CLARK ບ. THE QUEEN. 1884. Intent to com mit felony. wrenched off one pump was evidence from which the justices might well assume he intended to wrench off another. [HAWKINS, J.-It is upon the other point that the court feel a difficulty. What is the evidence of the appellant's "frequenting" the street?] Rogue and Evidence that he frequented the streets of the town would be vagabond sufficient to support the conviction: (Re Cross, ubi sup.) [HAWKINS, Frequenting J.-But there is no evidence that he did frequent the streets of the highway town.] It is sufficient that he was a reputed thief residing in the town. The justices could well infer from this that he frequented its streets. The cases of Reg. v. Brown (17 Q. B. 833; 21 L. J. 113, M. C.) and Re Elizabeth Jones (7 Ex. 586; 21 L. J. 116, M.C.) show that the courts are not disposed to lay any stress on the word "frequenting." In the former, Lord Campbell, C.J. says, "All highways are, in my opinion, protected, and any person found in them under the circumstances specified in the Act is liable to be treated as a rogue and vagabond." The other judges, in the two cases cited, make similar observations, disregarding the distinction which is now attempted to be drawn. Then Re Cross (ubi sup.) goes even further, Martin, B. saying, "The Act applies to persons frequenting a place of public resort;' and here it is alleged that he is found in Railway-place, being a public thoroughfare, and one of the places of resort in the said city. That appears to me to be sufficient." That case is therefore an authority in support of this conviction. Edge in reply.-In Re Cross there was an averment that the prisoner frequented the public streets and places of and in the said city, which is absent from and distinguishes the present from that case. Cur, adv. vult. Dec. 1.-GROVE, J.-In this case the appellant, as the facts of the case are, was found-I use the word in a general sense— in Victoria-road, South Shields, at about ten minutes to two o'clock in the morning, on the 5th day of March, 1884, having in his possession part of a brass pump-the chamber part, or that portion which is usually exposed above the ground for use. It appeared as if it had been torn or wrenched off from a continuation pipe. He was stopped by the constables, and in reply to them, gave an account of the article in his possession, which, upon inquiry, was not verified. In addition to this, it was subsequently proved, on the evidence of other constables, that the prisoner had been previously tried and convicted for stealing, and sentenced to six months' imprisonment with hard labour, and further that he had, subsequently to this conviction, been seen in the company of convicted thieves, and was known to the police as an associate of thieves. There was, therefore, more than suspicion against him, since, first of all, he was a convicted thief, and, secondly, the portion of the pump was presumably stolen. The facts, however, did not show that the man had ever been found in the street before. On this evidence the prisoner was convicted, under the statutes 5 Geo. 4, c. 83, s. 4, and 34 & 35 CLARK v. THE QUEEN. 1884. Intent to com Vict. c. 112, s. 15, for that he, being a suspected person and reputed thief, unlawfully did frequent a certain street in the borough of South Shields, called Victoria-road, for a certain unlawful purpose, to wit, with intent to commit a felony. The appellant, however, considering that he had been wrongly Rogue and convicted under the statutes in question, obtained a case from the vagabond justices, and now contends before us, in the first place, that there Frequenting is not any sufficient evidence from which the magistrates could,highwayrightly conclude that he intended to commit a felony; and, mit felony. secondly, that, even if they could have rightly come to this conclusion, there is no evidence that he frequented the street in question. As to the first point, I cannot say that the magistrates were wrong in assuming that a man found at that time in the morning, and giving a false account as to who he was and from where he got the article that was found in his possession, might be not unreasonably supposed to be looking about for anything else worth stealing, and I should not be inclined to question the decision of the justices on this ground. But then comes the real difficulty. The words of the original Act of George IV. (5 Geo. 4, c. 83, s. 4) provide that "Every suspected person or reputed thief frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse, near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent, with intent to commit a felony, shall be deemed a rogue and vagabond;" and the 15th section of 34 & 35 Vict. c. 112, enacts that, whereas doubts were entertained as to the construction of that section, it is to be construed as if, instead of the words "highway, or place adjacent," there were inserted the words "any highway or any place adjacent to a street or highway." The whole difficulty, therefore, in this case arises from the question as to what interpretation we are to put on the word "frequenting." I certainly, as far as the present case is concerned, am not surprised that the justices came to the conclusion they did, but I am unable myself to come to the same conclusion, and to decide that the prisoner frequented