Summary Convictions. SYNOPSIS OF OFFENCES. [PART I. Statute. GAME-continued. IX. NIGHT POACHING (Note 182). 35. Any person, by night, unlawfully taking or destroying, any game or rabbits, in any land, whether open [i. e. not waste [or 36. On any public road, highway or path, or the sides thereof, or at the openings, outlets or gates from any such land into any such public road, highway or path (7 & 8 Vict. c. 29, s. 1, Note 183)], or 37. By night unlawfully entering or being on any land, whether open [see case under Offence 35] or enclosed, [QUERY.-With respect to the taking or destroying of hares X. COMING FROM LAND HAVING GAME, NETS, &c. 38. Being found by a constable in a highway, street, or public place, [MEM. The game, guns, nets, &c. found are to be sold, see Note 9 Geo. 4, c. 69, s. 1. 25 & 26 Vict. c. 114, s. 2. 182 Definition of Night-time.] The "night-time" is defined by 9 Geo. 4, c. 69, s. 12, to be from the expiration of the first hour after sunset until the beginning of the last hour before sunrise. 183 Observation.] It will be observed, that having a gun, &c. on a road, &c. for the purpose of taking, &c. game, would not be an offence under this section. 184 Rabbits.] It is no offence under this section to be by night on land, whether open or inclosed, with any gun, &c. for the purpose of taking or destroying rabbits; nor could the parties be proceeded against for a trespass, under 1 & 2 Will. 4, c. 32, s. 30 (Offence 1, ante, p. 442), for that extends only to the day-time. The definition of game" is, by the 9 Geo. 4, c. 69, s. 12, the same as in the 1 & 2 Will. 4, c. 32, in Note 167. A snare is an "engine" or "instrument" (Allen v. Thompson, 39 L. J. (N. S.) M. C. 102; 22 Law T., N. S. 472). See Blades v. Higgs, in Note 180, supra, as to the ownership of dead rabbits which had been poached. 66 185 Apprehension of Offenders without a Warrant.] Offenders found committing offences may be apprehended by the owner or occupier, or the lord of the manor, or their gamekeeper or servant, on the land, without warrant, and delivered to a constable to be taken before a justice (9 Geo. 4, c. 69, s. 2); or if the offence be on a road, &c. by the owner, &c. of the adjoining land (7 & Vict. c. 29, s. 1). 186 Appeal.] The sect. 6 of the 9 Geo. 4, c. 69, here referred to, is a precisely similar clause to 1 & 2 Will. 4, c. 32, s. 44, set out in Note 171, ante, p. 445. Two. 1st Offences.] Impr. with h. 1. 2nd Offence (Note 187).] Double 3rd Offence.] An indictable mis- 187 Evidence of Conviction.] A copy of the record of the conviction is evidence on a prosecution for a second or third offence (9 Geo. 4, c. 69, s. 8, and see ante, pp. 183, 184). The recognizance may be taken before one justice. 188 Constable's Authority to search suspected Persons-Definition of "Game" and "Justices."] By 25 & 26 Vict. c. 114, s. 2, "it shall be lawful for any constable or peace officer in any county, borough or place . . . in any highway, street, or public place, to search any person (see Hall v. Knox, in Note 189) whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game, or any person aiding or abetting such person, and having in his possession any game, unlawfully obtained, or any gun, part of a gun, or nets or engines [a snare is an "engine," Allen v. Thompson, Note 184, supra], used for the killing or taking game; and also to stop and search any cart or other conveyance in or upon which such constable or peace officer shall have good cause to suspect that any such game or any such article or thing is being carried by any such person;-and should there be found any game or any such article or thing as aforesaid upon such person, cart or other conveyance, to seize and detain such game, article or thing;-and such constable or peace officer shall in such case apply to some justice of the peace for a summons citing such person to appear before two justices of the peace assembled in petty sessions, as provided in the 18 & 19 Vict. c. 126, s. 9 [post, Chap. IV. of this Vol.; Form of Notice of Petty Sessions, No. 56, Oke's "Formulist," 6th ed. p. 180];—and if such person shall have SYNOPSIS OF OFFENCES. Statute. GAME-continued. X. COMING FROM LAND HAVING GAME, Nets, &c.—continued. 25 & 26 Vict. c. 114, s. 2. 