unlawfully and maliciously to cut and destroy, against the form .......

Indictment for destroying a thrashing machine

a certain thrashing machine, the property of J. N., feloniously, unlawfully and maliciously did cut, break and destroy, against the form......... -Archbold,

INJURY TO CORN, TREES AND VEGETABLE PRODUCTIONS.

18. Every one who unlawfully and maliciously sets fire to any crop of hay, grass, corn, grain or pulse, or of any cultivated vegetable produce, whether standing or cut down, or to any part of any wood, coppice or plantation of trees, or to any heath, gorse furze or fern wheresoever the same is growing, is guilty of felony, and liable to fourteen years' imprisonment.-32-33 V., c. 22, s. 20. 24-25 V., c. 97, s. 16, Imp.

19. Every one who unlawfully and maliciously sets fire to any stack of corn, grain, pulse, tares, hay, straw, haulm or stubble, or of any cultivated vegetable produce, or of furze, gorse, heath, fern, turf, peat, coals, charcoal, wood or bark, or to any stere or pile of wood or bark, is guilty of felony, and liable to imprisonment for life.-32-33 V., c. 22, s. 21. 24-25 V., c. 97, s. 17, Imp.

20. Every one who unlawfully and maliciously, by any overt act, attempts to set fire to any matter or thing mentioned in either of the two sections next preceding, under such circumstances that if the same were thereby set fire to, the offender would be, under either of such sections, guilty of felony, is guilty of felony, and liable to seven years' imprisonment.-32-33 V., c. 22, s. 22. 24-25 V., c. 97, s. 18, Imp.

Indictment for setting fire to a stack of wheat ....... feloniously, unlawfully and maliciously did set fire to a certain stack of wheat, of J. N., aginst the form..........

Where the word unlawfully was omitted, the judges held the indictment to be bad.-R. v. Turner, 1 Moo, C. C. 239. No intent need be stated. R. v. Newill, 1 Moo. C. C. 458; R. v. Woodward 1 Moo. C. C. 323.

Prove that the defendant wilfully set fire to the stack of

wheat, as stated in the indictment, and prove the ownership of the property. An indictment for setting fire to a stack of beans, R. v. Woodward, 1 Moo. C. C. 323; or barley, R. v. Swatkins, 4 C. & P. 548, is good; for the court will take notice that beans are pulse, and barley, corn. A stack composed of the flax-plant with the seed or grain in it, the jury finding that the flax-seed is a grain, was held to be a stack of grain.-R. v. Spencer, Dears. & B. 131. The prisoner was indicted for setting fire to a stack of wood, and it appeared that the wood set fire to consisted of a score of faggots heaped on each other in a temporary loft over the gateway. Held, this not to be a stack of wood.-R. v. Aris, 6 C. & P. 348. Where the defendant set fire to a summer-house in a wood, and the fire was thence communicated to the wood, he was held to be properly convicted on an indictment charging him with setting fire to the wood.-R. v. Price, 9 C. & P. 729. An indictment for setting fire to a cock of hay cannot be sustained under a statute making it an offence to set fire to a stack of hay.-R. v. McKeever, 5 Ir. R. C. L. 86. A quantity of straw, packed on a lory, in course of transmission to market, and left for the night in the yard of an inn, is not a stack of straw within 24-25 Vict., c. 97, s. 17, Imp. (19 of our statute) and the setting fire thereto wilfully and maliciously is not felony.-R. v. Satchwell, 12 Cox,

449.

Sec. 19 does not apply to manufactured lumber.-R. v Berthe, 16 C. L. J. 251.

DESTROYING HOP-BINDS, ETC.

21. Every one who unlawfully and maliciously cuts or otherwise destroys any hop-binds growing on poles in any plantation of hops, or any grape vines growing in any vineyard, is guilty of felony, and liable to fourteen years' imprisonment.—32-33 V., c. 22, s. 23. 24-25 V., c. 97, s. 19, Imp.

The words in italics are not in the English Act.

As to verdict for an attempt to commit the felony charged upon an indictment under this section, see sect. 183 of the Procedure Act.

Indictment.......... one thousand hop-binds, the property of J. N., then growing on poles in a certain plantation of hops of the said J. N., situate ......... feloniously, unlawfully and maliciously did cut and destroy; against the form ....... -Archbold. See R. v. Woodward, 1 Moo.

