like an indictment upon the repealed clause of the 9 Geo. 1, c. 22, Indictment to specify the kind of cattle injured, and that such statement must and evidence. be supported by the evidence. In an indictment upon the 9 Geo. 1, c. 22, the prisoner was charged with maliciously killing certain cattle, viz. a mare, and he was convicted, but upon referring to the evidence, it did not appear that there was any evidence of the sex of the animal killed. A case being reserved, the first question considered was, whether the allegation that the prisoner killed certain cattle, without specifying what, would have been sufficient, because then what was stated under the videlicet might be rejected; and the Judges thought that it would not have been sufficient, and they were clear that it was essential that some evidence should have been given that the animal was a mare. (0) admissible to If a prisoner were indicted for maliciously killing cattle by poison, Other acts of other acts of administering poison would be admissible in order to administering show the intent. The prisoner was indicted for a misdemeanor in poison are administering sulphuric acid to six horses, with intent maliciously to show the kill them, and it appeared that the prisoner mixed sulphuric acid intent. with a quantity of corn, and that having done so, he gave each horse his feed, all the horses being in the same stable. Sulphuric acid is sometimes given to horses by grooms, under an idea that it will make their coats shine. Park, J. A. J., held that several acts of administering sulphuric acid were admissible, as they might go to show whether it was done with the intent charged in the indictment: and he left it to the jury to say, whether the prisoner had administered the poison with the intent imputed in the indictment, or whether he had done it under the impression that it would improve the appearance of the horses; for that in the latter case they ought to acquit him. (p) Every principal in the second degree, and every accessory before Principals in the fact, is punishable in the same manner as the principal in the the second first degree; and every accessory after the fact is liable to be im- degree, and prisoned for any term not exceeding two years. (q) The 5 & 6 Wm. 4, c. 59, s. 2, makes any person cruelly beating or otherwise ill-treating any cattle, &c., or improperly driving the same, liable to be summarily convicted. (0) Rex v. Chalkley, December, 1813, Russ. & Ry. 258. (p) Rex v. Mogg, 4 C. & P. 364. The learned Judge also held that the evidence proved a joint administering of the sulphuric acid to all the horses. (9) Ante, p. 546, where the other general provisions of the act are stated. Mr. Lonsdale observes, (St. Cr. L. 136,) that "the 7 & 8 Geo. 4, c. 30, was not repealed by the Vict. c. 90, so far as relates to principals in the second degree and accessories before and after the fact to any offence affected by the latter act, nor does that act If contain any provision for their punishment; accessories. CHAPTER THE FORTY-FOURTH. OF INJURING AND DESTROYING TREES, SHRUBS, OR UNDERWOOD. OFFENCES of the kind mentioned in the title to this chapter, were treated only as trespasses and misdemeanors by several ancient statutes: they were afterwards made offences of the degree of felony; but all the statutes upon this subject were repealed by 7 & 8 Geo. 4, c. 27, and the present law is contained in 7 & 8 Geo. 4, c. 30. By sec. 19 of this statute, "if any person shall unlawfully and maliciously (a) cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house, (b) every such offender (in case the amount of the injury done shall exceed the sum of one pound) shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped (if the Court shall so think fit), in addition to such imprisonment; (c) and if any person shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing elsewhere than in any of the situations hereinbefore mentioned, every such offender (in case the amount of the injury done shall exceed the sum of five pounds) shall be guilty of felony, and being convicted thereof, shall be liable to any of the punishments which the Court may award for the felony hereinbefore last mentioned." By sec. 20" if any person shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be respectively growing, the injury done being to the amount of one shilling at the least, every such offender, being convicted before a justice of the peace, shall for the first offence forfeit and pay over and above the amount of the injury done, such sum (a) See sec 25, ante, p. 544. (b) As to the meaning of the terms "garden," and " adjoining to," see Rex v. Hodges, Moo. & M. 341, ante, p. 68. (c) The present punishment (under this section and sec. 27, and the 1 Vict. c. 90, s.5,) is transportation for seven years or imprisonment for any term not exceeding two years, with or without hard labour, in the common gaol or house of correction, and the offender may be ordered to be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at a time, and not exceeding three months in the space of one year, as to the Court in its discretion shall seem meet; and if a male may be ordered to be once, twice, or thrice publicly or privately whipped in addition to such imprisonment. As to the punishment of principals in the second degree and acces sories, see the 7 & 8 Geo. 4, c. 30, s. 26, and 1 Vict. c. 90, s. 5, ante, p. 547. first and of money, not exceeding five pounds, as to the Justice shall seem summary meet; and if any person so convicted shall afterwards be guilty of conviction, for any of the said offences, and shall be convicted thereof in like manner, second offence, every such offender shall for such second offence be committed third offence to the common gaol or house of correction, there to be kept to hard felony. labour for such term, not exceeding twelve calendar months, as the convicting Justice shall think fit; and if such second conviction shall take place before two Justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped, after the expiration