him; or (2) in the case of persons employed in a factory or workshop, by exhibiting such particulars in the factory or workshop on a placard containing no other matter than the rates of wages applicable to the work done in the factory or workshop, and posted in a position where it is easily legible by the workers. (b) Such particulars of the work given out to each worker as affect the amount of wages payable to him shall be furnished to him in writing at the time when the work is given out to him. (c) The particulars either as to rate of wages or as to work shall not be expressed by means of symbols. (2) If the occupier or contractor fails to comply with the requirements of this section, he shall be liable for each offence to a fine of not more than ten pounds, and, in the case of a second or subsequent conviction within two years from the last conviction for that offence, not less than one pound. In this order the term "out-worker" means (a) any workman employed in the business of a factory or workshop outside the factory or workshop, whether directly by the occupier thereof or by any contractor employed by him; (b) any workman employed by the occupier of any place from which work is given out or by a contractor employed by him in connection with the said work.

By sect. 157 of the Act it is provided:

The following provisions of thie Act shall not apply to men's workshops-that is to say, workshops conducted on the system of not employing any woman, young person, or child there (4) Part 7.

It was contended on behalf of the respondent that by reason of the last-mentioned provision there was no obligation upon him to give particulars of the rate of wages to Stenoff, inasmuch as the garment was given out to him from a men's workshop within the meaning of the provision, and that therefore the provisions of sect. 116, under which the respondent was summoned, did not apply, and that the order of the Secretary of State did not in fact purport to apply and could not be construed as applying to a men's workshop provisions which the Act of Parliament expressly enacted should not be so applied.

On behalf of the appellant it was contended that such obligations existed, and were not affected by the said provision.

The magistrate held that the respondent's contention was correct, and dismissed the summons with costs.

S. A. T. Rowlatt for the appellant.

Cecil Walsh for the respondent.

PICKFORD, J.-It is very difficult when one has to look at all the different sections of the Act of Parliament, read them altogether, then separate bits of them, then read the order and see whether the order comes within the provisions of a particular section, to arrive at a conclusion with any certainty, but I have come to the conclusion that the magistrate was right here, and that this order does not apply to this case.

The facts are very short. The respondent carries on the business of a tailor in what is found to be a men's workshop, and he is summoned for that, being the occupier of those premises, he did not furnish to a person who was an outworker a written or printed statement of the particulars of the rate of his wages. He is liable, if at all, under an order made on the 14th Sept. 1909 by the Secretary of State, which provides that that shall be done, and it does that by applying the provisions of sect. 116 of the Factory and Workshop Act of 1901, and it provides that the provisions of that section shall apply, "subject

66

[K.B. DIV.

to the modifications hereinafter contained, to factories and workshops in which the hereinafter mentioned processes or any of them are carried on and to out-workers employed in those processes, and the occupier or contractor by whom they are employed." Sect. 116, sub-sect. 5, says that: The Secretary of State on being satisfied by the report of an inspector that the provisions of this section are applicable to any class of non-textile factories or to any class of workshops, may, if he thinks fit, by special order, apply the provisions of this section to any such class, subject to such modifications as may in his opinion be necessary for adapting those provisions to the circumstances of the case. He may also, by any such order, apply those provisions, subject to such modifications as may in his opinion be necessary for adapting them to the circumstances of the case, to any class of persons of whom lists may be required to be kept under the provisions of this Act relating to out-workers and to the employers of those persons."

It is admitted that the first part of that subsection does not apply to this case, because this is a men's workshop, and by sect. 157 of this same Act it is provided that Part 7 of the Act, of which this section is one, shall not apply to men's workshops; but it is said that the second partthat is, that the Secretary of State may also by any such order apply these provisions to any class of persons of whom lists may be requireddoes apply because the trade carried on by the respondent is a trade which by order of the Secretary of State has been brought within the provisions of sect. 107, and therefore that the respondent has to keep lists of his out-workers. Therefore it is said that there is power here to make this order and to apply it to these persons who are out-workers in this business because they are a class of persons of whom lists may be required to be kept.

