of their duty in so executing the warrant, and therefore that the conviction was wrong. R. v. Cumpton, 5 Q. B. D. 341; 49 L. J. (M. C.) 41. When a warrant has been issued to apprehend a person for an offence less than felony for which there is no statutory authority to arrest without warrant, the police officer who executes it must have the warrant in his possession at the time of attempting the arrest; and if he has it not, and is assaulted by the person whom he is endeavouring to arrest, such person cannot be convicted of an assault upon the police officer in the execution of his duty, nor of a common assault, unless he used more force than was necessary to prevent his apprehension. Codd v. Cabe, 1 Ex. D. 352; 45 L. J. (M. C.) 101; 13 Cox, 202. See also Galliard v. Laxton, 2 B. & S. 363; 31 L. J. (M. C.) 123 (ante, p. 810): R. v. Phelps, C. & Mar. 180 (ante, p. 807): R. v. Chapman, 12 Cox, 4 (ante, p. 810): R. v. Carey, 14 Cox, 214 (ante, p. 810). Although a police constable may not be bound, in the execution of his duty, to assist the occupier of a house in putting out an intruder, yet he may lawfully do so, and if he is assaulted by the intruder while so doing, the latter, though he may not be indictable for assaulting a peace officer in the execution of his duty, will be liable to a conviction for an assault, as he cannot justify resistance to the force lawfully used to eject him. R. v. Roxburgh, 12 Cox, 8. If the police are exceeding their authority, resistance is not an assault within this section. R. v. Marsden, L. R. 1 C. C. R. 131; 37 L. J. (M. C.) 80; 11 Cox, 90: R. v. Mabel, 9 C. & P. 474, though it may be a common assault; and see Broughton v. Wilkerson, 44 J. P. 781, as to justifiable resistance to a county court bailiff.

Refusing to aid and assist a constable in the execution of his duty, in order to preserve the peace, is an indictable misdemeanor at common law. In order to support such indictment, it must be proved that the constable saw a breach of the peace committed; that there was a reasonable necessity for calling upon the defendant for his assistance; and that when duly called on to do so, the defendant, without any physical impossibility or lawful excuse, refused to do so. And it is no defence that the single aid of the defendant could have been of no avail. R. v. Brown, C. & Mar. 314; 4 St. Tr., N. S. 1369. An indictment for refusing to assist a constable in the execution of his duty, and prevent an assault made upon him by persons in his custody on a charge of felony, with intent to resist their lawful apprehension, is sufficient without stating how the apprehension became lawful; and if it state a refusal to assist, without the further allegation that the defendant did not, in fact, assist. R. v. Sherlock, L. R. 1 C. C. R. 20; 35 L. J. (M. C.) 92; 10 Cox, 170.

Indictment for an Assault to prevent Arrest. (24 & 25 Vict. c. 100, s. 38, ante, p. 861.)

Commencement as ante, p. 839]-in and upon one J. N. did make an assault, and him the said J. N. did then beat, wound, and ill-treat with intent in so doing to resist and prevent (" resist or prevent ") the lawful apprehension (" apprehension or detainer") of him the said J. S. (“ of himself or of any other person") for a certain offence, that is to say, for [state the offence generally]; against the form [as ante, p. 840]. As to adding a count for a common assault, see ante, p. 863.

Misdemeanor: 24 & 25 Vict. c. 100, s. 38. See the precedent, ante, p. 862.

Evidence.

Prove the assault as directed (ante, p. 833, et seq.), and the intent, as directed (ante, pp. 303, 308, 340). It must be stated and proved that the apprehension was lawful. (See ante, p. 805.) If you fail in proving the intent, the defendant may be convicted of the common assault.

ASSAULTS BY POACHERS ON GAMEKEEPERS.

Statutes.

9 G. 4, c. 69 (Night Poaching Act, 1828), s. 2.]-Where any person shall be found upon any land committing any such offence as is herein before mentioned, it shall be lawful for the owner or occupier of such land, or for any person having a right or reputed right of free warren or free chase thereon, or for the lord of the manor or reputed manor wherein such land may be situate, and also for any gamekeeper or servant of any of the persons herein mentioned, or any person assisting such gamekeeper or servant, to seize and apprehend such offender upon such land, or in case of pursuit being made, in any other place to which he may have escaped therefrom, and to deliver him, as soon as may be, into the custody of a peace officer, in order to his being conveyed before two justices of the peace; and in case such offender shall assault or offer any violence with any gun, cross-bow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person hereby authorized to seize and apprehend him, he shall, whether it be his first, second, or any other offence, be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court, to be transported beyond seas for seven years (now penal servitude, see post, p. 886), or to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding two years; and in Scotland, whenever any person shall so offend, he shall be liable to be punished in like manner. [For the rest of the Act, see post, Chap. VI. Sect. 4, tit. "Poaching."]

7 & 8 Vict. c. 29, s. 1.]-Post, Chap. VI. Sect. 4, tit. “Poaching."

Indictment.

