Sec. 4. "The prosecution for every offence punishable upon summary conviction by virtue of this Act shall be commenced within six calendar months after the commission of the offence; and the prosecution for every offence punishable upon indictment, or otherwise than upon summary conviction, by virtue of this Act, shall be commenced within twelve calendar months after the commission of such offence."(0) Sec. 8. "On every conviction under this Act for a first or second offence the convicting justices shall return the same to the next quarter sessions for the county, riding, division, city, or place wherein such offence shall have been committed; and the record of such conviction. or any copy thereof, shall be evidence in any prosecution to be instituted against the party thereby convicted for a second or third offence; and the clerk of the peace shall immediately on such return make or cause to be made a memorandum of such conviction in a register to be kept by *643] him of the names and places of abode of the persons so convicted, and shall state whether such conviction be the first or second conviction of the offending party." Sec. 9. "If any persons, to the number of three or more together, shall by night unlawfully enter or be in any land, whether open or inclosed, for the purpose of taking or destroying game or rabbits, any of such persons being armed with any gun, crossbow, firearms, bludgeon, or other offensive weapon, each and every of such persons shall be guilty of a misdemeanor, and being convicted thereof before the justices of gaol delivery, or of the Court of Quarter Sessions of the county or place in which the offence shall be committed, shall be liable at the discretion of the Court to be transported(p) beyond the seas for any term not exceeding fourteen(q) years, nor less than seven years, or to be imprisoned and kept to hard labor for any term not exceeding three years; and in Scotland, any person so offending shall be liable to be punished in like manner."(r) Sec. 12. For the purposes of this Act the night shall be considered, and is hereby declared to commence at the expiration of the first hour after sunset, and to conclude at the beginning of the last hour before sunrise." Sec. 13. "For the purposes of this Act the word 'game' shall be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards." The 7 & 8 Vict. c. 29, reciting the 9 Geo. 4, c. 69, ss. 1, 2, and that "the provisions of the said Act have of late years been evaded and defeated, by the destruction by armed persons at night of game or rabbits, not upon open or enclosed lands, as described in the said Act, but upon public roads and highways, and other roads and paths leading through such lands, and also at the gates, outlets and openings between such lands, and roads, and highways, and paths, so that not only has the destruction of game or rabbits not been prevented, but the risk of murder and other grievous offences contemplated by the said Act has been increased, and great danger and alarm occasioned to persons using such roads, highways, and paths; and that it is expedient that the remedies provided by the said Act against such offences as herein-before mentioned should be extended and applied to the like offences committed upon such roads, highways, and paths," enacts, "that from and after the passing of this Act all the pains, punishments and forfeitures imposed by the said Act upon persons by night unlawfully taking or destroying any game or rabbits in any land, open or enclosed, as therein set forth, shall be applicable to and imposed oath of any credible witness with any offence punishable under the Act upon summary conviction. (0) Sec. 5 gives the form of conviction for offences under the Act; as to which see Rex v. Mellor, 2 Dowl. P. R. 173. Sec. 6 gives an appeal to any person aggrieved by any summary conviction; and sec. 7 takes away the certiorari. See Rex v. Mellor, supra, and Rex v. Hester, 4 Dowl. P. R. 589. (p) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4. (q) And not less than three years by the same clause: Ibid. (r) By sec. 10, in Scotland the sheriff of the county within which the offence shall have been committed shall have a cumulative jurisdiction with the justices of the peace in regard to the same; and the conviction in Scotland may be proved in the same manner as a conviction in any other case according to the law of Scotland; and by sec. 11, in all cases in Scotland of a third offence, or in other cases in Scotland where a sentence of transportation may, by the provisions of this Act, be pronounced, the offender shall be tried before the High Court or Circuit Court of Justiciary. upon any person