indictment, and that the injury done exceeds the sum of one pound. A variance in the number of trees is not material. Prove that the trees, at the time, were growing in a park situate as described in the indictment (or, "in a pleasure-ground, garden, orchard, or avenue, or in any ground adjoining or belonging to a dwelling-house") (see R. v. Hodges, M. & M. 341, ante, p. 484); and that they were the property of J. N. Prove, also, that the trees were cut maliciously (see ante, p. 651, post, p. 701); but if it be doubtful whether the defendant did not intend to steal the trees, add a count to meet that. (See ante, p. 484.) Indictment for cutting, etc., Trees, etc., growing elsewhere, Value above 51. (24 & 25 Vict. c. 97, s. 21, ante, p. 695.) Commencement as ante, p. 433]-ten elm trees (see the last precedent), the property of J. N., then growing in a certain close (" elsewhere than in a park," etc., see the last precedent) of the said J. N., situate in the parish of in the county of feloniously, unlawfully, and maliciously did cut and damage (see the last precedent), thereby then doing injury to the said J. N., to an amount exceeding the sum of five pounds, to wit, to the amount of six pounds; against the form (as ante, p. 465). Felony see the last precedent.-24 & 25 Vict. c. 97, s, 21. Evidence. Prove that the defendant cut, etc., the trees mentioned in the indictment, or some of them; that the trees were the property of J. N., that is, that they were growing on land belonging to him, or in his occupation; that damage exceeding five pounds was done at one time (R. v. Williams, 9 Cox, 338 (C. C. R. Ir.)), or as part of one continuing transaction (see ante, p. 642); and that the cutting was done maliciously (ante, p. 651, post, p. 701). The "amount of injury done" means the actual injury done to the trees, etc., by the defendant's act; it is not sufficient to bring the case within the statute, that, although the amount of such actual injury is less than 57., the amount of consequential damage (as by its being necessary, in consequence of the defendant's act, to stub up and replace a hedge) would exceed 51. R. v. Whiteman, Dears. 353; 23 L. J. (M. C.) 120; 6 Cox, 370. (See ante, p. 484.) It is not necessary to prove that the trees grew elsewhere than in a park, etc. DESTROYING TREES, ETC., AFTER TWO PREVIOUS CONVICTIONS. Statute. 24 & 25 Vict. c. 97 (Malicious Damage Act, 1861), s. 22.]-Whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be growing, the injury done being to the amount of one shilling at the least, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour for any term not exceeding three months, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding five pounds, as to the justice shall seem meet; and whosoever, having been convicted of any such offence, either against this or any former Act of Parliament, shall afterwards commit any of the said offences in this section before mentioned, and shall be convicted thereof in like manner, shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labour for such term, not exceeding twelve months, as the convicting justice shall think fit; and whosoever, having been twice convicted of any such offence (whether both or either of such convictions shall have taken place before or after the passing of this Act), shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour . . . and, if a male under the age of sixteen years, with or without whipping. [This section re-enacts 7 & 8 G. 4, c. 30, s. 20. The accused, when charged after a first conviction, can elect to be tried on indictment. 42 & 43 Vict. c. 49, s. 17 (ante, p. 6). The election need not be averred: see ante, p. 490.] Indictment after two previous Convictions for cutting Trees, etc., A.D. Middlesex, to wit:-The jurors for our lord the King, upon their oath present, that J. S., on the day of one elm tree ("the whole or any part of any tree, sapling, or shrub, or any underwood") the property of J. N., then growing on certain land of the said J. N., in the parish of - in the county of —, unlawfully and maliciously did cut and damage ("cut, break, bark, root up, or otherwise destroy or damage"), thereby then doing injury to the said J. N., to the amount of two shillings; against the form of the statute in such case made and provided: And the jurors aforesaid, upon their oath aforesaid, do say, that heretofore and before the committing of the offence herein before mentioned [stating the two previous convictions as in the precedent at p. 486].