1. The coursing, killing, or stealing the deer, as stated in the indictment. 2. That it was committed in land belonging to or in the occupation of C. D.; that the land is in the parish, &c., stated in the indictment; that it is inclosed; and that deer have been and then were usually kept in it. As to beating or wounding deer-keepers in the exercise of their duty, see stat. 7 & 8 G. 4, c. 29, s. 29. Hunting or stealing Deer in uninclosed Places. Indictment. The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the in the year of our Lord day of was duly convicted before J. P., Esquire, one of Her Majesty's justices of the peace for the county of, for that he the said A. B. on [&c., stating the conviction, as thus:-on part of a certain forest called in a certain uninclosed in the parish of, in the county of did unlawfully and wilfully course, kill, and carry away one fallow deer, then in the said uninclosed part of the said forest kept and being; and the said J. P. then adjudged the said A. B., for his said offence, to forfeit and pay the sum of to be paid and applied according to law, and also to pay to C. D., the sum of for his costs in that behalf; and if the said sums should not be paid forthwith, the said J. P. thereby then adjudged the said A. B. to be imprisoned in the house of correction at in the said county, for the space of - calendar months, unless the said several sums should be sooner paid.] And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., being so convicted as aforesaid, afterwards on the day of in the year, in a certain other uninclosed part of the said forest, situate as aforesaid, unlawfully, wilfully, and feloniously did course, kill, and carry away [“course, hunt, snare, or carry away, or kill or wound, or attempt to kill or wound"] one other fallow deer [" any deer"] then in the said last-mentioned uninclosed part of the said forest kept and being: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony; same punishment as for simple larceny; 7 & 8 G. 4, c. 29, s. 26; that is, imprisonment, with or without hard labour for not more than two years, (and the imprisonment solitary for the whole or any part of the time), and if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall think fit. See ante, p. 355. Evidence. To maintain this indictment, the prosecutor must— 1. Produce and prove the conviction for the former offence, or prove it by an examined copy, and give some evidence of the identity of the prisoner. The prisoner may take objections to the validity of the conviction; and if he show it to be invalid, he cannot be convicted on the indictment. R. v. Allen, R. & Ry. 513. Where it was objected that the conviction stated no county where the offence was committed, but it appeared that in the latter part of the conviction, it directed the penalty to be paid to the overseers of the poor of the parish of D., in the county of Oxford "where the said offence was committed,"-Parke, J., held it to be sufficient. R. v. Weale, 5 Car. & P. 135. 2. He must prove the coursing, killing, or stealing of the second deer, as stated in the indictment. See R. v. King, 1 Dow. & Lo. 13 Law J. 43 m. 3. That the offence was committed in the uninclosed part of the forest, &c., mentioned in the indictment; and the parish, &c. Taking or killing Conies or Hares by Night in Warrens, &c. to wit. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of in the year of our Lord in the night time, to wit, about the hour of eleven of the night of the same day, in a certain warren and ground of C. D., in the parish of —, in the county of- then lawfully used for the breeding and keeping of conies [or hares], unlawfully and wilfully did take [and kill] three conies [or hares]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor; 7 & 8 G. 4, c. 29, s. 30; fine or imprisonment, or both; the imprisonment to be with or without hard labour, and the whole or any part of it solitary, as the court shall think fit. Id. s. 4. Evidence. To maintain this indictment, the prosecutor must prove 1. That the defendant took and killed the conies, as mentioned in the indictment. Where it appeared that the prisoner set several wires in a warren, for the purpose of catching rabbits, and a rabbit was caught in one of them; the prisoner afterwards came to the warren, and just as he was about to take up the rabbit, the warrener seized him; the judges held that the catching by a snare was a taking within the meaning of the statute, and that to constitute this offence, it did not require such a taking as was necessary in larceny. R. v. Glover, R. & Ry. 269. 2. That he took them in the night time. And the night time, it should seem, must be understood to mean such a time after sun-set and before sun-rise, when there is not day-light enough to enable you to distinguish a man's countenance,-as was formerly the rule in burglary, at common law. See 1 Hawk. c. 38, s. 2. If it appear to have been in the day time, the prisoner must be acquitted. 