What is an entry within the statute.

Of the intent

the close laid

in the indictment.

ting nets in the hedge-row of the yew tree piece, they being on the other side in a turnpike road, and Nickless went into another field; Powell and Owen sent a dog into the yew tree piece, which drove a hare into one of the nets; it was held that the case was not within the statute, as Nickless was independently engaged in poaching in the field, he having left the others poaching in the road. (c)

A difference of opinion also exists as to what constitutes an entry within the meaning of this statute. It has been held that if persons standing in a road hang nets on the twigs of a hedge within a close, it is an entry within sec. 9. Some poachers standing in a lane spread their nets upon the twigs of a hedge, which separated the lane from the close; Alderson, B., said, " I shall tell the jury that if they are satisfied that, in effecting a common purpose by all the defendants, the nets were hung upon the twigs of the hedge so as to be within the field, it was an entry. Lord Ellenborough, C. J., in Pickering v. Rudd, (d) stated that he had once held that firing a gun loaded with shot into a field was a breaking of the close, and I am of opinion that if these defendants so placed the nets within the field it was an entry by them all." (e) But in a similar case it was held that if persons standing in a road set nets in the hedge-row of an adjoining field, and send a dog into the field to drive game into the nets, this is not an entering of land within section 9. Poachers were seen setting nets in the hedge-row of a field, they being on the other side of the hedge in a turnpike-road, they also sent a dog into the field, which drove a hare into one of the nets; it was contended that the sending of the dog into the field to drive the hares into the nets was, in point of law, an entering into the field; but it was held that it would be straining the words too much in a criminal case to hold that this was within the statute. (ƒ)

If the indictment state that the defendants entered into a certain to kill game in close with intent, then and there, to kill game, it must be proved that the defendants had the intent to kill game in the particular close named. Thus, where upon an indictment under the repealed statute so laying the intent, the jury found that the defendant was still in pursuit of game, but they could not say whether in the close specified or elsewhere; the judges held that as the entry, with intent to kill game, was confined by the indictment to the close specified, it was necessary to prove the intent as to that close. (g) And upon a similar indictment under the new act, where it appeared that the prisoners were seen in the field laid in the two first counts, but it was not shown that they were doing any act tending to the destruction of game in it; and it rather seemed that they were merely crossing it in their way from one wood to another; Parke, B., held

affords a similar argument. Suppose three
poachers went, with intent to take game, to
a park wall, too high for them to get over,
and one, in the presence of the others, in-
troduced his hand through a hole left for
hares at the bottom of the wall, and set a
snare within the park, could it be fairly
contended that this was an entry by all
armed into the park within sec. 9?

On the whole it is submitted that Mr.
J. Patteson's construction of the statute is
correct, and that there must be an entry of
the whole person by three persons into the

close to bring the case within sec. 9, and that none are within that section except those who actually enter the close. C. S. G. (c) Reg. v. Nickless, 8 C. & P. 757, Patteson, J.

(d) 1 Stark. N. P. C. 56. 4 Camp. 219.

(e) Athea's case, 2 Lewin, 191. (f) Reg. v. Nickless, supra, note (c) see note (b), ante, p. 476.

(g) Rex v. Barham, R. & M. C. C. R.

151.

So

that the first two counts made it necessary to show that the prisoners were in the field laid for the purpose of killing game there. (h) where on a similar indictment for entering Breadstone plantation, it appeared that a gun was heard about a quarter of a mile from the plantation, and the prisoners were seen in the plantation with a gun, and there were many pheasants roosting in the plantation, which the prisoners must have seen, but they did not fire at any of them. Coleridge, J., said, in summing up, "You must say whether these persons were in this particular covert with an intent to kill game there. If you can suppose that they had gone out on that night poaching in every other covert in the county, that will not be sufficient to support the charge contained in this indictment, if they were not in this particular covert with intent to destroy game there. It lies on the prosecutor to make out to your satisfaction that the prisoners had an intent to kill game in this particular covert; the intent can in this case only be inferred from the conduct of the parties, and it is here shown that there was game which the defendants must have seen, but did not make the slightest attempt to destroy." (i)

A doubt is stated in the marginal note of Rex v. Barham, (ii) whether it is necessary that the defendant should have such an intent in the place in which he is found armed, unless it be so stated in the indictment, and Rex v. Worker (k) is referred to, but in that case, although the indictment was general, no such question arose; and it should seem that whether the words "then and there" be in the indictment or not, the entry into the close must be proved to be with intent to kill game in such close, for unless such be the case the entry was made into that close, not with intent to kill game, but with some different intent, as, for instance, to pass over it. And where it appeared that the prisoners were in Shutt Leasowe, a place named in the indictment, and which adjoined Short Wood, and were apparently going to the wood, Mr. J. Patteson said, "the intent was evidently to kill game in the wood, into which none of the parties ever got for that purpose; it is true that they are charged with being in Shutt Leasowe, but they had no intention of killing game there; they must be acquitted." (?)