by night unlawfully taking or destroying any game or rabbits on any public road, highway, or path, or the sides thereof, or at the openings, [*644 outlets, or gates from any such land into any such public road, highway, or path, in the like manner as upon any such land, open or inclosed; and it shall be lawful for the owner or occupier of any land adjoining either side of that part of such road, highway, or path where the offender shall be and the gamekeeper or servant of such owner or occupier, and any person assisting such gamekeeper or servant, and for all the persons authorized by the said Act to apprehend any offender against the provisions thereof, to seize and apprehend any person offending against the said Act or this Act; and the said Act, and all the powers, provisions, authorities and jurisdictions therein or thereby contained or given, shall be as applicable for carrying this Act into execution as if the same had been herein specially set forth."(s) In consequence of the easy manner in which poachers escaped detection and apprehension by the power to apprehend them being confined to cases where they were found upon the land committing the offence, the 25 & 26 Vict. c. 114, was passed. Sec. 1, defines game to include one or more hares, pheasants, partridges, eggs of pheasants and partridges, woodcocks, snipes, rabbits, grouse, black or moor game, and eggs of grouse, black or moor game; and sec. 2, makes it lawful for "any constable or peace officer in any county, borough, or place in Great Britain and Ireland, in any highway, street or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game, or any person aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, part of a gun, or nets or engines used for the killing or taking game, and also to stop and search any cart or other conveyance in or upon which such constable or peace officer shall have good cause to suspect that any such game or any such article or thing is being carried by any such person, and should there be found any game or any such article or thing as aforesaid upon such person, cart, or other conveyance, to seize and detain such game, article or thing;" and the constable or peace officer is in such case to apply for a summons citing such person to appear before two justices in petty sessions, as provided by the 18 & 19 Vict. c. 106, s. 9, in England and Ireland, and before a sheriff or any two justices in Scotland, and "if any such person shall have obtained such game by unlawfully going on any land in search or pursuit of game,(t) or shall have used any such article or thing as aforesaid for unlawfully killing [*645 or taking game, or shall have been accessory thereto, such person shall on being convicted thereof forfeit and pay any sum not exceeding five pounds," and shall forfeit the game, guns, parts of guns, nets and engines, and the justices are to direct them to be sold or destroyed, and the proceeds of the sale and penalty to be paid to the treasurer of the county or borough; and if no conviction takes place the game, article or thing or the value thereof shall be restored to the person from whom it was seized. (u) (8) This Act seems to have been a manifest mistake in legislation, for there is no reason whatever in point of law why the 9 Geo. 4, c. 69, did not include all highways. And Reg. v. Pratt, 4 E. & B. 860 (82 E. C. L. R.), where it was held that a person might be convicted of a trespass in pursuit of game on a highway under the 1 & 2 Will. 4, c. 30, s. 30, is a strong authority to that effect. The law is clear that subject to the right of passage the soil and every right incident to the soil of a highway is in the owner of the soil, and every one who goes on a highway, not in the exercise of the right of way, but for any other purpose is a trespasser: Ibid. See also Mayhew v. Wardley, 8 Law T. 504; 14 C. B. (N. S.) 550, where a man who standing in a highway, shot a partridge in a field adjoining, was held to be properly convicted of a trespass in pursuit of game on the highway. (t) It is not necessary under this clause to prove from what particular land the game was taken. The only question is, whether it was unlawfully taken from any land; and if a man be found in the night with recently killed game, or with guns or nets, or with both, the inference may be drawn that he has been on some land, without showing what land, in the unlawful search and pursuit of game: Brown v. Turner, 13 C. B. (N. S.) 485 (106 E. C. L. R.); Evans v. Botterill, 8 Law T. 272; s. c., 3 B. & S. 787. (u) Sec. 3, any penalty in England is recoverable under the 1 & 2 Will. 4, c. 32; in Scotland under the 2 & 3 Will. 4, c. 68; and in Ireland under the Petty Sessions Ireland Act, 1851. Sec. 4 extends the provisions of the 11 & 12 Vict. c. 43, to proceedings under this Act. Sec. 5 takes away the certiorari, &c.; and sec. 6 gives an appeal against any conviction under the Act. VOL 1.