REG. v. GILHAM AND OTHERS. 1884. The 3rd section of the Act aforesaid is as follows: Any person who between the 1st of March and the 1st day of August in any year after the passing of this Act shall knowingly and wilfully shoot or attempt to shoot, or use any boat for the purpose of shooting or causing to be shot, any wild bird, or shall use any lime, trap, snare, net, or other instrument for the purpose of taking any wild bird, or shall expose or offer for sale, or shall have in his control or possession Wild birds after the 15th day of March, any wild bird recently killed or taken, shall Shooting spar on conviction of any such offence before any two justices of the peace in rows from England and Wales or Ireland, or before the sheriff in Scotland, in the case traps-Autho. of any wild bird which is included in the schedule hereunto annexed, forfeit and pay rity of owner for every such bird in respect of which an offence has been committed a sum not exor occupier of ceeding 17., and in the case of any other wild bird, shall, for a first offence, be reprimanded, and discharged on payment of costs, and for every subsequent offence forfeit and pay for every such wild bird in respect of which an offence is committed a sum of money not exceeding 5s., in addition to the costs, unless such person shall prove that the said wild bird was either killed or taken, or bought, or received during the period in which such wild bird could be legally killed or taken, or from some person residing out of the United Kingdom. This section shall not apply to the owner or occupier of any land, or to any person authorised by the owner or occupier of any land, killing or taking any wild bird on such land not included in the schedule hereto annexed. land. The schedule to the Act annexed does not include the "sparrow." The following facts were proved in evidence before us in relation to the charges against the said defendants: The defendant Richard Gilham, in company with two other men, not charged before us, went out on the nights of the 15th and 17th March, 1884, with nets to catch sparrows. A large number of birds were taken by him on those occasions, such birds being caught, as admitted by the defendant, in various places, including certain fields, and the defendant admitted that he had received no authority or permission from the owners or occupiers of any such places to catch any of the said birds. The defendant produced no evidence to show that he was authorised on such occaion, or on any other occassion, to take birds on the lands where the said birds had been caught by him. The birds so taken by Gilham were sold by him to the manager of an hotel, and brought in bags into a small meadow adjoining the hotel and occupied therewith, and were taken from the bags and placed in traps for the purpose of being shot at in the course of a "starling and sparrow shoot," which had been advertised to take place at the hotel on the 18th March. The defendants, Richard Read, Charles Chatfield, John Smart, and Job Sherwood took part in shooting at the birds as they were liberated from the traps. They paid at the rate of 1d. a head for each bird supplied to the traps. The shooting of the birds took place in the said meadow with the permission of the said manager. On behalf of the defendant Gilham, it was contended that the prosecution had failed to prove that he did not have authority to take the birds in the places where he actually captured them, no witnesses having been called by the prosecution, landowners or occupiers, to prove this; and on behalf of the other defendants it was contended that they came within the exception at the end of the 3rd section of the Wild Birds Preservation Act, 1880, because they had the authority of the occupier of the field used by them on the occasion in question, when they shot and attempted to shoot wild birds. REG. v. GILHAM AND OTHERS. 1884. traps-Autho land. The complainant contended that the exemption relied on by the defendants Read, Chatfield, Smart, and Sherwood applied Wild birdsonly to an owner or occupier, or someone employed by him, on Shooting sparhis own land only, who took or killed wild birds actually free at rows from the time they were found on such land, the proviso having been rity of owner enacted to protect the crops on such land from destruction when or occupier of birds are over abundant; and the complainant further contended that the proviso did not apply to snarers like the defendant Gilham, who captured birds on certain land, and then carried away such birds in bags to other land, for the purpose of putting them into traps and shooting at them for money, as on the occasion in question; and, moreover, that, as the defendant Gilham had called no evidence to show he was authorised to capture wild birds by the owners or occupiers of the lands on which he had taken the birds in question, but had admitted that he netted them without any such authority, we were bound to convict him for using nets on the 15th and 17th March for the purpose of taking wild birds, and for having wild birds recently caught in his possession. The complainant further contended that the proviso could not possibly apply to the other defendants, who killed wild birds in the meadow adjoining the hotel, the birds not having been taken on that land, for the words of the proviso "on such land" must be read with the words of the entire section, and therefore the defendants had committed an offence under the Act. We were of opinion that all the contentions of the complainant were erroneous in law, and we therefore dismissed the summonses against the defendants. The questions of law for the opinion of the court are therefore as follows: 1. Ought we to have convicted the defendant Gilham for using a net for the taking of wild birds, and of having wild birds in his control or possession, he not having given any evidence to show that the owners or occupiers of the land on which the birds were taken had given him any authority to take the birds thereon? 2. Were the other defendants under the circumstances set forth above within the exemption of the 3rd section of the Wild Birds Preservation Act, 1880? Morton Smith for the appellant.