The indictment must in some way or other particularize the place; The indictment for the defendant has a right to know to what specific place the must particuevidence is to be directed: and stating that in the parish of A. the larize the close. party entered into a certain close there, was held not sufficient under the repealed statute. The first count of an indictment stated, that the defendant, at the parish of Whitford, in the county of Northumberland, having entered into a certain close there situate, with intent there illegally to kill game, was there found at night armed with a certain gun; and the second count charged him in like manner with having entered into a certain inclosed ground: but neither the close nor the inclosed ground were described by name, ownership, occupation, or abuttals. And upon a case reserved, Abbott, C. J., Holroyd, J., and Park, J., thought any such description unnecessary; (h) Rex v. Capewell, 5 C. & P. 549. (i) Rex v. Gainer, 7 C. & P. 231. (ii) R. & M., C. C. R. 151.

(k) R. & M., C. C. R. 165.

(1) Reg. v. Davis, 8 C. & P. 759. It does not appear whether the indictment

had the words "then and there" in it; but
whether it had or not the observations of
the very learned judge appear to have been
made generally, and without any reference
to the form of the indictment.

A variance in the name

but Burrough, J., Garrow, B., Best, J., Hullock, B., and Bayley, J., thought otherwise, because this was substantially a local offence, and the defendant was entitled to know to what specific place the evidence was to be directed; and the judgment was arrested. (m) So it has been held under the new statute that an indictment for entering "a covert in the parish of A." is too general. (n) But it has been held sufficient to allege that the defendants entered certain land in the occupation of a person named, without stating whether the land was inclosed or not. (0)

If the name of the close be stated in the indictment, and the name be misstated, it is fatal. An indictment alleged that the defendants stated is fatal. entered a certain wood called "The Old Walk," in the occupation of the Earl of Waldegrave; it appeared that the wood had always been called "The Long Walk," and, upon a case reserved, the judges held the variance was fatal. (p)

The indictment must

an entry by

night, but an arming by night.

The indictment must allege not only an entry by night, but an arming by night. An indictment alleged that the defendants did allege not only by night unlawfully enter divers closes and enclosed lands, and were then and there in the said closes and lands, armed with guns for the purpose of then and there taking and destroying game; it was objected that the words " then and there" did not mean that the defendants were there by night, but only on the day, and at the place aforesaid; and it was held that the indictment was bad. If the words "by night" had occurred at the beginning of the sentence, they might have governed the whole, or if they had been at the end of the sentence they might have referred to the whole; but here they are in the middle of the sentence, and are applied to a particular branch of it, and cannot be extended to that which follows. The

(m) Rex v. Ridley, T. T. 1823. Russ. & R. 515.

(n) Rex v. Crick, 5 C. & P. 508. Vaughan, B. It is very usual to describe the close simply as belonging to A. B., especially after describing it by name and occupation in previous counts. In some cases this may lead to inconvenience to the prisoner, and as it applies equally to every close belonging to A. B., who may be the owner of a large number of closes, it admits of doubt whether such a description be not insufficient, and the more so, as it is very possible that the grand jury may have found the bill, because they considered the offence proved as to one close, and the petit jury may convict, because they think the offence proved as to a different close. The first count charged the entry into the Nineteen Acres, the second into the same close in the occupation of a person named, the third into inclosed land belonging to Sir R. Peel. The prisoners were seen crossing the Nineteen Acres in the direction from a wood, in which shots had been previously heard, towards a wood on the other side of the Nineteen Acres. The whole belonged to Sir R. Peel. There was no evidence that the prisoners were in pursuit of game in the Nineteen Acres; and as the case had been conducted on the part of the prosecution, as if the charge related to the Nineteen Acres only, in addressing the jury I only adverted to the evidence applicable to that close, and

contended, that the prisoners were entitled to be acquitted, as they were not proved to have entered that close for the purpose of poaching; and Mr. B. Parke held that was so as to the two first counts, but that the third was applicable to the wood, from which the prisoners were coming, and on this count the prisoners were convicted. Rex v. Capewell, 5 C. & P. 549. Now, there can be little doubt that the third count was inserted to prevent an acquittal, on the ground of variance in the description in the two first counts, and was intended to apply to the Nineteen Acres, and equally little doubt that the grand jury found the bill with reference to the Nineteen Acres only. In all cases where the close is described in general terms, it would be prudent to apply for a particular of the close in which the offence is intended to be proved, which I apprehend the Court would order to be delivered, as it is the usual course in all cases, where an indictment is so general as not to afford the defendant sufficient information. See ante, p. 330. C. S. G.