-33 If a constable sees game or rabbits upon a person, it is not necessary that there should be a search to authorize a proceeding under the 25 & 26 Vict. c. 114, s. 2, for it cannot be intended that if a man is seen coming out of a plantation with game or rabbits in his possession it should be necessary to go through the process of searching him.(uu) On an indictment against two prisoners for unlawfully wounding a policeman, with intent to resist their lawful apprehension, it appeared that the policeman saw a horse and cart between one and two o'clock in the night approaching L. One man was leading the horse, and seven or eight more were in the cart Suspecting that they had been in pursuit of game, the policeman laid hold of the horse's rein, and asked them their names and business. The men in the cart called out to the man who was leading the horse to pull out his stick and knock the policeman down. The man pulled out his stick, and put himself in a fighting attitude. The policeman drew his staff, and said, "You are poachers; I shall search the cart." The men tried to prevent him looking into the cart, and a scuffle ensued, in which the policeman was knocked down by a blow from behind, which struck out one of his eyes. The two prisoners were afterwards apprehended, as they were driving the cart into L.; they were then alone, and the cart contained nothing but a wooden peg, a pocketknife, and dog collar. Martin, B., held that the 25 & 26 Vict. c. 114 does not authorize the policeman to apprehend the persons whom he suspects of having been unlawfully in search of game: and therefore there was no intent in the prisoners to resist their lawful apprehension; and that the prisoners could only be found guilty of unlawfully wounding if the policeman was authorized to search the cart; and that it was not shown that the policeman had any cause of suspicion whatever. That it was not shown that either of the prisoners struck the blow, and there was no such common intent as would render the prisoners liable for the act of the man who did strike the blow. The only common intent proved was that of resisting the unlawful search, which, so far as appeared, the prisoners had a right to do. The man who struck the blow was alone guilty of the excess, and the prisoners must be acquitted.(vv) It deserves consideration whether the existence of a common intent is not in all cases a question for the jury, and whether in this case there was not abundant evidence in the declaration, "Pull out your stick and knock him down," and in the other facts, of a common purpose to inflict unnecessary violence. On another indictment against the same prisoners for assaulting the policeman in the execution of his duty, in addition to the facts proved on the previous trial, it was proved that a Mr. Franks had sent word to the policeman, a few hours before the cart was stopped, that eight men, a cart and horse, and two dogs, were going from Leicester in the direction of a village three or four miles distant, and it was proposed to give evidence that the prisoners were habitual poachers, for the purpose of showing what was passing in the policeman's mind; but Martin, B., held that such evidence could not be given, and that the other evidence did not show sufficient cause of suspicion. Good cause to suspect means a reasonable ground of suspicion, upon which a reasonable man may act It was obvious that eight men might reasonably go out of a town, with a horse and cart and two dogs, for a multitude of purposes besides that of unlawfully taking game; and the policeman had, from those circumstances alone, no more cause to suspect them of having committed the latter offence than of committing almost any other offence known to the law. There was no good cause of suspicion in these circumstances, and therefore the policeman was not in the execution of his duty.