I have already pointed out that the summons is against the respondent as occupier, but I suppose that ought not to be used as any serious argument against the appellant-I mean as showing that they thought that occupation of the workshop was necessarily an ingredient of the offence. It seems to me that this is really sinning against sect. 157: it is indirectly doing what sect. 157 directly prohibits from being done. It is quite true that these are persons who are out-workers and not workers in the men's workshop, but they are persons who are working in connection with the men's workshop, and the penalty imposed for violation of the regulations is a penalty imposed upon the man who is carrying on the business in the men's workshop, and it therefore is in my opinion, as I have said, an attempt indirectly-possibly it may have been an attempt which if it had succeeded would have borne good results, that I do not know-but it is an attempt, it seems to me, indirectly to apply this to the business which is carried on in the men's workshop, and therefore to apply it to a men's workshop in a way that is forbidden by sect. 157.

I think, therefore, it does not apply to men's workshops, and that this appeal should be dismissed with costs.

AVORY, J.-I agree that the magistrate was right in dismissing this information. I am not sure whether we ought to hold that he was right

on the ground that the order made in 1909 does not apply to this case, or upon the ground that the order itself is ultra vires. I am inclined to think that the order itself on the face of it is ultra vires because it neglects to except from its operation the exception introduced into the Act by sect. 157 -in other words, the order upon its face would read as if it did apply to the case of a men's work. shop within the definition of sect. 157. The respondent was here summoned as the occupier of premises being a workshop for that he did not furnish to an out-worker particulars of the rate of wages applicable to the work to be done. For the purpose of this summons I think that the words "being a workshop might properly have been omitted. I do not think that the words " being the occupier of certain premises" could properly be omitted, because, even adopting or even assuming Mr. Rowlatt's argument to be sound, if he had not been described as the occupier he certainly ought to have been described under sect. 116 as the employer of certain persons—namely, out-workers. That section only gives power to the Secretary of State to make orders applying the section to a class of persons called out-workers and to the employers of those persons, and it is only by applying the section to the employers of those persons that he makes him liable to a penalty. In this case it is as employer of certain outworkers that the respondent here was alleged to be liable to a penalty. As employer of those persons he was in fact the occupier of a men's workshop. It is found as a fact that he was the occupier of a men's workshop, and as occupier of a men's workshop I think he was exempt from the provisions of Part 7 of the Act, because sect. 157 says that Part 7 of the Act shall not apply to a men's workshop. It is to be observed that Part 7 of the Act only consists of two sections, sects. 116 and 117, and in effect, there fore, it is the same as if the Act had said that sect. 116 shall not apply to a men's workshop. The effect of this order is to make sect. 116 apply to a men's workshop. Whether it does so directly or indirectly is immaterial. I am of opinion that the order was either ultra vires because it does not embrace or does not notice the exception created by the Act in sect. 157, or, if it is not ultra vires, the order does not apply in this case to the respondent, because he was in fact the occupier of a men's workshop and the em. ployer of persons who were out-workers at that moment.

LUSH, J.-I think that the magistrate was right not only in the conclusion at which he arrived, but in the reasons which he gave, and I agree that the appeal should be dismissed.

Appeal dismissed.

Solicitors: Solicitor to the Treasury; J. B. and G. S. Bernstein.

Friday, Jan. 19, 1912.

[K.B. DIV.

(Before PICKFORD, AVORY, and LUSH, JJ.) STEELE (app.) v. ROGERS (resp.). (a) Animal-Stranded whale-Surrounded by peopleWhether in "captivity or close confinement Wild Animals in Captivity Protection Act 1900 (63 & 64 Vict. c. 33), ss. 1, 2.

agency

of

A whale temporarily stranded without the man and surrounded by people" is not in captivity or close confinement" within the meaning of sect. 2 of the Wild Animals in Captivity Protection Act 1900.

CASE stated by justices of the peace for the county of Cornwall on an information preferred by the appellant, an inspector of the Royal Society for the Prevention of Cruelty to Animals, under sect. 2 of the Wild Animals in Captivity Protection Act 1900, against the respondent, for that the respondent on the 1st July 1911 at the parish of Gulval, in Cornwall, did cause unnecessary suffering to a certain animal-to wit, a whale.