-The defendant Gilham admitted that he had received no authority or permission from the owners or occupiers of the lands on which he took the birds, and the decision of the magistrates is, therefore, in his case, clearly erroneous. As to the other defendants, the exemption at the end of the section was inserted by the Legislature for the purpose of making it legal for farmers to protect their crops against the ravages of birds, but was clearly not intended to REG. v. GILHAM AND 1884. apply to such circumstances as those stated in the case before the court. This is shown by an examination of the schedule, which shows that all the birds which are generally supposed to prey upon the farmer's crops are carefully omitted. [HAWKINS, J.-Are not the defendants protected by the words Wild birds authorised by the owner or occupier of any land killing or Shooting spar- taking any wild bird on such land"?] They were not authorised by the owners or occupiers of the lands to which the wild birds. rity of owner belonged and on which they were taken. The court will not or occupier of allow the Act to be evaded by taking the birds secretly in one place and destroying them openly elsewhere, since it would always be possible to obtain in some way the authority of a small owner or occupier for this purpose. traps-Autho land. Raven for the respondents.-The defendants are protected by the plain words of the Act, within which they acted, and the court will not strain the words of a penal statute so as to include them. Further, it is not to be assumed against them that they knew that the birds were improperly taken without the authority of the owners of the land on which they were taken, and the prosecution offered no proof that they were aware of this. Under these circumstances the justices were right in dismissing the summonses against them. Morten Smith, in reply. GROVE, J.-In this case the defendants were charged under These REG. v. GILHAM AND OTHERS. 1884. land. With regard to the other men the case is different. The facts are, that several dozen sparrows were put into bags, and were then taken out and put under flower pots, which were used as traps, and shot at as they were liberated from the traps. It has been argued to-day that, as far as these other defendants are concerned, it does not appear that these birds were not tame Wild birds sparrows, and therefore outside the Act. Is it credible that Shooting sparrows from anyone could suppose that these dozens of unfortunate birds traps-Authowere tame birds? It would of course be possible to collect some rity of owner dozens of tame sparrows throughout the breadth of England, but or occupier of I should think that it would take some time to do so. birds, then, were shot on land occupied by the manager of an hotel in a field adjoining the hotel and occupied therewith, and they were shot with the permission of the landlord. It is argued that that was the land to which they belonged, and the land contemplated in the proviso to the section which states that, "This section shall not apply to the owner or occupier of any land, or to any person authorised by the owner or occupier of any land, killing or taking any wild bird on such land not included in the schedule hereto annexed." Now, in my view, that proviso means that, as some wild birds may damage crops or otherwise inflict injury on persons owning land, the farmer or other occupier may shoot the birds for his own protection, and I do not think that it is intended to go any further than this. But it is also said in favour of the other defendants that for all they knew the defendant Gilham might have taken the birds on his own land, or the hotel keeper might have purchased them from persons who had captured them either on their own land or on land where they had the authority of the owner or occupiers to capture them, and that the shooters had the right to assume that the birds had been taken with the authority and permission of the owners and occupiers of the land on which they were taken. In my opinion that is such a strained construction of the words of the section that I should require to be convinced by very cogent reasoning that this was the meaning of the Legislature before I could accede to it. The Act, on the contrary, says in terms that the parties must bring themselves within the proviso by proof. The section clearly provides that any person committing the acts specified shall, on conviction, forfeit a certain penalty "unless such person shall prove that the said wild bird was either killed, or taken, or bought, or received during the period in which such wild bird could be legally killed or taken, or from some person residing out of the United Kingdom.' Here the defendants have not, as far as I see, given a tittle of evidence to protect themselves from the consequences of the section, and I therefore think that this decision is entirely wrong, and that the case must be remitted to the justice to deal with the defendants according to the terms of the section. I only wish to say further that it must not be taken that I decide that, where a person takes birds on his own land and sends them to be shot on the land of another person, persons can legally shoot A A A 2 REG. GILHAM AND them there with the permission of the owner or occupier. I do not decide that, and it may or may not be so. HAWKINS, J.-I am also of the same opinion. I am surprised to think that the gentlemen who decided this case could have 1884. come to the conclusion they did. To my mind the case is clear. Wild birds The 3rd section of the Act enacts that, any person who between Shooting spar- the 1st day of March and the 1st day of August in any year after rows from the passing of the Act shall knowingly and wilfully shoot or rity of owner attempt to shoot any wild bird, or shall use any lime, trap, or occupier of snare, net, or other instrument for the purpose of taking traps-Autho land. any wild bird, or shall expose or offer for sale, or shall Solicitor for the appellant, A. Leslie. |