C. C. 323.

Prove that the defendant cut or otherwise destroyed the hop-binds, or some part of them, as alleged: that they were at the time growing in a plantation of hops, situate as described, belonging to J. N. Prove also that the act was done maliciously, that is to say, wilfully, and without the belief of a supposed right.—Archbold.

DESTROYING TREES, ETC

22. Every one who unlawfully and maliciously cuts, breaks, barks, roots up or otherwise destroys or damages the whole or any part of any tree, sap shrub, or any underwood growing in any park, pleasure ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwelling-house, if the amount of the injury done exceeds the sum of five dollars, is guilty of felony, and liable to three years' imprisonment.—32-33 T., c. 22, s. 24. 24-25 V., c. 97, s. 20, Imp.

23. Every one who unlawfully and maliciously cuts, breaks, barks, roots up or otherwise destroys or damages the whole or any part of any tree, sapling or shrub, or any underwood growing in any public street or place or elsewhere than in any park, pleasure ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwelling-house, if the amount of injury done exceeds the sum of twenty dollars, is guilty of felony, and liable to three years' imprisonme 1-32-33 V., c. 22, s. 25. 24-25 V., c. 97, s. 21, Imp.

Indictment under sect. 22......... two elm trees, the property of J. N.; then growing in a certain park, of the

said J. N., situate in......... feloniously, unlawfully and maliciously did cut and damage, thereby then doing injury to the said J. N. to an amount exceeding the sum of five dollars, to wit, the amount of ten dollars, against the form......... (A count may be added for cutting with intent to steal the trees, under sect. 18 of the Larceny Act.)-Archbold.

Indictment under sect. 23......... ten elm trees; the property of J. N., then growing in a certain close of the said J. N., situate ......... feloniously, unlawfully and maliciously did cut and damage, thereby then doing injury to the said J. N. to an amount exceding the sum of twenty dollars, to wit, the sum of twenty-five dollars, against the form......... (Add a count, under sect. 18 of the Larceny Act.)

See sec. 183, Procedure Act, as to a verdict for an attempt to commit the offence charged upon an indictment for the offence, in certain cases.

It

A variance in the number of trees is not material. must be proved, under sect. 22, that the tree was growing in a park, and that the damage done exceeds five dollars.

Under sect. 23, the damage must exceed twenty dollars, and the trees growing elsewhere than in a park. The amount of injury done means the actual injury done to the trees, by the defendant's act; it is not sufficient to bring the case within the statute, that, although the amount of such actual injury is less than twenty dollars, the amount of consequential damage would exceed twenty dollars.-R. v. Whiteman, Dears. 353. An indictment under these sections is defective, if it does not allege the act to have been done unlawfully and maliciously, and it is not sufficient to state that it was done feloniously.— R. v. Lewis, 2 Russ. 1067.

Two indictments were preferred against defendants for feloniously destroying the fruit trees respectively of M. and C. The offences charged were proved to have been committed on the same night, and the injury complained of was done in the same manner in both cases, Defendants were put on trial on the charge of destroying the trees of M. and evidence relative to the offence charged in the other indictment was admitted as showing that the offences had been committed by the same persons.

Held, that such evidence was properly received.—The Queen v. McDonald, 10 O. R. 553.

DAMAGING TREES TO THE AMOUNT OF TWENTY-FIVE CENTS.

24. Every one who unlawfully and maliciously cuts, breaks, barks, roots up or otherwise destroys or damages the whole or any part of any tree, sapling or shrub, or any underwood, wheresoever the same is growing, the injury done being to the amount of twenty-five cents at the least, shall, on summary conviction, be liable to a penalty not exceeding five dollars over and above the amount of the injury done, or to one month's imprisonment, with or without hard labor; 2. Every one who having been convicted of any such offence, either against this or any other Act or law, afterwards commits any of the offences in this section mentioned, shall, on summary conviction, be liable to a penalty not exceeding twenty dollars over and above the amount of the injury done, or to three months' imprisonment with hard labor:

3. Every one who, having been twice convicted of any such offence, afterwards commits any of the offences in this section mentioned, is guilty, of a misdemeanor, and liable to imprisonment for any term less than two years.-32-33 V., c. 22. s. 26. 24-25 V., c. 97, s. 22, Imp.

If the injury done does not amount to twenty-five cents, the defendant may be punished under sect. 59, post.—R, v. Dodson, 9 A. & E. 704.

If a tree is cut or damaged, that is sufficient; it need not be totally destroyed.-Taylor's Case, R. & R. 373.