and kept to hard labour for any term not exceeding three years; and in Scotland, any person so offending shall be liable to be punished in like manner."

Upon an indictment under this clause of the statute, the prosecutor must prove; 1st, the unlawful entry by night by three persons or more; 2nd, the place in which, &c.; 3d, the purpose to take or destroy game or rabbits; 4th, the being armed with a gun, &c.

It has been ruled that a count on this clause may be joined with a count on section 2, see post, p. 559, and with counts for assaulting a gamekeeper in the execution of his duty, and for a common assault. Finacane's case, 5 C. & P. 551. Where a prisoner was indicted for shooting at a gamekeeper, and was also indicted for night poaching, under the above section, Parke, J., refused to put the prosecutor to his election, the offences being quite distinct; although they related to the same transaction. Handley's case, Id. 565."

Proof of the entering, &c.] The prosecutor must show that at least three persons entered, or were (the words of the statute are, "shall unlawfully enter or be") by night in the place specified. It will not therefore be necessary to show that they entered by night, provided they be in the place within the hours meant by the words "by night," vide ante, p. 555. The indictment must state that the entry and arming were by night. Where an indictment stated that the defendants on, &c., did by night enter divers closes, and were then and there in the closes armed, &c.; the judgment was reversed, on the ground that the indictment did not contain a sufficient averment that the defendants were by night in the closes, armed, &c. Davies v. The King, 10 B. & C. 89; see also Kendrick's case, 7 C. & P. 184 ;P Wilks's case, Id. 811; Fletcher v. Calthrop, ante, p. 556.

Proof of the entering or being in the place specified.] The place must be described in the indictment, and the proof must agree with the allegation. Vide ante, p. 556. The defendants to the number of three or more, must be proved to have been in the place named; if one only appear to have been there, all must be acquitted. Thus, where only one defendant was seen in the place charged in the indictment, the others being in a wood, separated therefrom by a high road; Patteson, J., held the indictment not proved. Dowsell's case, 6 C. & P. 398 ; 1 Russ. by. Grea. 476, (n.)

*But where the proof was, that three of the defendants were in a [*558] preserve, and that a fourth remained outside to watch, who on the approach of the gamekeeper went into the preserve, and informed the rest, when they all ran away together: Alderson, B., held that he was equally guilty with those who entered the preserve at first. Passey's case, 7 C. & P. 282; Lockett's case, Id. 300; see also a similar opinion of Gurney, B., in R. v. Andrew, 2 Moo. & R. 37. The latter learned judge, however, in a subsequent case, at the Stafford Spring Assizes, 1841, expressed great doubt upon the point. 1 Russ. by Grea. 476 (n.); where the question is ably discussed by the learned editor, who agrees with the construction put upon the statute by Mr. J. Patteson in Dowsell's case; see also R. v. Scotton, 5 Q. B. 493, where this question came again under dis

cussion.

The evidence against the prisoner was, that he and his companions were in a lane, abutting on Wade's close, and that while they were standing in the lane, Eng. Com. Law Reps. xxiv. 452. " Id. xxiv. 457. • Id. xxi. 29. P Id. xxxii. 487.

9 Id. 748.

r Id. xxv. 457.

Id. xxxii. 511.

t Id. 516.

they spread their nets upon some twigs of the hedge, which separated the lane from the close. On the question being raised, whether this was an entry upon the land; Alderson, B., held that if the jury were satisfied that, in effecting a common purpose by all the defendants, the nets were hung upon the hedge, so as to be within the field; it was an entry by them all upon the close. Athea's case, 2 Lew. C. C 191; but see contra, R. v. Nickless, 8 C. & P. 757."

Proof of the purpose to take or destroy game or rabbits.] In general little difficulty exists with regard to the intent of the defendants. The circumstance of their being found armed is in itself a strong presumption of their object. As to the intent of killing game in the particular place charged in the indictment, see ante, p. 556.