40. Being found, as in Offence 38, and suspected of aiding and abetting person coming from land, game, or nets, &c. being found in the possession, &c. of either, the justices deeming the offender to have been accessory to the other person's offence of unlawfully being on land, or of using guns, nets, &c. Id. obtained such game by unlawfully going on any land in search or pursuit of game, or shall have used any such article or thing as aforesaid for unlawfully killing or taking game, or shall have been accessory thereto, such person shall, on being convicted thereof, forfeit and pay any sum not exceeding five pounds, and shall forfeit such game, guns, parts of guns, nets and engines,-and the justices shall direct the same to be sold or destroyed, and the proceeds of such sale, with the amount of the penalty, to be paid to the treasurer of the county or borough where the conviction takes place; and no person who, by direction of a justice in writing, shall sell any game so seized shall be liable to any penalty for such sale [Form of Order, Oke's “ Formulist,” 6th ed. p. 181, No. 59]; -and if no conviction takes place, the game or any such article or thing as aforesaid, or the value thereof, shall be restored to the person from whom it had been seized." By sect. 1, "the word 'game' in this act shall for all the purposes of this act be deemed to include any one or more hares, pheasants, partridges, eggs of pheasants and partridges, woodcocks, snipes, rabbits, grouse, black or moor game, and eggs of grouse, black or moor game; and the words 'justice' and 'justices in this act shall, unless otherwise provided for, mean respectively a justice and justices of the peace respectively of or for the county, riding, division, liberty, city, borough or place in which any game, gun, part of a gun, net, snare or engine after mentioned [in sect. 2, supra] shall be found." 189 Decisions on 25 & 26 Vict. c. 114.] The following decisions have been given under the 25 & 26 Vict. c. 114, s. 2:-Brown v. Turner (32 L. J. (N. S.) M. C. 106; S. C., Reg. v. Turner, 7 Law T., N. S. 683), in the C. P., held that the act intended to give larger powers than in the 1 & 2 Will. 4, c. 32; that it was not necessary that the party should actually have been seen on the land, for if so, the former act would have been sufficient, and that the mere finding the articles under certain circumstances is by the act presumptive evidence of guilt, unless the party suspected gave a reasonable account how he came by them, and that it was not necessary to prove whose property the rabbits were. Evans v. Botterell (33 L. J. (N. S.) M. C. 50; 8 Law T., N. S. 272), in the Q. B., confirmed this decision, and so did Fuller v. Newland, 27 J. P. 406. Hall v. Knox (33 L. J. (N. S.) M. C. 1; 9 Law T., N. S. 380) decided that an actual search of the person by the constable was not necessary, if game was seen upon the person. See also Ex parte Hurst, 27 J. P. 824. Reg. v. Spencer (3 F. & F. 857, per Martin, B.), on an indictment for assaulting a constable, held that where no reasonable ground of suspicion can be shown, the parties are justified in resisting the search by the constable. As to sufficiency of evidence, see Jones v. Dicker, 22 Law T., N. S. 95. In order to give jurisdiction, the game must be found by the constable on the person, &c. of the accused on the highway (Clarke v. Crowder, 38 L. J. (N. S.) M. C. 118). In Jenkin v. King (41 L. J., M. C. 145), the appellants were arrested by constables on the highway at about half-past nine on a December evening. One of them had then a net used in catching hares in his hand; the net was wet, and the appellants had been heard to whistle to a dog, half lurcher, which was near them when they were taken, and appeared to belong to one of them. Upon this it was held that there was evidence upon which the appellants might be convicted under the act, as it was not necessary to show that game had actually been killed by them, and it was enough to show that the net had been used with the object of killing game. But in order to justify a con viction under this statute, the game, &c. in the possession of the suspected person must be seized by the constable on the highway (Turner v. Morgan, 44 L. J., M. C. 161). In this case the appellant whilst going in a cart along a highway was required to stop by the respondent, a constable. The appellant drove off without obeying the order to stop, and shortly afterwards delivered several rabbits to G., of which the respondent subsequently took possession; and it was held that as the rabbits were not seized by the respondent whilst they were in the appellant's possession upon the highway, the appellant could not be convicted. Brett, J., in delivering his judgment, said, "The appellant is entitled to our judgment. The conditions precedent were not fulfilled which were necessary to give the justices jurisdiction to convict. As this is a statute imposing a penalty, it must be construed strictly. It gives police constables considerable power in carrying out the object of the act. They are authorized without a warrant to stop and search in a highway any person or vehicle, and if they find any game, gun, or net upon the person or in the vehicle stopped, they