3. That the place in which he took the conies, was a warren or ground used for the purpose of keeping or breeding conies or hares respectively, situate in the parish, &c., and in the occupation of or belonging to C. D. Where upon an indictment for this offence, it appeared that the prosecutor kept rabbits, which ran about loose in his rick yard, and that they had been destroyed by poison in the night time: Patteson, J., held that it was not a case within the statute; that the statute applied to places commonly called rabbit warrens, and not to places where a few rabbits might be kept. R. v. Garratt et al., 6 Car. & P. 369. Night Poaching. Indictment. day of -, in the year of our Lord about The jurors for our Lady the Queen, upon their to wit. oath present, that A. B., E. F., and G. H., together with divers other persons to the said jurors aforesaid unknown, on the the hour of eleven in the night of the same day, being then respectively armed with guns ["any gun, cross-bow, fire-arms, bludgeon, or any other offensive weapon"] did then together, by night as aforesaid, and armed as aforesaid, unlawfully enter certain land ["any land, whether open or inclosed"] in the parish of, in the county of then in the occupation of one C. D., and were then, by night as aforesaid, and armed as aforesaid, in the said land, for the purpose therein of taking and destroying game ["taking or destroying any game or rabbits"]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [You may add a count for assaulting or offering violence to the gamekeepers, if necessary, as ante, p. 288. R. v. Finacane et al., 5 Car. & P. 551. You cannot however add a count for shooting, &c., with intent to murder, or do some grievous bodily harm, for that is a felony, this a misdemeanor only. Where there was a separate indictment for shooting at the gamekeeper, and an application was made on the part of the defendant that the prosecutor should elect for which offence he should proceed, both arising out of the same transaction,— Parke, J., held that the prosecutor was not bound to abandon either; they were perfectly distinct offences, and the one could not possibly merge in the other. R. v. W. and J. Handley, 5 Car. & P. 565. It is usual to name the close, if it have a name, or in some other manner to identify it. Where in one count it was called a close, and in another certain inclosed ground, but without name, ownership, occupation, or abuttals, it was holden insufficient. R. v. Ridley, R. & Ry. 515. And where it was described as a certain cover, Vaughan, B., held it to be too general and bad. R. v. Crick, 5 Car. & P. 508. But where it was described as "certain land in the parish of Stoke-upon-Trent, in the county aforesaid, in the possession and occupation" of J. S.,Taunton, J., held it to be sufficient; R. v. Mellor, 2 Dowl, 173; and the same was laid down by Ld. Campbell, C. J., in R. v. Uezzell et al., 20 Law J. 192 m. It is unnecessary to state that the land is inclosed or uninclosed. R. v. Andrews, 2 Mo. & R. 37. Misdemeanor; transportation for not more than fourteen nor less than seven years;—or imprisonment and hard labour for not more than three years. 9 G. 4, c. 69, s. 9. The offence can be tried only before justices of gaol delivery; 9 G. 4, c. 69, s. 6; and consequently not at sessions. Evidence. To maintain this indictment, the prosecutor must prove 1. That the prisoners, or the prisoners and others, to the number altogether of three or more, entered the land men tioned in the indictment, or were in it, in the night time, which is defined-"to commence at the expiration of the first hour after sun-set, and to conclude at the beginning of the last hour before sun-rise." 9 G. 4, c. 69, s. 12. A variance between the hour stated in the indictment and that proved, will not be material, provided it appear to be within the hours here mentioned. As to the entry, the words of the Act are unlawfully enter or be in any land;" which words would seem to include the tenant of the land himself, if he have no right by his lease or otherwise to take or destroy the game there. Formerly it was deemed necessary to show that the prisoners, or the prisoners and others to the number of three, were all in the same close at the same time; and where an indictment charged that the prisoners with others were in Rodborough Hill Brake in the night time, for the purpose, &c, and the evidence was that one only was seen in the brake, the others being in an adjoining wood, separated from the break by the high road: Patteson, J., held that the evidence did not sustain the indictment; they should all be proved to have been in the place mentioned in the indictment. R. v. Dowsell et al., 6 Car. & P. 398. But it was afterwards holden that where two entered a preserve and two others remained outside, but they were all of the same party, and all there for the same joint purpose, all might be found guilty. R. v. Locket, 7 Car. & P. 300. R. v. Passey, Id. 282. R. v. Worker, Ry. & M. 165. So, where, upon an indictment against six men for this offence, it was proved that they were all in a lane at the side of the field named in the indictment, setting nets, one of them remained with the nets, whilst the others went into the field to beat for game, they then came out, took up the nets, and had proceeded some distance together on the road when they were apprehended: it was objected that as those who were in the field were not identified, all must be acquitted; but Wilde, C. J., told the jury, that if they were of opinion that all the defendants acted in concert, some going into the field beating for game, whilst others rendered their aid by remaining outside the hedge, they were all liable to be found guilty; the defendants being all found guilty, Wilde, C. J., reserved the question, whether his direction to the jury was correct, for the opinion of the fifteen judges, who, after argument and consideration, held the direction to be correct. R. v. Whittaker et al., 2 Car. & K. 636. And lastly, in a very recent case, reserved for the opinion of the criminal appeal court, it was stated that the prisoner with two others, armed with guns, went together in the night time for the purpose of killing game; they were seen together in close A., one of the closes mentioned in the indictment, but not in search of game, there being no game in it, but one of them was seen in the adjoining |