At the hearing of the information the following facts were proved or admitted :

On the 1st July 1911 a number of bottle-nosed whales swam in of their own accord and got stranded on the shore of the parish of Gulval, a little to the east of Penzance, and as the tide receded they were left high and dry on the sand. The whales were alive while high and dry on the sand, but owing to the tide having receded they were unable to move or escape, and ali they could do was to flap their tails and move their fins, so that they could not escape, and were completely at the mercy of the people who assembled on the beach in great numbers. The whales would in all probability have remained alive, and, if left on the beach, would have floated off with the incoming tide, but until the tide did return (which was some hours after the acts of the respondent hereinafter referred to) they were by reason of the absence of the water unable to move from the place where they lay and could make no attempt to escape.

The respondent was one of a number of persons who walked about around and amongst the whales whilst the latter were high and dry on the sand, and the respondent caused one of these animals while in this position substantial pain and suffering by cutting it with a knife-i.e., by sticking a clasp knife into the animal's body just below the eye and drawing it down the belly and then in an upward direction towards the back, and thus inflicting a wound some 4ft. or 5ft. in length and about 2in. in depth and causing it to bleed.

In consequence of the state of the tide the animal at the time was incapable of getting away, was at the mercy of the respondent, and could do no more than flap its tail and show by heavy movements of a like kind that it felt the cutting of the knife. It was unable to defend itself against the attack made on it by the respondent.

The whale lived for some time after it was cut by the respondent, and, indeed, was still alive when an hour and a half later the tide returned, soon after which it sank from sight and is supposed to (a) Reported by W. C. SANDFORD, Esq Barrister-atLaw.

It

have died. If the whale had not been interfered with and wounded it would have remained helpless on the beach, and unable to get away until the tide returned, but there was no reason why on the return of the tide it should not have swum away as some of its companions actually did. was also proved to the satisfaction of the justices that whales are sensitive mammals, and that the whale in question must have suffered extreme pain from the treatment received by it from the respondent.

It was submitted on behalf of the respondent, first, that the whale was not in captivity within the meaning of the Wild Animals in Captivity Protection Act 1900 at any time; and, secondly, that the respondent's object and intention had been to kill the whale and put it out of pain, and that it had not been caused unnecessary pain and suffering within the meaning of the Act.

On behalf of the appellant it was submitted that the animal, when high and dry on the sand, completely at the mercy of the crowd of people scattered about the beach, and unable to escape or to protect itself, was an animal in captivity or close confinement within the meaning of the Act.

The justices found as a fact that the whale did undergo unnecessary and substantial pain and suffering, and that the respondent (who had had experience as a slaughterman) had no reasonable ground for supposing that a shallow wound of the foregoing description inflicted with so small a knife would have the effect of killing the whale and putting it out of pain in a reasonable time, and that unnecessary pain and suffering was caused to the whale by the respondent without any justification or excuse and by his unreasonable act. They found further that, although the whale was an animal within the definition contained in the 1st section of the Act, it was not in captivity or close confinement within the meaning of the 2nd section, and that therefore it was not an animal which at the time in question was in any way protected by the statute, and they therefore dismisssed the information.

The question for the opinion of the court was whether the whale was an animal in captivity or close confinement within the meaning of the statute at the time it was so caused unnecessary pain and suffering by the respondent.

The Wild Animals in Captivity Protection Act 1900 (63 & 64 Vict. c. 33) provides:

Sect. 1. The word "animal" in this Act means any bird, beast, fish, or reptile which is not included in the Cruelty to Animals Acts 1849 and 1854.

Sect. 2. Any person shall be guilty of an offence who, whilst an animal is in captivity or close confinement, or is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from such captivity or confinement, shall, by wantonly or unreasonably doing or omitting any act, cause or permit to be caused any unnecessary suffering to such animal; or cruelly abuse, infuriate, tease, or terrify it, or permit it to be so treated.