of four days from the time of such conviction; and if any person so twice convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted thereof, shall be liable to any of the punishments which the Court may award for the felony hereinbefore last mentioned." (d) The words of this statute are much larger than the words of the 9 Geo. 1, c. 22, s. 1, which were, "unlawfully and maliciously cut down or otherwise destroy any trees." But upon this clause, it was held that cutting down apple trees was sufficient, although the trees were not thereby totally destroyed. (e) In the same case it was also held that the act must be done from Malice. malice to the owner, but this is no longer necessary. () "ment must An indictment for damaging apple trees growing in a garden, The indictshould state the damage to be done "unlawfully and maliciously," state the act to and it is not sufficient to state that it was done "feloniously." The be done unprisoner was indicted for damaging some apple trees growing in a lawfully and garden, and the indictment alleged that the damage was done felo- maliciously.” niously," but did not state that it was done "unlawfully and maliciously." Bosanquet, J.-"Where the statute creating an offence uses particular words, those words must be pursued in the indictment. In this case, unless the damage was done maliciously, there was no felony committed. I think this indictment is bad." (g) A tenant cutting trees on the demised premises. It should seem that there may be cases in which a party may come within sec. 19, though the tree cut be growing upon land in his occupation as tenant. In an action against a magistrate for false imprisonment, it appeared that he had committed the plaintiff under that section for maliciously cutting a tree, growing on premises in nis occupation, and it was contended that the defendant had no jurisdiction, because it appeared that the plaintiff cut_the_tree on premises in his own occupation; but Tindal, C. J. said, "I cannot accede to the proposition that the circumstance of a party's being the occupier of the premises on which the tree is cut, necessarily takes a case out of the statute; suppose the trees excepted in a lease, the tenant would be a trespasser; and if liable in trespass, I am not prepared to say he might not be liable criminally." (h) The statute also contains provisions as to principals in the second Principals in degree, as to aceessories, and as to abettors in misdemeanors. (¿) second degree. The destruction of a wood, coppice, &c. by fire has been mentioned in a former chapter. (j) (d) See the last section, and note (c) to it. (e) Rex v. Taylor, Russ & Ry. 373. The words in the 4 Geo. 4, c. 54, were the same as in the 9 Geo 1, c. 22. (f) See sec. 25 of the 7 & 8 Geo. 4, c. 30, ante, p. 544. (g) Rex v. Lewis, Gloucester Sum. (h) Mills v, Collett, 6 Bing. R. 85. CHAPTER THE FORTY-FIFTH. Destroying, &c., any fruit production in a garden, &c., punishable on summary or vegetable conviction for first offence; second offence felony. Destroying, OF DESTROYING, &C. PLANTS, ROOTS, FRUITS, AND VEGETABLE PRODUCTIONS. THE 7 & 8 Geo. 4, c. 30, s. 21, enacts, "that if any person shall unlawfully and maliciously (a) destroy, or damage with intent to destroy, any plant, (b) root, fruit, or vegetable production, growing in any garden, orchard, nursery ground, hot-house, green-house, or conservatory, every such offender, being convicted thereof before a justice of the peace, shall, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding six calendar months, or else shall forfeit and pay over and above the amount of the injury done, such sum of money, not exceeding twenty pounds, as to the justice shall seem meet; and if any person so convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted thereof, shall be liable to any of the punishments which the Court may award for the felony hereinbefore last mentioned." (c) By sec. 22, "if any person shall unlawfully and maliciously destroy, or damage with intent to destroy, any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land, open or inclosed, not being a garden, orchard, or nursery ground, every such offender being convicted thereof before a justice of the peace, shall, at the discretion of the justice, either be committed to the common gaol or house of correction there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding one calendar month, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding twenty shillings, as to the justice shall seem meet, and in default of payment thereof, together with the costs, if ordered, shall be committed as aforesaid for any term not exceeding one calendar month, unless payment be sooner made; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term, not exceeding six calendar months, as the convicting justice shall think fit; and if such subsequent conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped, after the expiration of four days from the time of such conviction.' CHAPTER THE FORTY-SIXTH. OF CUTTING AND DESTROYING HOP-BINDS. THE 7 & 8 Geo. 4, c. 30, s. 18, enacts, "that if any person shall Destroyitig unlawfully and maliciously (a) cut or otherwise destroy any hop- hop-binds binds growing on poles in any plantation of hops, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years; and if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit,) in addition to such imprisonment." The 1 Vict. c. 90, s. 2, recites this section, and repeals so much of it "as relates to the punishment of persons convicted of any of the offences hereinbefore specified," and then enacts that "every person convicted after the commencement of this act, (1 October, 1837) of any of such offences respectively, shall be liable to be transported beyond the seas for any term not exceeding fifteen years nor less than ten years, or to be imprisoned for any term not exceeding three years." (b) (a) See sec. 25, ante, p. 544. (b) See sec. 3, ante, p. 570, as to hard labour and solitary confinement; and as to the punishment of principals in the VOL. II. P P |