Proof of the being armed with a gun, &c.] Though it must be proved that three persons at least were concerned in the commission of the offence, the statute does not require that it should appear that each was armed with a gun or other weapon, the words being "any of such persons being armed," &c., and this was held upon the former statute, 57 Geo. 3, c. 90, which did not contain the word "any." Smith's case, Russ. & Ry., 368. It is not necessary that the gun should be found upon any of the defendants. The prisoners were shooting in a wood in the night, and the flash of their guns were seen by a keeper; but before they were seen they abandoned their guns, and were caught creeping away on their knees. Being convicted, the judges held this a being "found armed" within the .57 Geo. 3, c. 90. Nash's case, Russ. & Ry. 386. See also Reg. v. Goodfellow and others, 1 C. & K. 724, S. C.; 1 Denison, C. C. 81, where it was held, (overruling on this point R. v. Davis, 8 C. & P. 579,) that if one of a party of three or more poaching in the night-time has a gun, all are armed within the 9 Geo. 4, c. 69, s. 9.

Where several go out together and one only is armed, without the knowledge of the others, the latter are not guilty within the statute. Southern's case, Russ. & Ry. 444.

It must appear that the weapon was taken out with the intention of being unlawfully used. The defendant was indicted for being out at night for the pur[*559] pose of taking game armed with a bludgeon. It appeared that he had with him a thick stick, large enough to be called a bludgeon, but that he was in the constant habit of using it as a crutch, being lame. Taunton, J., ruled that it was a question for the jury, whether he took out the stick with the intention of using it as an offensive weapon, or merely for the purpose to which he usually applied it. The defendant was acquitted. Palmer's case, 1 Moo. & Rob. 70. A walking-stick of ordinary size was ruled to be "an offensive weapon," within the 7 Geo. 2, c. 21. Johnson's case, Russ. & Ry. 492.a

The prisoners were indicted for entering land at night, armed with bludgeons, with intent to destroy game; there was also a count for a common assault. The only weapons proved to have been used by the prisoners were sticks. One of these was produced, with which one of the prisoners on being attacked by the gamekeeper, had defended himself, and knocked the gamekeeper down. The stick, however, was a very small one, fairly answering the description of a common walking stick. On its being objected that the stick could not be considered an offensive weapon within the statute, Johnson's case was cited for the prosecution, and it was

contended that the use made of the stick by the prisoner showed both his intention and the nature of the stick. Gurney, B., said that if a man went out with a common walking stick, and there were circumstances to show that he intended to use it for purposes of offence, it might, perhaps, be called an offensive weapon within the statute, but if he had it in the ordinary way, and upon some unexpected attack or collision, was provoked to use it in his own defence, it would be carrying the statute somewhat too far to say it was an offensive weapon, within the meaning of the act. The prisoners were convicted of a common assault only. Fry's case, 2 Moo. & Rob. 42.

Large stones are offensive weapons, if the jury are satisfied that the stones are of a description capable of inflicting serious injury, if used offensively, and that they were brought and used by the defendants for that purpose. Grice's case, 7 C. & P. 803.b

ASSAULT UPON PERSONS APPREHENDING OFFENDERS.

By 9 Geo. 4, c. 69, s. 2, "where any person shall be found upon any land, committing any such offence as is hereinbefore mentioned, (see Ball's case, post,) it shall be lawful for the owner or occupier of such land, or for any person having a right of free warren or free chase thereon, or for the lord of the manor or reputed manor, wherein such land may be situate, and also for any gamekeeper or servant of any of the persons hereinbefore mentioned, or any person assisting such gamekeeper or servant, to seize and apprehend such offender upon such land, or in case of pursuit being made in any other place to which he may have escaped therefrom, and to deliver him as soon as may be, into the custody of a peace officer, in order to his being conveyed before two justices of the peace. And in case such offender shall assault or offer any violence with any gun, cross-bow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person hereby authorized to seize and apprehend him, he *shall, whether it be his [ *560] first, second, or any other offence, be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for seven years, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding two years; and in Scotland, whenever any person shall so offend, he shall be liable to be punished in like manner."

On an indictment under this statute, the indictment must state, and the prosecutor must prove; 1st, that the defendant was found upon some land committing one of the offences specified in the 9 Geo. 4, c. 69, s. 1, ante, p. 554; 2d, that he is himself either the owner or occupier of the land, or person having a right of free warren or free chase, or land of the manor, or gamekeeper or servant of any of the above-named persons, or a person assisting such gamekeeper or servant; 3d, the assaulting or offering violence, with a gun, &c., at the time of the attempted apprehension. See R. v. Curnoch, 9 C. & P. 730.