Stuart Bevan for the appellant. The respon. dent should have been convicted. The whale was "in captivity or close confinement" within the meaning of the section. It could not have been in captivity or confinement to a greater degree than it was, for if it had been placed in a tank or pond it would have had greater freedom than when stranded, hampered, unable to move, and at the mercy of the crowd. It is immaterial that

[K.B. DIV.

the whale became stranded without the agency of man. Surely an ox fallen into a pit, or a fox which has run into a back yard, or a bird which has flown into a room from which there is no escape, would be in captivity. Again, the crowd which surrounded the whale must be regarded as having assumed possession and placed it in captivity. Further, Blackstone (Book 1, cap. 8) includes a stranded whale among royal fish, which are the monopoly of the Crown. Such a whale, like one caught off the coasts within territorial waters, is deemed in law to be reduced into the possession of the Crown. Lastly, Reg. v. Shickle (19 L. T. Rep. 327; L. Rep. 1 C. C. R. 158) decides that partridges hatched and reared by a common hen, while they remain with her, and from their inability to escape are practically under the dominion and in the power of the owner of the hen, may be the subject of larceny. The respondent did not appear.

PICKFORD, J.-I think this appeal must be dismissed,

I regret that it should have to be dismissed, but people who act like the respondent cannot be punished in these cases unless the whales, which were the subject of the cruelty, could be said to be in captivity or else confinement.

What happened was this: These whales unfortunately for themselves came too near in-shore and were left stranded by the tide when it went out; they could not get away because they could not walk or run away, but when the next tide came up they would have gone away, and a good many of them did; those that were not so injured as not to be able to get away did swim out to sea again. Under those circumstances they were in the position that they could not get away temporarily at any rate, but in my opinion they were not in captivity or close confinement within the meaning of the section. I think "in captivity or close confinement" means something more than merely temporarily being unable to get away from the spot upon which they are, and, therefore, I think that these whales were not in captivity or close confinement.

I wish to say, as Mr. Bevan has stated that this case really is proceeded with not altogether in the interests of whales, but in order to be able to deal with cases, some of which he has put to us, that my judgment is confined to this case, and to this case alone, and it must not be taken as being in any way an expression even of my opinion as to what might be done in a great number of instances that have been put before us by Mr. Bevan. In this case I think the whales were not in captivity or close confinement, and, therefore, the appeal must be dismissed.

AVORY, J.-I agree, and for the same reasons. LUSH, J.—I also agree.

Appeal dismissed. Solicitor for the appellant, S. G. Polhill.

COURT OF CRIMINAL APPEAL.

Monday, May 8, 1911.

(Before Lord ALVERSTONE, C.J., PICKFORD and LUSH, JJ.)

REX v. LARKINS. (a)

Person found unfit to plead-Order for detention during His Majesty's pleasure-Right to appeal therefrom-Conviction on indictment-Criminal Appeal Act 1907 (7 Edw. 7, c. 23), s. 3. The applicant was indicted for libel. Before the trial a jury was empanelled to inquire whether he was fit to plead. They found that he was insane and unfit to plead. Thereupon the judge ordered him to be detained during His Majesty's pleasure. Application was made for leave to appeal against that order.

Held, that as the applicant had not been convicted

on indictment within sect. 3 of the Criminal Appeal Act 1907, no appeal would lie.

THE applicant was indicted before the Common Serjeant at the Central Criminal Court for libel. Before the trial the question whether the appli. cant was fit to plead was tried by a jury, who found that he was insane and unfit to plead.

The learned Common Serjeant ordered that the applicant should be detained during His Majesty's pleasure.

Oliver for the applicant.-Leave to appeal against the order is sought upon the ground that the Criminal Appeal Act 1907 was framed to assist those who have been indicted. It is diffi cult to say that the verdict of the jury and order consequent upon it amounts to a conviction within sect. 3 of the Criminal Appeal Act 1907. But an accused person may be mistried upon such an issue, and if he cannot appeal to this court he has no remedy. Substantially the applicant was dealt with under an indictment, and the same result had followed as if he had been found guilty but insane at the time. :

66

Rex v. Ireland, 102 L. T. Rep. 608;

Rex v. Jefferson, 24 Times L. Rep. 877. PICKFORD, J.-In order to show that this court has jurisdiction to entertain an appeal, it must be shown that the appellant is a person who has been convicted on indictment within sect. 3 of the Criminal Appeal Act 1907. The question to be considered here is whether the applicant was convicted on indictment at all. He certainly was never tried on indictment. The only question that was tried was whether the applicant was fit to plead. We do not think there was a conviction within the meaning of sect. 3 of the Act, and the application must therefore be dismissed.