—The subsequent offence is first stated in this precedent, but it seems immaterial whether it be stated before or after the previous convictions, as 24 & 25 Vict. c. 97, contains no provision similar to that contained in s. 116 of 24 & 25 Vict. c. 96 (ante, p. 430), which, in cases falling under it, requires the subsequent offence to be first charged. It seems also to be the better opinion that the latter part of the last-named section, regulating the proceedings upon indictments for committing any offence after a previous conviction or convictions, only applied originally (before its operation was extended by 34 & 35 Vict. c. 112, s. 9), to subsequent offences against the Larceny Act (see Greaves' Criminal Law Consolidation Acts (2nd ed.) p. 203; 2 Russ. Cr. (4th ed.) by Greaves, 349): and there is no analogous provision in the 24 & 25 Vict. c. 97. The question is not affected by 34 & 35 Vict. c. 112, s. 9 (ante, p. 185), which only extends to indictments for crimes after previous convictions for crimes as there defined, whereas the previous convictions charged in this indictment are convictions for offences. (See s. 20 of 34 & 35 Vict. c. 112.) Misdemeanor: imprisonment not exceeding two years, with or without hard labour; and, if a male under sixteen years of age, with or without whipping. -24 & 25 Vict. c. 97, s. 22. As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, Id. s. 73 (ante, p. 650). Evidence. Prove that the defendant cut and damaged the tree, the property of J. N.; prove that it was done maliciously (see ante, p. 651, post, p. 701); and prove that the damage exceeds 1s. (See ante, p. 488.) Prove the two previous convictions in the manner directed by 34 & 35 Vict. c. 112, s. 18 (ante, p. 488), and the identity of the defendant. In Heaven v. Crutchley [1903] 68 J. P. Rep. 52, it was held that a person could be convicted under this section for damage done in assertion of a legal right if the damage exceeded what could be reasonably supposed to be necessary for the assertion of the right. The court followed R. v. Clemens [1898] 1 Q. B. 556; 67 L. J. (Q. B.) 482; 19 Cox, 18. DESTROYING PLANTS, ETC., AND FENCES. Statute. 24 & 25 Vict. c. 97 (Malicious Damage Act, 1861), s. 23—Plants growing in gardens.]--Whosoever shall unlawfully and maliciously destroy, or damage with intent to destroy, any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery-ground, hothouse, greenhouse, or conservatory shall on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding six months, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding twenty pounds, as to the justice shall seem meet; And whosoever, having been convicted of any such offence, either against this or any former Act of Parliament, shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude . . . or to be imprisoned . . . and, if a male under the age of sixteen years, with or without whipping. [This section re-enacts 7 & 8 G. 4, c. 30, s. 21. On a charge for a first offence the accused can elect to be tried on indictment. 42 & 43 Vict. c. 49, s. 17, ante, p. 6. The election need not be averred: see ante, p. 490.] ... Sect. 24-Plants not growing in gardens.]—Whosoever shall unlawfully and maliciously destroy, or damage with intent to destroy, any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing on any land, open or enclosed, not being a garden, orchard, or nursery-ground, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding one month, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding twenty shillings as to the justice shall seem meet, and in default of payment thereof, together with the costs, shall be committed as aforesaid for any term not exceeding one month, unless payment be sooner made; And whosoever, having been convicted of any such offence, either against this or any former Act of Parliament, shall afterwards commit any of the said offences in this section before mentioned, and shall be convicted thereof in like manner, shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term not exceeding six months, as the convicting justice shall think fit. [This section re-enacts 7 & 8 G. 4, c. 30, s. 22. On a charge for a second or subsequent offence, the accused can elect to be tried on indictment. 42 & 43 Vict. c. 49, s. 17 (ante, p. 6). The election need not be averred: see ante, p. 490.] Sect. 25-Destroying fences.]—Whosoever shall unlawfully and maliciously cut, break, throw down, or in anywise destroy any fence of any description whatsoever, or any wall, stile, or gate, or any part thereof respectively, shall, on conviction thereof, before a justice of the peace, for the first offence, forfeit and pay over and above the amount of the injury done, such sum of money not exceeding 51., as to the justice shall seem meet; And whosoever having been convicted of any such offence, either under this or any former Act of Parliament, shall afterwards commit any of the said offences in this section before mentioned, and shall be convicted thereof in like manner, shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term not exceeding twelve months, as the convicting justice shall think fit. [This section is taken from 7 & 8 G. 4, c. 30, s. 23. On a charge for a second or subsequent offence, the accused can elect to be tried on indictment. 