with other persons, to the number | inclosed land, with certain instruments, for the purpose of killing, taking and destroying game thereon, this being his second offence, and was then adjudged to be imprisoned for six calendar months, is good, as it sufficiently shews upon the face of it, that two previous convictions of offences within the terms of the act had taken place. Cureton v. Reg. (in error), 1 B. & S. 208; 8 Cox, C. C. 481; 30 L. J., M. C. 149; 9 W. R. 665.

of three or more, entered by night a certain close with guns and other offensive weapons, for the purpose of taking and destroying game, and then proceeded to allege that the defendants being then and there in the said land, were found by one H. S., the servant of B. W. W., and there with the said guns assaulted and beat the said H. S. :-Held, that the count was defective for not alleging that the defendants were in the close armed with guns, &c., according to the language of sect. 9 of 9 Geo. 4, c. 69. Reg. v. May, 5 Cox, C. C. 176-Patteson.

An indictment charged A., B. and six others, "that they, being respectively armed with guns and other offensive weapons, entered." A. and B. were each proved to have been armed with a gun, the other six with bludgeons. Objection, that the averment, "other offensive weapons, (not specifying what) made the arming of the other six only constructive, which was not sufficient to bring them within the statute:-Held, good. Reg. v. Goodfellow, 1 Den. C. C. 81; 1 C. & K.

724.

4. Evidence.

On an indictment for wounding with intent to prevent lawful apprehension, it was proved that the prisoners were found poaching in the night, armed, in a preserve which had belonged to the Earl of L., and then was in the possession of the earl's trustees. The person trying to apprehend was a watcher employed by the head keeper, the latter having been appointed by the earl some twenty years before, and paid by his agent down to the time of the trial; but the head keeper had never had any direct communication with the trustees :-Held, sufficient proof of an authority to apprehend. Reg. v. Fielding, 2 C. & K. 621-Cresswell.

Where A. was indicted for night poaching on the land of the prosecutor, which land was in the occupation of a tenant:-Held, that it was not necessary, in order to support the indictment, to shew by evidence that A. was there without the permission of the tenant, or of the prosecutor, if the right to take game upon the land had been reserved to him. Reg. v. Wood, Dears. & B. C. C. 1; 2 Jur., N. S. 478; 25 L. J., M. C. 96.

An indictment under 9 Geo. 4. c. 69, s. 1, that on the 20th of December, 1854, C. was convicted for that he, within the space of six calendar months last past, by night, after the expiration of the first hour after sunset; and before the beginning of the first hour before sunrise, did, by night, then and there unlawfully enter a close with a gun, for the purpose of then and there taking and destroying game, and that he was then sentenced to be imprisoned for the period of three calendar months; that afterwards, to wit, on the 27th of November, A. D. 1858, An indictment under 9 Geo. 4, c. he was duly convicted, for that he, 69, charged, that the prisoners, within six calendar months next be-" were in the Great Ground on the fore, &c., to wit, on the 24th of 11th February, armed, with intent, November, 1860, in the night of the then and there to take game." The same day, by night, unlawfully did evidence shewed that the prisoners enter and be in and upon certain were all seen, for the first time, in

the prisoner is not bound, nor is it his duty, to bring the conviction before the court. Ib.

On an indictment for night poaching, having been twice summarily convicted, the convictions produced contained no allegation that the defendant had entered at night:Held, insufficient evidence of a previous conviction. Reg. v. Merry, 2 Cox, C. C. 240-Maule.

:

the Great Ground, employed in taking down two nets; after this was done they picked up some dead hares, which were lying on the ground near the nets, and hanging them on long sticks over their shoulders, walked homewards with them. It also appeared that they had dogs with them in the Great Ground-Held, that the questions for the jury were, first, whether they were in the Great Ground with the intent to take game at that time, and that such intent might be By 24 & 25 Vict. c. 96, s. 17, inferred from the presence of the "whosoever shall unlawfully and nets and dogs, though they might "wilfully, between the expiration have taken the hares elsewhere. " of the first hour after sunset, and Reg. v. Turner, 3 Cox, C. C. 304—" the beginning of the last hour be Rolfe. "fore sunrise, take or kill any hare

6. Hares or Rabbits.

or rabbit in any warren or ground "lawfully used for the breeding or "keeping of hares or rabbits, wheth

Held, also, that the allegation that they were armed could not be sustained, unless the jury should be of opinion that they took the sticks"er the same be inclosed or not, for the double purpose of carrying "shall be guilty of a misdemeanor. away the game, and of attack or defence in the event of their being interrupted by keepers while in the pursuit of game. Ib.