Counsel for the applicant instructed by the Registrar of the Court of Criminal Appeal.

(a) Reported by GERALD DODSON, Esq., Barrister-at

Law

[CRIM. APP.

Saturday, July 29, 1911.

(Before Lord ALVERSTONE, C.J., LAWRANCE, PHILLIMORE, PICKFORD, and HAMILTON, JJ.) REX v. BANKS. (a)

Special plead in bar-Autrefois acquit-Right to plead after plea of not guilty.

The appellant and a woman were charged upon a coroner's inquisition with the murder of a child. The appellant was further indicted for manslaughter. Both prisoners pleaded not guilty to the charges. The prosecution offered no evidence in respect of the murder charge, and the jury were accordingly directed to return a verdict of not guilty. When the jury were sworn to try the charge of manslaughter, counsel for the appellant entered the further plea of autrefois acquit. The jury found against the appellant upon that plea, and then, after trial, found the appellant guilty of manslaughter.

Held, that the appellant could not rely upon the plea of autrefois acquit, inasmuch as such a plea could not be entered when the plea of not guilty still stood upon the record.

AT the Central Criminal Court the appellant and a woman were charged on a coroner's inquisition with the murder of a child. Before the magistrate the case against the woman was dismissed and the charge against the appellant reduced to manslaughter. A separate indictment was preferred against the appellant in respect of this charge. Both prisoners pleaded not guilty when arraigned upon the coroner's inquisition, and the appellant pleaded not guilty to the indictment. No evidence was offered upon the coroner's inquisition and the jury returned a formal verdict of not guilty, and the woman was discharged. The next day the appellant was put up for trial upon the indictment for manslaughter, when his counsel handed in a further plea of autrefois acquit. The prosecution raised no objection, and the jury were sworn to try the appellant upon the additional plea.

The judge directed the jury that there was no evidence to support the plea, inasmuch as the appellant had never been in peril of being convicted of manslaughter. The jury found in accordance with this direction. The appellant was then tried upon his plea of “not guilty” and convicted.

A. S. Carr for the appellant.-"If a man be acquit generally upon an indictment of murder, autrefois acquit is a good plea to an indictment of manslaughter of the same person": (2 Hale's Pleas of the Crown, p. 246). The test to be applied, as defined in Broom's Legal Maxims, 8th edit., p. 274, and Paley on Summary Convictions, 8th edit., p. 168, as to whether a plea of autrefois acquit is a sufficient bar in any particular case is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. It is immaterial whether any evidence is given upon the first indictment or not. Therefore the learned judge ought to have directed the jury to find in the appellant's favour. With regard to his plea of autrefois acquit, the appellant was in peril of being convicted of manslaughter from the moment that he was given (a) Reported by GERALD DODSON, Esq., Barrister-at

Law.

in charge of the jury upon the coroner's inquisition. His rights could not be affected by what the prosecution elected to do. If the prosecution wanted to avoid a plea of autrefois acquit, they should have abstained from taking a verdict upon the coroner's inquisition until after the trial of the indictment. [PHILLIMORE, J.-Surely the appellant ought to have pleaded autrefois acquit first, and then pleaded over to the felony. Had he any right to plead autrefois acquit after he had pleaded not guilty to the indictment? (Archbold's Criminal Pleading, 24th edit., pp. 181, 161.] A plea of autrefois acquit is a plea in bar and not in abatement. It is in this latter case that the special plea must be pleaded first:

Archbold's Criminal Ple ading, 24th edit., p. 170. In this case the appellant had no option. He pleaded autrefois acquit at the first opportunity, which was when he was put upon his trial on the indictment. He was obliged to plead "not guilty" when first arraigned, because the coroner's inquisition had not then been disposed of.

a

Travers Humphreys for the Crown.-As general rule, a defendant cannot plead two pleas unless allowed to do so by statute.

