county of Essex for unlawfully carrying away a deer, and that afterwards he feloniously and unlawfully did offend a second time by feloniously aiding in killing a deer. The conviction was made by a magistrate of Essex at a place in Middlesex, and was a conviction of the prisoner and three other persons. The offence was committed in Essex. It was objected, 1st, that the indictment did not state that the prisoner was duly convicted; 2ndly, that he was not duly convicted, as the conviction was in Middlesex; 3rdly, that the conviction was of four, whereas it was stated in the indictment as of the prisoner only. And, on a case reserved, the Judges held that the prisoner ought not to have been convicted of the felony. (b) The 27th section of the same statute enacts, "that if any deer, or the head, skin, or other part thereof, or any snare or engine for the taking of deer, shall by virtue of a search warrant, to be granted as hereinafter mentioned, be found in the possession of any person, or on the premises of any person, with his knowledge, and such person, being carried before a justice of the peace, shall not satisfy the justice that he came lawfully by such deer, or the head, skin, or other part thereof, or had a lawful occasion for such snare or engine, and did not keep the same for any unlawful purpose, he shall, on conviction by the justice, forfeit and pay any sum not exceeding twenty pounds; and if any such person shall not, under the provisions aforesaid, be liable to conviction, then for the discovery of the party who actually killed or stole such deer, it shall be lawful for the justice, at his discretion, as the evidence given, and the circumstances of the case shall require, to summon before him every person through whose hands such deer, or the head, skin, or other part thereof, shall appear to have passed; and if the person from whom the same shall have been first received, or who shall have had possession thereof, shall not satisfy the justice that he came lawfully by the same, he shall, on conviction by the justice, be liable to the payment of such sum of money as is hereinbefore last mentioned." By sec. 28, "if any person shall unlawfully and wilfully set or use any snare or engine whatsoever, for the purpose of taking or killing deer, in any part of any forest, chase, or purlieu, whether such part be inclosed or not, or in any fence or bank dividing the same from any land adjoining, or in any inclosed land where deer shall be usually kept, or shall unlawfully and wilfully destroy any part of the fence of any land where any deer shall be then kept, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay such sum of money, not exceeding twenty pounds, as to the justice shall seem meet." By sec. 29, "if any person shall enter into any forest, chase, or purlieu, whether inclosed or not, or into any inclosed land where deer shall be usually kept, with intent unlawfully to hunt, course, wound, kill, snare, or carry away any deer, it shall be lawful for every person intrusted with the care of such deer, and for any of his assistants, whether in his presence or not, to demand from every such offender any gun, fire-arms, snare, or engine in his possession, and any dog there brought for hunting, coursing, or killing deer, and in case such offender shall not immediately deliver up the same, to seize and take the same from him in any of those respective places, (b) Rex v. Allen, Russ. & Ry. 513. The reporters add the second objection was probably considered fatal. Sec. 27. Suspected persons session of venison, &c., and not satiscounting for it found in pos factorily ac In case they cannot be conthe justice may proceed. victed, how Sec. 28. Setting engines for taking deer, or pulling down park fences. Sec. 29. Deer- seize the guns, not deliver up the same. Resistance to keepers, &c., in the execution of their duty. Apprehension of offenders. or, upon pursuit made, in any other place to which he may have escaped therefrom, for the use of the owner of the deer; and if any such offender shall unlawfully beat or wound any person intrusted with the care of the deer, or any of his assistants, in the execution of any of the powers given by this act, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny." (b) By the express words of this section a demand must be made of the gun, &c., before a seizure; the 16 Geo. 3, c. 30, s. 9, (now repealed) authorized persons entrusted with the care of deer to seize any gun, &c., brought by any person with intent unlawfully to shoot deer, without making a previous demand necessary; but it was held upon that statute that an assistant keeper had no right to seize