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And whosoever shall unlawful"ly and wilfully, between the be"ginning of the last hour before "sunrise and the expiration of the "first hour after sunset, take or kill 5. Convictions and Commitments." any hare or rabbit in any such A conviction under 9 Geo. 4, c. warren or ground, or shall at any 69, s. 1, must allege that the de-" time set or use therein any snare fendants, by night, were in certain" or engine for the taking of hares land for the purpose of taking game or rabbits, shall, on conviction in such land. Fletcher v. Calthorp," thereof before a justice of the 1 New Sess. Cas. 529; 9 Jur. 205; peace, forfeit and pay such sum 14 L. J., Q. B. 49. of money, not exceeding 57., as to "the justice shall seem meet; pro

66

66

66

A warrant of commitment, reciting an order of sessions confirm-"vided that nothing in this section ing a conviction under 9 Geo. 4, c. "contained shall affect any person 69, s. 1, ordering the prisoners, at "taking or killing in the daytime the expiration of their time of im- " any rabbits on any sea bank or prisonment, to find sureties not to "river bank in the county of Linoffend again, instead of not so to coln, so far as the tide shall exoffend again, is ill. Reynolds Extend, or within one furlong of such parte, 8 Jur. 192; 13 L. J., M. C. 65" bank." (With the exception of the -B. C.-Wightman. substitution of defined hours for "night time" and "day time,' ilar to former provision, 7 & 8 Geo. 4, c. 29, s. 30.)

The court will presume that the commitment contains a true recital of the conviction; therefore, where the certiorari is taken away, and the prosecutor seeks, under sect. 7, to avail himself of the conviction to cure a defect in the commitment,

"sim

7 & 8 Geo. 4, c. 27, repealed 3 Jac. 1, c. 13; 7 Jac. 1, c. 13; 5 Geo. 3, c. 14; and so much of 22 & 23 Car. 2, c. 25, as related to this

subject; and 24 & 25 Vict. c. 95, | considered to be good :--Held, that repeals 7 & 8 Geo. 4, c. 29, s. 30, the object of the publisher did not and 7 Will. 4 & 1 Vict c. 90, s. 5. alter the character of his act, the Taking a rabbit in a wire was natural consequence of which he sufficient to constitute an offence must be taken to have intended, and within 5 Geo. 3, c. 14, s. 6, the natural consequence being one though the rabbit was not killed, which would make the publication and though the party never took it of the pamphlet a misdemeanor, and away. Rex v. Glover, R. & R. C. in the opinion of the justices who C. 269. ordered the seizure proper to be prosecuted as such, the seizure was right. Reg. v. Hicklin, 16 W. R. 801; 37 L. J., M. C. 89; 3 L. R., Q. B. 360; 11 Cox, C. C. 19; S. C. nom. Reg. v. Wolverhampton (Recorder), 18 L. T., N. S. 395.

Destroying rabbits in the night time, in a rick-yard in which they were kept, was not within 7 & 8 Geo. 4, c. 29, s. 30. Rex v. Garratt, 6 C. & P. 369-Patteson.

XXV. OBSCENITY AND INDECENCY.

1. Obscene Prints and Pictures, 393.
2. Indecent Exposure, 393.

1. Obscene Prints and Pictures. 20 & 21 Vict. c. 83," provides "additional powers for the suppres"sion of the trade in obscene books, "prints and pictures."

It is a misdemeanor to procure indecent prints with intent to publish them. Dugdale v. Reg. (in error), 1 El. & Bl. 435; Dears. C. C. 64; 17 Jur. 546; 22 L. J., M. C. 50.

But to preserve and keep them in possession with such intent, is not. Ib.

2. Indecent Exposure.

(2 & 3 Vict. c. 47, s. 58.) Bathing in the sea on the beach near inhabited houses, from which the person may be distinctly seen, is an indictable offence, although the houses may have been recently erected, and till then it may have been usual for men to bathe in great numbers at the place in question. Rex v. Crunden, 2 Camp. 89-Macdonald.

An indecent exposure in a place of public resort, if actually seen only by one person, no other person being in a position to see it, is not a common nuisance. Reg. v. Webb, 1 Den. C. C. 338; 3 Cox, C. C. 183; T. & M. 23; 2 C. & K. 933; 13 Jur. 42; 18 L. J., M. C. 39. S. P., Reg. v. Watson, 2 Cox, C. C. 376.

The sale of an obscene print to a person in private, he having in the An averment in an indictment, first instance requested that such" in the sight and view of B.," does prints should be shewn to him, his not mean that B. actually saw it, object being to prosecute the seller, but only that he might have seen it is a sufficient publication to sustain had he chanced to look. Ib. the charge. Reg. v. Carlile, 1 Cox, C. C. 229.

Obscene Books and Publications.] Copies of a pamphlet of an obscene nature were seized under 20 & 21 Vict. c. 83. The publisher did not keep or sell the pamphlet for the sake of gain, nor to prejudice good morals, but for a purpose which he

A party was indicted for an indecent exposure in an omnibus, several passengers being therein. The indictment contained two counts; one laid the offence as having been committed in an omnibus, and the other in a public highway :-Held, that an omnibus was sufficiently a public place to sustain this indictment. Reg. v. Holmes, Dears. C. C. 207; 3

C. & K. 360; 17 Jur. 562; 22 L. | posure, charging the offence to have J., M. C. 122; 6 Cox, C. C. 216.

An indictment for this offence, which does not conclude ad commune nocumentum, is aided by 14 & 15 Vict. c. 100, s. 25. Ib.