Lord ALVERSTONE, C.J. (after stating the facts). The appellant now appeals against his conviction, and it has been argued on his behalf that the plea of autrefois acquit ought to have succeeded. It is said that upon the charge of murder on the coroner's inquisition the appellant might have been convicted of manslaughter; and that, having been in peril on that charge and acquitted, the plea was good. This is, of course, a point of the highest technicality, because, if the prosecution had anticipated it, they doubtless would have elected to proceed with the indictment for manslaughter first. The point being an extremely technical one may properly be met by a technical answer. It has been pointed out that the appellant was not entitled to add a plea of autrefois acquit to his plea of not guilty upon the indictment for manslaughter. The proper course to pursue, where a defendant desires to avail himself of the double defence, is indicated in 1 Chitty's Criminal Law, 2nd edit., p. 460, and Archbold's Criminal Plead. ing, 24th edit., p. 181.

In our opinion, according to well-established rules of criminal pleading, a defendant, having pleaded not guilty to an indictment, is not entitled, while that plea is standing, to have a plea of autrefois acquit put upon the record. In this case it is true that the learned judge directed the clerk of the court to take the plea, but no question was raised as to the learned judge's discretion in the matter, and therefore it may be taken that there was no question of any exercise of discretion.

We decide this case upon the ground that the appellant was not entitled to put the plea of autrefois acquit upon the record at the stage of the proceedings at which he pleaded it. It seems doubtful, though we express no opinion upon it, whether, under any circumstances, double pleas can be allowed apart from statutory authority.

Upon the point argued before us as to whether the appellant was ever in peril of being convicted of manslaughter and was entitled upon that ground to succeed upon the plea of autrefois

[CRIM. APP.

acquit we express no opinion. So far as we have heard, there does not seem to be any authority for the application of that doctrine where there has not been a trial upon the facts, but we express no opinion upon it, because the question may arise again, and this court may have to consider further as to whether effect should be given to such a contention. It seems to us that there was no miscarriage of justice within the meaning of sect. 4 (1) of the Criminal Appeal Act 1907, and this appeal must therefore be dismissed.

Appeal dismissed.

Counsel for the appellant instructed by the Registrar of the Court of Criminal Appeal. Counsel for the Crown instructed by the Director of Public Prosecutions.

Monday, Oct. 23, 1911.

(Before DARLING, COLERIDGE, and HAMILTON, JJ.)

REX v. HILL. (a)

Felonious wounding-Defence not left to the jury→ Miscarriage of justice.

Upon an indictment for felonious wounding, the appellant was found guilty, but insane. At the trial the appellant, who was undefended, pleaded that what he did was done in self-defence. The only question which the judge left to the jury was whether the appellant was insane. Held, that the appellant's defence, however weak, should have been left to the jury; that failure to so leave it amounted to a miscarriage of justice; and that, therefore, the conviction must be quashed.

THE appellant was indicted before the recorder at the Central Criminal Court on a charge of felonious wounding. He was not represented by counsel, and, while admitting the wounding, contended that it was inflicted in self-defence. In the course of the trial the recorder introduced the suggestion that the appellant was insane at the time he committed the wounding. Neither the appellant nor the prosecution had raised the point, and neither relied upon it. In summing up, the only question the recorder left to the jury was whether the appellant was insane or not at the time of the wounding. The jury found the appellant guilty of the offence charged against him, but insane at the time he committed it.

Oddie for the appellant.-The appeal is against that part of the jury's verdict which finds the appellant guilty of the offence charged. There can be no appeal against the verdict of insanity: Rex v. Machardy (105 L. T. Rep. 556). At the trial a police constable gave evidence on behalf of the prosecution to the effect that he saw the appellant behaving in a very peculiar way in the street at an early hour of the morning; that he went up to the appellant and spoke to him, and that the appellant, who was a man of colour, immediately produced an awl and stabbed him. The appellant's version of the affair was that he was looking at some advertisements when the constable came up to him, told him to move on, and struck him a blow. He was not invited to give (a) Reported by GERALD DODSON, Esq., Barrister-at

Law.