the street in question or the neighbourhood of the street, there being no evidence that he had ever before been seen there, or in the neighbourhood. To bring him, therefore, within the section, we must apply a different meaning to the words "frequenting" from any which I have ever heard applied to it before. However much we may think the man deserved the conviction, and the consequent imprisonment, we must not extend the Act of Parliament, and give it a different meaning from that found in any dictionary or book of interpretation. I think it would be too dangerous a doctrine to lay down that any man walking about, who can reasonably be supposed to be going to commit a felony comes within the provisions of this section. To do this would, I think, be to do more than construe the statute-nay, in my opinion, it would be an actual departure from it. Besides, in different parts of the section, two separate CLARK v. THE QUEEN. 1884. Intent to com mit felony. forms of words are used. In one place it is said that "every person being found in or upon any dwelling-house, warehouse, coach-house, stable, or outhouse" is to be deemed a rogue and vagabond, and in the other that "every suspected person or reputed thief frequenting any street, highway, or place adjacent thereto. Rogue and ragabond is to be so dealt with. Now, it is to be observed that the word Frequenting "found" is used with respect to dwelling-houses and their highway precincts, whereas this word "found" is not repeated when we come to the part of the section dealing with streets, highways, and places adjacent thereto, but the word "frequenting" is used instead. There is, therefore, I think, a difference between the two parts of the section made by the Legislature itself. If a person is found in any of the places mentioned in the first part of the section, he must give a reasonable explanation of his presence there, or otherwise may be rightly convicted of an offence against the section; but, when we come to the streets and highways over which the public have the right to walk at all times, the statute I think, intended by the use of the word "frequenting" that a person was to be found there more than once before he could be brought within the provisions of the section; and this, in my opinion, is the construction to be placed upon the words of the Act. There is an absolute want of all evidence in this case that the appellant had ever been seen in the street in question before, and I do not indeed think that the bare fact of having been seen there once before would bring any man within the section, although it is unnecessary to say so now, as at present I am only adjudicating on this particular case. The statute uses the word "frequent," and no one would say that a man frequents a publichouse, for instance, because he has been seen there once; but by the use of that word would mean that he has been sitting there frequently, or, as my brother Hawkins said in the course of the argument, no one would say that a man frequents a house to which he goes once to inquire whether the occupier is at home. A convicted thief has just as much right when once he has performed his sentence to walk through the public streets as any other person. There are, therefore, ample reasons for the use of the word "frequenting" in the latter part of the section by the Legislature instead of the word "found; " and I must interpret the words of the statute in their plain and literal meaning, unless, as is not the case here, such an interpretation taken in conjunction with the context would lead to a manifest absurdity. I am, therefore, reluctantly compelled to come to the conclusion that this conviction is wrong, and must be quashed. There were certain cases cited to us in the course of the argument, but I do not think that there is anything in them to affect my decision in the present case, since it appears to me that the learned counsel for the respondents relied more upon the dicta contained in the judgments than on the points really decided in them. In one case (Re Cross, 1 H. & N. 651; 26 L. J. 28, M. C.) the question raised was whether a man could be said to frequent a street if he frequented the neighbourhood, and the judges very rightly decided that a person came within the statute who frequented a certain street and was found in an adjacent place with intent to commit a felony, for otherwise a man who frequented a street and was found in an alley down which he had followed some person with intent to rob him would not be within the section. The court, therefore, decided that the commitment in that case was not bad, because it alleged that the prisoner was "found" in a public thoroughfare with intent feloniously to steal; but the court did not say that the word "frequent" was the same thing as the word "found," which we should have to do if we decided this case differently, for there there was also an averment that the prisoner frequented the public streets of the city, which "frequenting" the court considered to be sufficient to bring the prisoner within the section. I think, therefore, that the Legislature purposely used two different words with different meanings to apply to two different subject-matters; and in this case I see no reasonable evidence that the appellant frequented any street or highway at all. I think, therefore, that I should be straining the statute if I said that he came within it, and for these reasons I am of opinion that this conviction must be quashed. HAWKINS, J.