Essex, to wit:-The jurors for our lord the King upon their oath present, that, at the time of the committing of the assault hereinafter charged and stated, to wit, on the first day of November, in the year of our Lord in the night-time, to wit, about the hour of ten in the night of the same day, J. S. was unlawfully in certain land ("any land") [in the occupation] of one J. W., situate in the parish of, in the county of Essex, armed with a gun for the purpose of then, and by night as aforesaid, unlawfully taking and destroying game; and that he the said J. S. was then, so being in the said land by night as aforesaid, found armed with the said gun for the purpose aforesaid, by one J. N. ("the owner or occupier of such land, or any person having a right or reputed right of free warren or free chase thereon, or the lord of the manor or reputed manor wherein such land may be situate, or any gamekeeper or servant of the persons herein mentioned, or any person assisting such 55

A.C.P.

gamekeeper or servant") the servant of the said J. W., the said J. N. then having lawful authority to seize and apprehend the said J. S. found: and that he the said J. S., with the gun aforesaid (“ any gun, cross-bow, fire-arms, bludgeon, stick, club, or other offensive weapon whatsoever ") did then unlawfully assault and beat the said J. N. ("assault or offer violence towards"), the said J. N. then having lawful authority to seize and apprehend the said J. S.; against the form [as ante, p. 840].

*If the defendant escaped from the land and was pursued, here add, "the said J. S. then escaped from the said land into a certain other close there situate, and the said J. N. did thereupon then pursue the said J. S. into the said last-mentioned close, for the purpose of seizing and apprehending him the said J. S. as aforesaid, and that he the said J. S.," etc., etc. The precedents in editions of this work before the 22nd edition contained an averment that "J. N. was then about to seize and apprehend J. S." It is submitted that the words are unnecessary as they do not appear in the section. This count may be joined with one on the 9th section, post, Book II. Chap. VI. Sect. 4, and with one for common assault. R. v. Finacane, 5 C. & P. 551. An indictment which stated only that the defendant then and there, in the said land, by night as aforesaid, etc., found," was held bad, as not sufficiently showing that he was found committing the offence charged in the previous part of the indictment. R. v. Curnock, 9 C. & P. 730. If the indictment contains (1), a count in the form above given: and (2), a count charging a common assault, and the prosecution at the trial elect to abandon the count charging the common assault, the defendant cannot after such abandonment be convicted of a common assault upon the first count. R. v. Day, 11 Cox, 505 (C. C. R.).

was

Misdemeanor: penal servitude for not more than seven nor less than three years, or imprisonment with or without hard labour for not more than two years. 9 G. 4, c. 69, s. 2; 20 & 21 Vict. c. 3 (ante, p. 235); 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235).

Evidence.

Prove that the defendant entered certain land in the parish described, belonging to or in the occupation of J. W. (See ante, pp. 67, 298. It is not necessary to state the name of the close; but it has been held that if stated, it must be proved. R. v. Owen, 1 Mood. C. C. 118 (ante, p. 299). Formerly, a variance as to the parish or other local description was fatal, but it can now be amended under 14 & 15 Vict. c. 100, s. 1 (ante, pp. 52, 53). Prove that the defendant entered the land in the night-time, that is, some time between the expiration of the first hour after sunset, and the beginning of the last hour before sunrise. 9 G. 4, c. 69, s. 12, post, tit. Poaching": see R. v. Tomlinson, 7 C. & P. 183. It is not necessary to state the hour (ante, pp. 67, 297); nor, if stated, need it be proved, provided that the hour proved be within the period above mentioned. Prove that the defendant was armed with a gun, etc., and that he was on the land for the purpose of destroying game there. See R. v. Barham, 1 Mood. C. C. 151; R. v. Davis, 8 C. & P. 759. Prove also that the defendant was found on the land in the commission of the offence. The words of the statute are "found upon any land." Under 57 G. 3, c. 90, s. 3 (rep.), the words of which were enter into or be found in any forest," etc., where the defendant was not found in the close, but was seen in an adjoining close, and, shortly before he was seen, shots were heard in the close, and the jury found that he had been firing in the close, it being reserved for the judges whether it was necessary to prove that the defendant was seen in the close where the indictment stated him to have been found; they held

that, as the jury were satisfied that the defendant had been in the close armed, it was sufficient. R. v. Worker, 1 Mood. C. C. 165. (See post, tit. Poaching.") Prove that J. N. was servant to J. W., the owner or occupier of the land (or, if the offence was committed on any public road, highway, or path, or the sides thereof, or at any gate, outlet, or opening from any land to such road, etc., the owner or occupier of land adjoining either side of that part of the road, etc., where the offender was, 7 & 8 Vict. c. 29, s. 1) and prove the assault as directed (ante, p. 833, et seq.). Proof of a common intent of several prisoners to poach is not evidence of a common intent to wound. R. v. Doddridge, 8 Cox, 335, Martin, B. If J. N. escaped and was pursued, it must be stated; and if stated, it must be proved. Lastly, it must be proved that the offence was committed within twelve calendar months next before the prosecution. 9 G. 4, c. 69, s. 4, post tit. "Poaching."