(ww) The decision that evidence is not admissible in such a case of the prisoners being habitual poachers, deserves reconsideration. The common law has always taken notice of habitual misconduct, and it has even been held that an indictment charging a man that he, being of bad fame and dishonest conversation, fuit nocte vagans is good; for this is to be intended communis nocte vagans. Willow's case, Latch 173, and see note (0), p. 809 of Vol. I. No one can doubt that habitual conduct necessarily leads any reasonable mind to form a conclusion; and to exclude evidence of what must operate on the mind, is to exclude evidence of what may have been the chief cause of an action. (uu) Hall v. Knox, 4 B. & S. 515 (116 E. C. L. R.). (vv) Reg. v. Spencer, 3 F. & F. 854. (ww) Reg. v. Spencer, 3 F. & F. 857. Where two persons drove along a highway in a trap, and one got out and entered a field with a gun and dog, and shot a hare, and then returned to the trap and gave the hare to the other in the trap, which had remained where the one had got out of it; it was held that the one who remained in the trap might be convicted of aiding and abetting the other in committing a trespass in pursuit of game in the daytime, against the 1 & 2 Will. 4, c. 32, s. 30.(xx) Where a person standing on land where he had a right to shoot shot a pheasant on the ground in an adjoining close, and then entered that close and picked up the dead pheasant, the Court of Common Pleas held that he was guilty of a trespass in pursuit of game, as the shooting the bird and going on the land to pick it up was one continuous transaction.(yy) But the preceding case was doubted in a case where the defendant, being on his own land, shot a pheasant, which rose on that land and fell dead on the land of another person, and the defendant went and fetched the bird, taking his dog and gun with him; and the Court of Queen's Bench held that the defendant was not guilty of a trespass in search of game against the 1 & 2 Will. 4, c. 32, s. 30; for that section only applies to living game.(zz) Where a bill of indictment had been preferred within a year after the commission of an offence under the 9 Geo. 4, c. 69, against the prisoner and Robins, and ignored as to the prisoner, but found against Robins, who was convicted, and four years afterwards a fresh bill was found against the prisoner; it was considered to be clear that preferring the first bill was the commencement of a prosecution, but it was doubted whether the condition in sec. 4, requiring a prosecution by indictment to be commenced within twelve calendar months, had been complied with by preferring the bill, which was ignored. And Adam v. The Inhabitants of Bristol(v) was referred to; where, in an action for an injury to property by rioters on the 7 & 8 Geo. 4, c. 31, which requires the action to be commenced within three months, the party had commenced an action within three months and died, and her executor brought an action within forty days after her death, but more than three months after the damage was done, and it was contended that the condition having been once complied with, the executor had a right to bring an action within a reasonable time; but the Court held that the action was not brought in time (w) On the trial of an indictment for night-poaching, it appeared that the offence was committed on the 12th of January, 1844; the indictment was found at the assizes held on the 1st March, 1845: but the warrant by which the defendant was committed on the present charge was on the 11th of December, 1814; and Pollock, C. B., held that the warrant of commitment must be taken to show the commencement of the prosecution, and therefore the prosecution was shown to have been commenced within twelve calendar months after the commission of the offence.(x) *Upon an indictment for night-poaching under the 9 Geo. 4, c. 69, laying an information before a magistrate is the commencement of the [*646 prosecution. The offence was committed on the 4th of December, 1845. The information before the magistrates and warrant were on the 19th of the same month. One prisoner was apprehended and committed on the 5th of September, 1846; the other on the 21st of October in the same year: the indictment was preferred on the 5th of (zz) Stacey v. Whitehurst, 18 C. B (N. S) 344 (114 E C. L. R.). (v) 2 A. & E. 389 (29 E. C. L. R.); 4 N. & M. 144. (w) Rex v. Killminster, 7 C. & P. 228 (32 E. C. L. R.), Coleridge, J. The prisoner was acquitted, otherwise the point would have been reserved for the opinion of the judges. See Rex v. Willace, 1 East P. C. 186, where in a case of coining it was held that the information and proceedings before the magistrate, and not the preferring the bill, was the commencement of the proceedings, and that a variance between the manner of laying the offence in the indictment and charging it in the commitment, made no difference. See also Rex v. Phillips, R. & R. 369, where it was held that proof by parol that the prisoner was apprehended for treason respecting the coin, within the three months limited by the 8 & 9 Will. 3, c. 26, was not sufficient if the indictment was after the three months, and the warrant to apprehend or commit, or depositions were not produced to show on what transactions, or for what offence, or at what time the prisoners were committed. (x) Reg. v. Austin, 1 C. & K. 621 (47 E. C. L. R.). April, 1847; and, upon a case reserved, the judges were unanimously of opinion that the prosecution was commenced in time.