An indictment charged two defendants with indecent exposure of their persons in an open and public place:-Held, that an urinal with boxes or divisions for the convenience of the public, and situated in an open market, was not a public place within the meaning of the allegation. Reg. v. Orchard, 3 Cox, C. C. 248.

An indictment alleging that A. "in a certain open and public place did lay his hands on the person and private parts of B. with intent to stir up in his own and B.'s mind unnatural and sodomitical desires and inclinations, and to incite B. to the committing and perpetrating with A. divers unnatural and sodomitical acts, and that B. in the said open and public place, did permit and suffer A. to lay his hands, &c., with the like intent," is bad, as not stating any offence with legal certainty. Ib.

In order to render a person liable to an indictment for indecently exposing his person in a public place, it is not necessary that the exposure should be made in a place open to the public. If the act is done where a great number of persons may be offended by it, and several see it, it is sufficient. Reg. v. Thallman, 9 Cox, C. C. 388; L. & C. 326; 12 W. R. 88; 9 L. T., N. S. 425; 33 L. J., M. C. 58.

Where a man exposed himself indecently on a roof at the back of a house in London, so as to be visible to persons in the back premises of many other houses, but not so as to be capable of being seen from any place open to the public, and seven persons in one house saw the exposure, the conviction was held good. Ib.

been committed on a highway, is not sustained by evidence that the offence was committed in a place near the highway, though in full view of it. Reg. v. Farrell, 9 Cox, C. C. 446.

An indecent exposure seen by one person only, and capable of being seen by one person only, is not an offence at common law. Secus, if there are other persons in such a situation as that they may be witnesses of the exposure. Ib.

The prisoners committed fornication in open day, on a common, in the sight of one witness only, but so that any one passing over the common, or along a public footway adjacent, could have seen them. There was no proof that any persons were passing over the common or along the footway at the time. Quære, whether this was an indictable of fence? Reg. v. Elliott, L. & C. 103.

An indictment for an indecent exposure of the person before one J. S., with the intent to provoke him to commit an unnatural crime, which had been removed by the defendant by certiorari, is not within s. 23 of 7 Geo. 4, c. 64, so as to enable the court before whom it is tried to grant the costs of the prosecution. Reg. v. 3 N. & P. 627; 8 A. & E. 589.

A person is indictable for a common nuisance by indecently exposing his person in a public place, though the exposure is made in a place not open to the public, if the act is done where a great number of persons may be offended by it, and several see it. Reg. v. Mallam, 33 L. J., M. C. 58.

A herbalist, who publicly exposes and exhibits in his shop, on a highway, a picture of a man naked to the waist and covered with eruptive sores, so as to constitute an exhibition offensive and disgusting, is guilty of a nuisance, although there is nothing immoral or indecent in the An indictment for indecent ex-picture, and his motive was inno

1

cent. Reg. v. Grey, 4 F. & F. 73" by a grand jury unless preferred -Willes. "without previous authorisation." Bathing near a public footway, By 14 & 15 Vict. c. 99, s. 16, frequented by females, is unlawful," every court, judge, justice, officer, and renders the party so bathing" commissioner, arbitrator or other liable to be indicted for indecency. person now (1851) or hereafter Nor is it any defence that the place having by law or by consent of has been always used as a resort for " parties, authority to hear, receive bathers; or that the exposure has" and examine evidence, is empownot been beyond what is necessarily "ered to administer an oath to all incident to such bathing. Reg. v. "such witnesses as are legally called Reed, 12 Cox, C. C. 1. "before them respectively."

An indictment charged two defendants with indecent exposure of their persons in a public place, the same being a public urinal:-Held, that the urinal was a public place, and that the commission of the indecency therein was indictable. Reg." acts of Parliament, each relating v. Harris, 11 Cox, C. C. 659.

5 Eliz. c. 9, made perpetual by 29 Eliz. c. 5, s. 2, and 21 Jac. 1, c. 28, s. 8; 2 Geo. 2, c. 25, made perpetual by 9 Geo. 2, c. 8; 7 Will. 4 & 1 Vict. c. 23.-" There is a great num"ber of perjury clauses in various

"to the oaths respecting the subject matter of those acts respectively."

To found an indictment for perjury, the requisite circumstances are these the oath must be taken in a judicial proceeding before a competent jurisdiction; and it must be material to the question depending and false. Rex v. Aylett, 1 T. R. 63.

With respect to the falsity of an oath, it has been considered to be immaterial whether the fact which is sworn to be in itself true or false. Rex v. Edwards, 3 Russ. C. & M. 1.

A man may be indicted for swearing that he believes a fact to be true which he must know to be false, although he does not swear positively. Rex v. Pedley, 1 Leach,

C. C. 325.

Falsehood, not strictly amounting to perjury, is an indictable offence as a misdemeanor. Ex parte Overton, 2 Rose, 257.

Inciting a witness to give particular evidence when the inciter does not know whether it is true or false, is a high misdemeanor, especially if he being an attorney on one side, gets himself employed for that purpose on the other side: at least, if the evidence is given accordingly. Ib.

Semble, that taking a false oath before a court-martial is perjury at