are empowered to seize the same. This is a wide extension of the authority of constables, and, as is pointed out by Bovill, C. J., in Clarke v. Crowder (38 L. J., M. C. 118), if the statute had stopped there, there would only have been power for the constables to search and seize, and there would have been no judicial tribunal to inquire as to the propriety of the officer's conduct. It is therefore provided that the constable who has found, seized and detained shall take out a summons. The words in such case' mean, where finding, seizure and detainer have occurred; they do not apply where these circumstances have not taken place. Only the constable who has fulfilled the statutory requirements can lawfully compel the attendance of the suspected person before the justices. It seems to me in the present case that the evidence warranted the magistrates in finding that at the time the appellant drove away from the constable he had the rabbits in his cart; but this circumstance alone will not uphold the conviction. The rabbits were not seized upon the highway; when the appellant was desired to stop he started off, and the game which he had with him was not seized while in his cart. It seems to me to follow from the reasoning in Clarke v. Crowder that a seizure at the time upon the highway was indispensable to justify the conviction." An Information under the 25 & 26 Vict. c. 14, s. 2. An information under the Poaching Prevention Act (25 & 26 Vict. c. 114, s. 2), must charge the defendant with having obtained the game found on him by unlawfully going upon land in search or pursuit of game, or being accessory to another person so doing; and therefore a conviction which proceeded on an information which did not allege that the game was obtained by the defendant unlawfully going on land or being accessory to another doing so was held to be bad (Lundy v. Botham, 41 J. P. 774). 190 Recovery of Penalties under 25 & 26 Vict. c. 114.] By 25 & 26 Vict. c. 114, s. 3, the penalty is to "be recovered and enforced in the same manner as penalties under the 1 & 2 Will. 4, c. 32, when not otherwise directed by this act," and by sect. 4, the powers and provisions of the 11 & 12 Vict. c. 43, "shall extend and apply to this act, and to all proceedings, matters and things to be taken, had and done, and to all persons to be proceeded against or taking proceedings under this act." 191 Appeal under 25 & 26 Vict. c. 114.] By 25 & 26 Vict. c. 114, s. 6, "any person SYNOPSIS OF OFFENCES. GAMING HOUSES. (Notes 192, 193.) See "Betting-Houses," ante. [MEM. This offence is also punishable on indictment. See tit. 66 Statute. 8 & 9 Vict. c. 109, s. 4. 2. Any person,-being the owner or occupier, or having the use of any house, room or place,-who shall open, keep or use the same for the purpose of unlawful gaming being carried on therein;— or 3. Any person who, being the owner or occupier of any house or room, shall knowingly and wilfully permit the same to be opened, kept or used by any other person for the purpose aforesaid; . or 4. Any person having the care or management of, or in any manner assisting in conducting the business of, any house, room, or place opened, kept or used for the purpose aforesaid ; or 5. Furnishing Money for Gaming.] Any person who shall advance or [As to the term "place" in the act, see Doggett v. Catterns, 17 & 18 Vict. c. 38, s. 4. who shall think himself aggrieved by any such summary conviction may appeal to the next court of general or quarter sessions which shall be holden not less than twelve days after the day of such conviction for the county, riding, division or borough wherein the cause of complaint shall have arisen,-provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at the least before such sessions, and shall, within three days, enter into a recognizance, with a sufficient surety, before a justice of the peace, conditioned personally to appear at the said sessions and to try such appeal, and to abide the judgment of the court thereupon, and to pay such costs as shall be awarded by the court;-and the court at such sessions shall hear and determine the matter of appeal, and shall make such order therein, with or without costs, to either party, as to the court shall seem fit, and shall, if necessary, issue process for enforcing such judgment." ... 192"GAMING HOUSES:" Warrant to enter Gaming Houses.] 8 & 9 Vict. c. 109, s. 3, authorizes the justice to issue a special warrant (of which a form is given, vide Oke's "Formulist," 6th ed. p. 776), on complaint on oath that there be reason to suspect any house, room or place to be kept or used as a common gaming house, to enter such house and to arrest all persons found therein, to be dealt with according to law. See Note 193. |