42 & 43 Vict. c. 49, s. 17 (ante, p. 6). The election need not be averred; see ante, p. 490.] Indictment after a previous Conviction, for destroying Plants, etc., in a Garden, etc. (24 & 25 Vict. c. 97, s. 23, ante, p. 698.) Middlesex, to wit: The jurors for our lord the King, upon their oath present, that J. S., on the day of A.D. 1902, certain fruits, to wit, twenty pounds' weight of grapes (" any plant, root, fruit, or vegetable production"), the property of J. N., in a certain garden (" in any garden, orchard, nursery-ground, hothouse, greenhouse, or conservatory") of the said J. N., situate in the parish of in the county of then growing, feloniously, unlawfully and maliciously did destroy ("destroy or damage with intent to destroy"), against the form of the statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do say, that heretofore and before the committing of the offence herein before mentioned [stating the previous conviction as in the precedent (ante, p. 486)]. See the note to the last precedent. Felony: penal servitude for not less than three years and not exceeding five years, or imprisonment not exceeding two years, with or without hard labour; and, if a male under sixteen years of age, with or without whipping.—24 & 25 Vict. c. 97, s. 23; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to requiring the offender to enter into recognizances and find sureties for keeping the peace. 24 & 25 Vict. c. 97, s. 73 (ante, p. 650). Evidence. Prove the second offence stated in the indictment: that the defendant destroyed the grapes; that they were, at the time, growing in the garden of J. N., situate as described in the indictment; and that the offence was committed maliciously. (See ante, p. 651, post, p. 701.) Prove the previous conviction in the manner directed by 34 & 35 Vict. c. 112, s. 18 (ante, p. 361), and the identity of the defendant. The words "plant" or "vegetable production" do not apply to young trees. R. v. Hodges, M. & M. 341. (See ante, p. 484.) DESTROYING OR DAMAGING WORKS OF ART, ETC., IN MUSEUMS, ETC. Statute. 24 & 25 Vict. c. 97 (Malicious Damage Act, 1861), s. 39.]—Whosoever shall unlawfully and maliciously destroy or damage any book, manuscript, picture, print, statue, bust, or vase, or any other article or thing kept for the purposes of art, science, or literature, or as an object of curiosity, in any museum, gallery, cabinet, library or other repository, which museum, gallery, cabinet, library or other repository, is either at all times, or from time to time, open for the admission of the public or of any considerable number of persons to view the same, either by the permission of the proprietor thereof, or by the payment of money before entering the same, or any picture, statue, monument, or other memorial of the dead, painted glass, or other ornament or work of art, in any church, chapel, meetinghouse, or other place of divine worship, or in any building belonging to the queen, or to any county, riding, division, city, borough, poor-law union, parish or place, or to any university, or college or hall of any university, or to any inn of court, or in any street, square, churchyard, burial-ground, public garden or ground, or any statue or monument exposed to public view, or any ornament, railing, or fence surrounding such statue or monument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding six months, with or without hard labour, and, if a male under the age of sixteen years, with or without whipping: Provided that nothing herein contained shall be deemed to affect the right of any person to recover, by action at law, damages for the injury so committed. [This section was framed from 8 & 9 Vict. c. 44, ss. 1, 4; and 17 & 18 Vict. c. 33, s. 6, with the additions italicized. The defacing of tombs, etc., is said to be punishable at common law. See Corven's case, 12 Co. Rep. 105; Greaves Crim. Law Cons. Acts (2nd ed.), p. 238. MALICIOUS INJURIES TO PROPERTY TO AMOUNT OF FIVE POUNDS. Statute. 24 & 25 Vict. c. 97 (Malicious Damage Act, 1861), s. 51.]—Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is herein before provided, the damage, injury, or spoil being to an amount exceeding five pounds, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour: and in case any such offence shall be committed between the hours of nine of the clock in the evening |