(0) Rex v. Andrews, 2 M. & Rob. 37. Gurney, B. Sed quære.

(p) Rex v. Owen, R. & M., C. C. R. 118, decided upon the 57 Geo. 3, c. 90. The marginal note adds that, "it is not necessary where the name of the owner or occupier of the close is stated, to state the name of the close also." The case itself, however, contains no such point. C. S. G.

two members of the sentence are distinct; the first states the entry into the closes by night, but does not state that the defendants were armed, or the intent with which they entered; the second branch states, that they were in the closes armed, for the purpose of destroying game, but does not state that they were there by night. Neither of those branches of the sentence contains all that is requisite to constitute an offence within the statute, and the two being distinct the indictment is bad. (q)

The indictment need not contain any specific allegation that the defendants entered the close between the expiration of the first hour after sunset and the beginning of the last hour before sunrise, the period which, by the 12th section of the statute it is provided, shall be considered night. (r)

The indictment may contain counts not only on the 9th section, but also on the 2nd, for assaulting a gamekeeper authorized to apprehend, for assaulting a gamekeeper in the execution of his duty, and for a common assault (s), and if there be any doubt as to the number of persons not amounting to three, or the proof of their being out in pursuit of game, it certainly would be prudent to add such counts in all cases where an assault has been committed. Where an indictment, after stating the entry into the land by night, proceeded thus, the defendants "being then and there by night as aforesaid armed with a gun;" and it was objected that this averment was not sufficient, because "then" meant only the day and year aforesaid, and not the time of the entry; Mr. B. Parke said, he would leave the defendants to their writ of error, but advised the insertion of the words, "at the time when they so entered," in such indictments in future. (t) Where an indictment alleged, that the defendants did enter, and were in certain land, they "being then and there by night as aforesaid armed with guns, and other offensive weapons," and it was objected that the indictment did not contain any sufficient allegation that the defendants were armed when they entered the land; it was held, that the indictment was sufficient, as all the requisites of the statute had been complied with. (u) Where there was one indictment for shooting at a gamekeeper with intent to murder him, and another indictment for night poaching, both founded on the same transaction, it was held, that the prosecutor was not bound to elect which he would proceed upon, as the offences were quite distinct, and one of them could not possibly merge in the other. (v)

(q) Davies v. Rex, 10 B. & C. 89. The following objections were also taken, but not adverted to by the Court: 1st, that the hour of the night ought to have been stated; 2ndly, that it was not stated that the defendants unlawfully were in the closes for the purpose of destroying game; 3rdly, that it was not stated that the defendants were there together for the purpose of destroying game; and 4thly, that the indictment stated that they entered "divers closes" without specifying any

in

particular.

(r) Riley's case, 1 Lewin, 149, Parke, B. Pearson's case, ibid., 154, Gurney, B.

(s) Rex v. Finacane, 5 C. & P. 551, and MS. C. S. G. Parke, B. Rex v. Simpson, Stafford Spr. Ass. 1830, Bolland, B. MS. C. S. G.

(t) Rex v. Wilks, 7 C. & P. 811. (u) Rex v. Kendrick, 7 C. & P. 184, and MS. C. S. G. Coleridge, J. (v) Rex v. Handley, 5 C. & P. 565, Parke, B.

BOOK THE THIRD.

OF

OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

CHAPTER THE FIRST.

Definition of the crime.

gitata, or ma

lice prepense.

OF MURDER.

MURDER is the killing any person under the King's peace, with malice prepense or aforethought, either express or implied by law. (a) Malitia praco- of this description the malice prepense, malitia præcogitata, is the chief characteristic, the grand criterion by which murder is to be distinguished from any other species of homicide; (b) and it will therefore be necessary to inquire concerning the cases in which such malice has been held to exist. It should, however, be observed, that when the law makes use of the term malice aforethought as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief. (c) And in general any formed design of doing mischief may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed; but also, in many other cases, such killing as is accompanied with circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. (d)

or implied.

Express

Malice may be Malice may be either express or implied by law. either express malice is, when one person kills another with a sedate deliberate mind and formed design: such formed design being evidenced by external circumstances, discovering the inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. (e) And malice is implied by law from any deliberate cruel act committed by one person

(a) 3 Inst. 47, 51. 1 Hale, 424, 448, 449. 1 Hawk. P. C. c. 31, s. 3. Kely, 127. Fost. 256. 2 Lord Raym. 1487. 4 Blac. Com. 198. 1 East, P. C. c. 5, s. 2, p. 214.

(b) 4 Blac. Com. 198. Gastineaux's

case, 1 Leach, 417.

(c) Fost. 256, 262.

(d) 1 Hawk. P. C. c. 31, s. 18. Fost. 257.

1 Hale, 451 to 454.