understanding if it were called malice in a legal sense. |