A gamekeeper, or other person lawfully authorized, may apprehend poachers, without giving notice of his purpose. Payne's case, 1 Moo. C. C. 378, post, title Murder; Davis's case, 7 C. & P. 785; and without any written authority for that purpose. Price's case, 7 C. & P. 178. But they must be upon the land or manor d2 Eng. C. C. 378.

b Eng. Ccm. Law. Reps. xxxii. 744.
Eng. Com. Law Reps.

• Id. xxxviii. 310. xxxii. 736.

Id. 486.

of his master, for he cannot apprehend them upon the lands of others without authority. Davis's case, supra.

Although the foregoing section is confined to the offences specified in the first section, yet offenders, under the 9th section, may also be apprehended, for though a greater punishment is inflicted where several are out armed, they are still guilty of an offence under the first section. Ball's case, 1 Moo. C. C. 330. See title Murder.

By the game amendment act, 1 and 2 Wm. 4, c. 32, s. 31, trespassers in search of game may be required to quit the land, and to tell their names and abodes, and in case of a refusal may be apprehended and taken before a justice. See Long's case, 7 C & P. 314.h

[*561]

When an offence at common law
The statute 8 and 9 Vict. c. 109

*GAMING.

561

561

When an offence at common law.] Gaming, says Hawkins, is permitted in England, upon every possible subject, excepting where it is accompanied by circircumstances repugnant to morality or public policy, or where, in certain special cases, it is restrained by positive statutes. Hawk. P. C. b. 1, c. 92, s. 1. But where the playing is, from the magnitude of the stake, excessive, and such as is now commonly understood by the term " gaming," it is considered by the law as an offence, being in its consequences most mischievous to society. 1 Russ. by Grea. 455.

The principal statutory provisions against gaming were contained in the 9 Anne, c. 14, (E.); the 18 Geo. 2, c. 34, (E.); the 10 Wm. 3, (I.); and the 11 Anne (I.); but these statutes, with regard to the punishment of gaming, are repealed by the 8 and 9 Vict. c. 109, s. 15.

By the seventeenth section of the latter statute (E. & I.) which is entitled “an act to amend the law concerning games and wagers,' "every person who shall by any fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime, or exercise, win from any other person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence, with intent to cheat or defraud such person of the same, and being convicted thereof shall be punished accordingly."

As to gaming-house, see title Nuisance.

Upon prosecutions for nuisance to a highway, the prosecutor must prove, 1st, that the way in question is a common highway; 2d, the obstructing of it, or other nuisance.(1)

Proof of the way being a highway.] Every way which is common to the public is a highway. Thus a bridge may be a common highway. 2 Ld. Raym. 1174. So a footway; Logan v. Burton, 5 B. & C. 513; for it is a public highway for foot passengers; Allen v. Ormond, 8 East, 4. So a public bridle-way. R. v. Inhab. of Salop, 13 East, 95. So a towing-path, used only by horses employed in towing vessels, is a highway for that purpose. Per Bayley, J., R. V. Severn and Wye Railway Co., 2 B. & A. 648. And a railway made under the authority of an act of parliament; which provides that the public shall have the beneficial enjoyment of it, is also a highway to be used in a particular manner. R. v. Severn and Wye Railway Co., 2 B. & A. 646.

A river which is common to all the king's subjects, has been frequently held to be a highway; and if its course change, the highway is diverted into the new channel. 1 Roll. Ab. 390; Hammond's case, 10 Mod. 382; Hawk. P. C. b. 1, c. 76, s. 1.

*It must appear that the highway was a way common to all the King's [*563 ] subjects; for, though numerous persons may be entitled to use it, yet if it be not common to all, it is not a public highway. Thus a private way, set out by commissioners under an inclosure act, for the use of the inhabitants of nine parishes, and directed to be repaired by them, does not concern the public, nor is of a public

(1) 1 Russell, C. & M. 307, n. A.
Eng. Com. Law Reps. vol. xii. 303.