the person of one so armed, in order to get his gun, without having first demanded the gun. On an indictment under the 16 Geo. 3, c. 30, s. 9, for assaulting one Barrett in the execution of his office as assistant keeper of Cranbourne Chase, it appeared that Barrett saw the prisoner in the Chase with a gun in his hand running; he pursued him, and called out that if he did not stop he would knock him down, and threw a stick at him, but it did not appear that the stick hit him. When he arrived within twenty yards of the prisoner he turned round, and presenting his gun at Barrett threatened to blow his brains out if he came any nearer. On Barrett still advancing the prisoner ran on, until Barrett came within four or five yards of him, when he again put his gun to his shoulder, pointed it towards Barrett, and threatened as before. Barrett, however, still advanced, and put out his hand to catch hold of the prisoner, his intention being to take both his gun and his person, when the prisoner, seizing the barrel of his gun, struck Barrett with the butt end a violent blow on the head, which knocked him down and stunned him. Upon a case reserved, the Judges were unanimous that as the keeper had no right to seize the person in order to get the gun, unless he had first demanded the gun, he was not duly in the execution of his office, when the prisoner beat him, and that the conviction was therefore wrong. (c) The 63rd section of the same statute contains a general provision for the apprehension and discovery of offenders punishable under Summary con- this act, and the 64th and following sections regulate the proceedings in respect of a summary conviction. victions. Principals and accessories. Abettors in misdemeanors and in minor offences. By the 61st section, in cases of felony, principals in the second degree, and accessories before the fact, are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers) are, on conviction, liable to be imprisoned for any term not exceeding two years, and abettors in misdemeanors are liable to be indicted and punished as principal offenders. By section 62, abettors in offences punishable on summary conviction, are made punishable as principal offenders. (d) (b) Ante, p. 1. A (c) Rex v. Amey, Russ. & Ry. 500. further question, not decided, was whether an assistant keeper, not appointed or confirmed by the owner of the chase, had authority to seize guns unless the head keeper were present: the words "any of his assistants, whether in his presence or not," in sec. 29, seem introduced to meet this point. C. S. G. (d) Ante, p. 2, as to hard labour and solitary confinement. CHAPTER THE THIRTEENTH. OF TAKING OR KILLING HARES OR CONIES IN A WARREN, &c. But the statutes formerly existing upon this subject are repealed by the 7 & 8 Geo. 4, c. 27. 7 & 8 Geo. 4, c. 29, s. 30. Killing hares or conies in a in the night, or in the day time. But the 7 & 8 Geo. 4, c. 29, s. 30, enacts "that if any person shall unlawfully and wilfully in the night-time take or kill any hare or coney in any warren or ground lawfully used for the breeding or keeping of hares or conies, whether the same be inclosed or not, warren, &c., every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be punished accordingly; (a) and, if any person shall unlawfully and wilfully in the day-time, take or kill any hare or coney in any such warren or ground, or shall at any time set or use therein any snare or engine for the taking of hares or conies, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay such a sum of money not exceeding five pounds, as to the justice shall seem meet; provided always that no- Proviso. thing herein contained shall affect any person taking or killing in the day-time any conies on any sea-bank or river-bank in the county of Lincoln, so far as the tide shall extend, or within one furlong of such bank." sufficient to though the With respect to what shall be deemed a taking of a hare, &c. it Glover's case. may be observed, that in a case upon the repealed statute, 5 Geo. 3, Taking a coney c. 14, in which the prisoner was indicted for entering a warren in in a wire held the night-time, and there taking a coney against the will of the oc- constitute cupier of the warren, it appeared in evidence that he set wires in the offence, the warren at about six o'clock in the evening of a day towards the animal was not latter end of December; that a coney was caught in one of the wires; and that he came again before six o'clock the next morning, when he was surprised and seized by the warrener just as he was about laying hold of the wire in which the coney was caught; the coney being then alive: and, upon