(y) But where on the trial of an indictment for night-poaching it appeared that the offence was committed some time in 1853, and a warrant for the defendant's apprehension granted at that time, but not served, the defendant having absconded, and on the defendant's return after six years' absence, the present proceedings were instituted and the preceding cases were cited: Pollock, C. B., said, "None of these cases go to the extent contended for in this case. I am of opinion that the issuing of this warrant was not a commencement of proceedings within the statute," and the prisoner was accordingly acquitted.(z) Parker and Smith were indicted for night-poaching on the 26th of January, 1861, and a warrant dated the 5th of February, 1861, was proved to be under the hand of a magistrate, and this warrant recited that information had that day been given of the offence, but no information was given in evidence. Smith was apprehended under this warrant on the 27th November, 1862, and Parker on the 14th January, 1864; and, upon a case reserved, it was held that, in order to show that the prosecution was commenced in due time, the information ought to have been given in evidence.(zz) This case was only argued for the prisoners, and the deci sion is unsatisfactory. It was objected that it was not alleged in the warrant that the information was in writing, as required by sec. 8 of the 11 & 12 Vict. c. 42. It did not therefore appear that any legal information was ever laid. The answer is, that the form given by the statute for a warrant does not recite that the information was in writing; as the warrant did recite an information, it was sufficient. (aa) At all events, the warrant was evidence that the prosecution was pending at its date; under that warrant the prisoner had been apprehended, examined, and committed, and any objection as to the information was far too late at the trial. On an indictment for night-poaching it appeared that some tame pheasants were in coops about 150 yards from a house; but they were not shut up, and could run about, and on this night they were roosting in trees close by. Common hens were in the coops, having been used for rearing the pheasants. The prisoners went to the coops, and one said, "There is nothing here but an old hen;" they were looking in other coops when they were apprehended. It was held that these birds could not be considered game within the meaning of the statute. As long as they were under the charge of the hen, as long as she was their guardian, and while they were about her, and running about with her, he who took them was guilty of larceny.(a) An indictment alleged that the prisoner was duly convicted before three justices, for that he by night after the expiration of the first hour after sunset and before the beginning of the first hour before sunrise, did by night unlawfully enter a certain close, &c., describing it, with a gun for the purpose of then and there taking and destroying game; and the prisoner was thereupon adjudged for his said offence, the same being his first offence, to be imprisoned, &c.; and that the prisoner afterwards was duly convicted before two justices, for that he by night unlawfully did enter and be in certain inclosed land, &c., describing it, "with certain instruments for the purpose of killing, taking, and destroying game thereon, this being his second offence;" and was thereupon adjudged, &c. It was objected on error: 1. That the second conviction alleged was not valid, because the first conviction *did not appear to have been set out in it; but it was held that all that was necessary in such an indictment in order to give the Court jurisdiction was *647] (y) Reg. v. Brooks, 1 Den. C. C. 217; 2 C. & K. 402 (61 E. C. L. R.). (2) Reg. v. Hull, 2 F. & F. 16. This case is so badly reported, that it is impossible to see what was really decided. If the last proceedings had no connection with the warrant, or information on which it issued, that may have been the ground of the decision. See Rex v. Killminster, supra. (zz) Reg. v. Parker, L. & C. 459. (aa) See Haylock v. Sparke, 1 E. & B. 471 (72 E. C. L. R.). (a) Reg. v. Garnham, 8 Cox C. C. 451, Pollock, C. B., and Williams, J. Pollock, C. B., also said, "I take it if a man go into a London market, and buy pheasants' eggs, and hatch them under a common hen, when the birds became free from control they would come under the game laws." |