A gamekeeper, or other person lawfully authorized, may apprehend poachers without giving notice of his purpose. R. v. Payne, 1 Mood. C. C. 378: R. v. Fielding, 2 C. & K. 621; and without a written authority so to do; R. v. Price, 7 C. & P. 178; provided they are upon the land or manor of his master, or other place mentioned in 7 & 8 Vict. c. 29; but without authority he may not apprehend them upon the lands of others. R. v. Davis, 7 C. & P. 785. A person who has only the right of shooting over the land of another, has no authority to authorize a gamekeeper to apprehend persons trespassing on such land in pursuit of game; consequently, resistance to such apprehension, if not excessive, is lawful. R. v. Wood, 1 F. & F. 470. Although s. 2 is confined to offences mentioned in s. 1, still an offender under s. 9 may be apprehended under the powers given by s. 2; for though a greater punishment is inflicted by s. 9 where several are out armed together, it is still an offence within s. 1. R. v. Ball, 1 Mood. C. C. 330: see R. v. Lines [1902] 1 K. B. 199, 203 (C. C. R.); 20 Cox, 142. And under 14 & 15 Vict. c. 19, s. 11 (ante, p. 622), any person may apprehend per ons committing offences against s. 9 of this Act in the night-time. R. v. Sanderson, 1 F. & F. 598. As to homicide by poachers, see ante, p. 809.

SHOOTING AT OFFICERS OF THE CUSTOMS, OR KING'S SHIPS.

Statutes.

39 & 40 Vict. c. 36 (Customs Consolidation Act, 1876), s. 193-Shooting at customs officers, or King's ships.]—If any person shall maliciously shoot at any vessel or boat belonging to [his] Majesty's navy, or in the service of the revenue, or shall maliciously shoot at, maim, or wound any officer of the army, navy, marines, or coastguard, being duly employed in the prevention of smuggling, and on full pay, or any officer of customs or excise, or any person acting in his aid or assistance, or duly employed for the prevention of smuggling, in the execution of his office or duty, every person so offending, and every person aiding, abetting, or assisting therein, shall, upon conviction, be adjudged guilty of felony, and shall be liable, at the discretion of the court, to penal servitude for any term not less than five years [now three years, 54 & 55 Vict. c. 69, s. 1, ante, p. 235], or to be imprisoned for any term not exceeding three years. (See post, p. 869.)

Sect. 229-Offences on the water.]-Where any offence shall be committed in any place upon the water, not being within any county of the U. K., or where the officers have any doubt whether such place is within the boundaries or limits of any such county, such offence shall, for the purposes of the Customs Acts, be deemed, and taken to be, an offence committed on the high seas, and for the purpose of giving jurisdiction under such Acts every such offence shall be deemed to have been committed, and every cause of complaint to have arisen, either in the place in which the same was actually committed or arose, or in any place on land where the offender or person complained against may be or be brought (see ante, pp. 39-43, 46).

Sect. 255-In whose name indictments to be preferred.]—All indictments or suits for any offences or the recovery of any penalties or forfeitures under the Customs Acts shall, except in the cases where summary jurisdiction is given to justices, be preferred or commenced in the name of [his] Majesty's Attorney-General for England or Ireland, or of the Lord Advocate of Scotland, or of some officer of customs or inland revenue.

Sect. 257-Limitation of proceedings.]-All suits, indictments, or informations brought or exhibited for any offence against the Customs Acts in any court, or before any justice, shall be brought or exhibited within three years next after the date of the offence committed. (See ante, p. 95.)

Sect. 258-Venue.]—Any indictment, prosecution, or information which may be instituted or brought under the direction of the Commissioners of Customs for offences against the Customs Acts shall and may be inquired of, examined, tried, and determined in any county of England when the offence is committed in England, and in any county of Scotland when the offence is committed in Scotland, and in any county in Ireland when the offence is committed in Ireland, in such manner and form as if the offence had been committed in the said county where the said indictment or information shall be tried. (See ante, p. 47.)

Sect. 260—Averments in smuggling cases.]—The averment that the Commissioners of Customs or Inland Revenue have directed or elected that any information or proceedings under the Customs Acts shall be instituted, or that any ship or boat is foreign or belonging wholly or in part to [his] Majesty's subjects, or that any person detained or found on board any ship or boat liable to seizure is or is not a subject of [his] Majesty, or that any goods thrown overboard, staved, or destroyed were so thrown overboard, staved, or destroyed to prevent seizure, or that any goods thrown overboard, staved, or destroyed during chase by any ship or boat in [his] Majesty's service or in the service of the Revenue were so thrown overboard, staved, or destroyed to prevent seizure, or that any person is an officer of Customs or Excise, or that any person was employed for the prevention of smuggling, or that the offence was committed within the limits of any port, or where the offence is committed in any port of the United Kingdom, the naming of such port in the information or proceedings shall be deemed to be sufficient, unless the defendant in any such case shall prove to the contrary. (See ante, p. 344.)

Sect. 261-Proof of commission, and competency of witnesses.]-If upon any trial a question shall arise whether any person is an officer of the army, navy, marines, or coastguard, duly employed for the prevention of smuggling, or an officer of customs or excise, his own evidence thereof,