a case reserved, the Judges thought that the taking by the wire was a taking by the prisoner (a) The 7 & 8 Geo. 4, c. 29, s. 4, " with regard to the place and mode of imprisonment for all indictable offences punishable under this act," enacts that "where any person shall be convicted of any felony or misdemeanor punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also VOL. II. L to direct that the offender shall be kept in killed, and the party did not take it away. Apprehension, &c., of offen ders. Abettors. What places are within the statute. within the meaning of the statute, and that he had been properly convicted. (b) The 63rd section contains a general provision for the apprehension and discovery of offenders punishable under the act, and the 64th and following sections regulate the proceedings in respect of summary convictions. By the 61st section abettors in misdemeanors are liable to be indicted and punished as principal offenders: and by the 62nd section abettors in offences punishable on summary convictions are made punishable as principal offenders. The act applies to places which are either warrens, or which are similar to warrens, where rabbits are commonly kept, and not to places where a few rabbits may be kept. On an indictment for destroying conies in the night-time in a ground lawfully used for breeding them, it appeared that the prosecutor kept rabbits, which ran about loose in his rick yard, and that the rabbits were destroyed by poison in the night-time; it was submitted that the statute only applied to warrens, and to places similar to warrens, but which could not legally be called warrens. Patteson, J. "This place was not used exclusively for rabbits; and it appears that the prosecutor merely kept some rabbits in his rick yard. If the yard had been kept exclusively for rabbits, I should have doubted it; but I think that this case is clearly not within the act of Parliament. The act applies to places commonly called rabbit-warrens, and not to places where a few rabbits may be kept." (c) (b) Glover's case, cor. Bayley, J., Somerset Spr. Ass. 1814, and East. T. 1814, MS. Bayley, J., and Russ. & Ry. 269. (c) Rex v Garratt, 6 C. & P. 369. CHAPTER THE FOURTEENTH. OF UNLAWFULLY TAKING OR ATTEMPTING TO TAKE FISH. Ir is admitted, that larceny at common law may be committed of Offence at fish, when confined in a trunk or net; (a) but doubts have been common law. raised, whether it may be committed in like manner of fish in a pond. It should seem, however, upon principle, and according to the better opinions, that larceny may be committed of fish in a pond, if the pond be private enclosed property, and of such kind and dimensions that the fish within it may be considered as restrained of their natural liberty, and liable to be taken at any time, according to the pleasure of the owner. (b) But clearly larceny at common law cannot be committed of fish at their natural liberty in rivers or great waters. (c) Many statutes were passed at different times for the better Offences by preservation of fish, and for regulating the fisheries in various parts statutes. of the kingdom; but some of them became obsolete, and the others were repealed by the 7 & 8 Geo. 4, c. 27. The 7 & 8 Geo. 4, c. 29, s. 34, enacts, "that if any person shall un- Taking fish in lawfully and wilfully take (d) or destroy any fish in any water which any water shall run through or be in any land adjoining (e) or belonging to the situate in land belonging to dwelling-house of any person, being the owner of such water, or a dwellinghaving a right of fishery therein, every such offender shall be guilty house. of a misdemeanor, and, being convicted thereof, shall be punished accordingly; (f) and if any person shall unlawfully and wilfully take In any private or destroy, or attempt to take or destroy, any fish in any water, not fishery elsebeing such as aforesaid, but which shall be private property, or in which there shall be any private right of fishery, every such offender, (a) Ante, p. 83. 2 East, P. C. c. 16, s. 43, p. 610. (b) Staundf. 25 b. 3 Inst, 109. Lamb. 274. 1 Hawk. P. C. c. 33, s. 39. 2 East, P. C. c. 16, s. 43, p. 610, 611. But the indictment should describe the pond, so that it may appear on the face of it, that taking fish out of such a pond is felony, 2 East, P. C. 611. (c) 3 Inst. 109. 1 Hawk. P. C. c. 33, 8. 39. (d) If fish were enclosed in a net, or hooked on a line, it would seem that the case would come within this clause by analogy to Glover's case, ante, p. 146, although there had been no actual removal of them by the hands of the prisoner. C. §. G. (f) That is by fine or imprisonment, where. |