-I am of opinion that this conviction cannot stand. By 5 Geo. 4, c. 83, s. 4, it is enacted: [Reads it.] Upon the construction of this section grave doubts for a considerable time existed as to whether it justified the commitment of a person frequenting a public street or highway with intent to commit felony, unless such street or highway led to a river, &c., or a place of public resort, or was adjacent thereto. In 1850 Pattison, J. on habeas corpus discharged two reputed thieves frequenting a street at the west end of London, with intent, &c., on the ground that the street was not shown to lead to a river, &c., or place of public resort (17 Q. B. 834 n). In a subsequent case (Reg. v. Brown, 17 Q. B. 833; 21 L. J. 113, M. C.) in 1852 the Court of Queen's Bench (Pattison, J. dissenting) held the contrary view, and that the section applied to any street or place adjacent to a street. In the same year, in Re Jones (7 Ex. 586; 21 L. J. 116, M. C.) the Court of Exchequer dissented from this judgment of the Queen's Bench, and discharged a suspected person charged with frequenting Regent-street with intent to commit felony on the ground that the commitment did not state that the street frequented by the prisoner was a street leading to a river, &c., or a place of public resort, or a street adjacent to a place of public resort, and this view was adhered to by the Court of Exchequer in Re George Timson (L. Rep. 5 Ex. 257) in 1870. To remedy the inconvenience arising from these conflicting interpretations of the law, sect. 15 of 34 & 35 Vict. c. 112 (1871) enacts that sect. 4 of 5 Geo. 4 shall be construed as if instead of the words "highway or place adjacent" there were inserted the words "or any highway or any place adjacent to a street or highway." The effect of this enactment is to render every VOL. XV. X X Rogue and vagabondequenting highway Intent to com➡ CLARK v. THE QUEEN. 1884. Intent to commit felony. suspected person or reputed thief frequenting any street, or highway, or any place adjacent to a street or highway, with intent to commit felony, liable to be dealt with as a rogue and vagabond. Under these two statutes the appellant was convicted by the magistrates of South Shields for that he being a suspected person Rogue and vagabond and reputed thief unlawfully did frequent a certain street there Frequenting called Victoria-road for a certain unlawful purpose-to wit, with highway intent to commit a felony, &c.; and we are now asked to say whether upon the evidence that conviction was justified in law. Several objections were raised by the appellants; first, that there was no evidence of his being a suspected person or reputed thief. As to this, one has only to read the statement of fact on the case to see that it is unarguable. Equally unarguable, in my opinion, is the objection that there is no evidence of an intent by the appellant to commit a felony, when the facts proved are taken in conjunction with that part of sect. 15 of 34 & 35 Vict. c. 112, which enacts that, "in proving the intent to commit a felony, it shall not be necessary to show that the person suspected is guilty of any particular act or acts tending to show his purpose or intent, and he may be convicted if from the circumstances of the case, or from his known character as proved to the justice of the peace or court before whom or which he is brought, it appears to such justice or court that his intent was to commit a felony." To the objection that the circumstances show, if anything, that a felony had been committed, and that the lesser offence of vagrancy merged in the greater charge of felony, I have only to observe that the evidence was not such as conclusively to establish that a felony had been committed by the appellant, and certainly the magistrates did not so find; and even if it had been proved that the appellant had committed one felony, it does not follow that he had not an intent to commit another. The objection that there was no evidence to justify the justices in finding that the appellant "frequented" the street called Victoria-road, as alleged, is of a much more serious character, and I am of opinion that it must prevail. The only evidence on this point of the case was that at ten minutes before two o'clock on the morning of the 5th day of March, 1884, the appellant was found by two constables in Victoria-road, South Shields, having then in his possession part of a brass pump, which they had every reason to suspect had been stolen by him. There was no evidence of the appellant having been in the street on any other occasion with intent to commit a felony-or indeed at all. Can the appellant, then, by any reasonable interpretation of the word, be said to have been a person "frequenting" the street with the intent, &c.? I think not. In Webster's Dictionary the verb "frequent" is thus defined "to visit often; to resort to often, or habitually." This is also the popular understanding of the word. In this sense I think the Legislature used it, for in the same sect. 4 of 5 Geo. 4, I find a variety of acts which once (that is to say, on one single occasion) committed create offences punishable as acts of vagrancy, |