close B., where there were pheasants, for the purpose of taking or killing them; the indictment stated that they were "in inclosed land occupied by Charles White," and both the closes A. and B. were in the occupation of White: the judges held that the defendants were properly convicted: Lord Campbell, C. J., said that a practice had been introduced of naming a particular close in the indictment, which was wholly unnecessary; if it state that the men were in a certain piece of land, describing it, as for instance that it was in the occupation of any person named, it is enough; if the men were together forming one party for the purpose of destroying game in any part of the land, though the land comprise whiteacre, blackacre, greenacre and other fields, and though one of the men be in whiteacre, another in blackacre, and a third in greenacre, they commit one offence within the Act of Parliament: Parke, B., said that if three persons be in a piece of land for the purpose of destroying game there, they are within the Act, although portions of the land be described in the indictment as being in the occupation of different persons; the words " 'open or inclosed" were inserted to prevent parties from supposing that they might destroy game on waste land with impunity and Alderson, B., added, that it was necessary to describe the land, but it might be alleged to be two closes, even though held by different occupiers, and although one close be open and the other inclosed. R. v. Vezzell et al,, 20 Law J. 192 m. Formerly if any name were given to the close, a variance between that and the name proved would be fatal; see R. v. Owen et al., Ry. & M. 118; but now it should seem that the variance might be remedied by amendment. See 14 & 15 Vict. c. 100, s. 1, ante, p. 100. So, if there were any material variance between the indictment and proof in the name of the person stated to be the owner of the land, or in the parish, or other local description, it would have been fatal; but all this may now be remedied by amendment. 14 & 15 Vict. c. 100, s. 1, ante, p. 100. 2. That the defendants or some of them were armed with a gun or other weapon. The words in the Act are any of such persons being armed with any gun, cross-bow, fire-arms, bludgeon, or any other offensive weapon." Where large stones were thrown at the gamekeepers by the poachers, it was left to the jury to say whether they had brought the stones with them, or had found them on the spot, for if the former, they were offensive weapons within the Act. R. v. Grice, 7 Car. & P. 803. Where one of the prisoners had a stick with him, large enough to be deemed a bludgeon, but which he ordinarily used as a crutch, being lame: Taunton, J., held that it was a question for the jury, whether he took it out upon the occasion in question, with intent to use it as an offensive weapon, or merely for the purpose to which he ordinarily applied it; the prisoner was acquitted. R. v. Palmer, Moody M. 70. But although the indictment charge that the prisoners were all armed, proof that any one of them was armed will support it. Where upon an indictment against three persons, charging them with being out at night, armed with guns, with intent to kill game, one of the prisoners was identified as having had a gun on that night, and it was proved that there was a second gun, but the witness could not swear which of the other two prisoners had it: all the prisoners were convicted; but the judge doubting whether the two latter prisoners could be deemed to come within the description in the indictment, as persons armed with guns, reserved the point for the opinion of the judges, who were unanimously of opinion that the conviction was right. R. v. Smith, O'Flanaghan, and Preston, R. & Ry. 368. So, where eight were charged with being armed with guns, and the proof was that two were armed with guns, the rest with bludgeons, they were all convicted, and the judges held the conviction to be right. R. v. Goodfellow et al., 1 Car. & K. 724. So, upon a former statute upon this subject (57 G. 3, c. 90), where it was necessarily stated that the prisoners were "found" armed with guns, &c., and the evidence was, that the flash of one of their guns was seen in a wood, but before the prisoners themselves were seen, they had abandoned their guns, and were afterwards found creeping away upon their knees: the prisoners being convicted, the judges held the conviction to be right, being of opinion that the prisoners were found armed within the meaning of the statute. R. v. Nash et al., R. & Ry. 386. But upon an indictment on that statute, where it was proved that of two prisoners indicted, one only was armed on the night in question, and the other was not then aware that his companion was armed, the judges held that the prisoner who was not armed could not be convicted. R. v. Southern, R. & Ry. 444. Such a case, no doubt, would be within the words of the present statute; but whether upon a fair construction it could be said to be within the meaning of it, may be doubted. 3. That they entered the land, thus armed, for the purpose of taking or destroying game or rabbits, as stated in the indictment. And the word "game" here, shall be deemed to include hares, pheasants, partridges, grouse, heath, or moor game, black game, and bustards. 9 G. 4, c. 69, s. 13. The purpose is proved, by proving facts from which the jury may presume it; if it be proved that they did take or destroy game or rabbits on the land on that occasion, it is the best evidence perhaps that they came there for that purpose. The intent however must be to take or destroy game or rabbits the particular land, which they are stated in the indictment to have entered, &c. See R. v. Barham, Ry. & M. 151. R. v. Gainer, 7 Car. & P. 231. R. v. Capewell and Pegg, 5 Car. & P. 549. The prosecution must appear to have been commenced within twelve calendar months after the commission of the offence. 9 G. 4, c. 69, s. 4. But the commitment of the defendant for trial, R. v. Austin, 1 Car. & K. 621, or even the information and issuing of the warrant to apprehend, or at least the apprehension of the defendant thereon, R. v. Brooks et al., 2 Car. & K. 402, may be deemed the commencement of the prosecution, for this purpose. Taking Fish in Water belonging to a Dwelling-house. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the to wit. day of in the year of our Lord -, unlawfully and wilfully did take and destroy ["take or destroy"] ten fish called trout, in certain water running through certain land ["run through or be in any land"] in the parish of, in the county of called , adjoining ["adjoining or belonging to"] to the dwelling of C. D. there situate, of which said water the said C. D. was then and still is the owner [or, in which said water the said C. D. had then and still has a right of fishery]: 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. 34; 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. A taking or destruction of the fish, or some of them, mentioned in the indictment. See Glover's case, ante, p. 405. This part of the statute, however, does not extend to any person angling in the daytime. 7 & 8 G. 4, c. 29, 8. 34. 2. That the place where they were taken or destroyed, was either a stream running through the land, or a pond in the land, if so stated (for the statute exte adjoining to the dwelling-house of and that the stream or pond either he had a right of fishery in it :-as to wit. Stealing Oysters or Oy Indictment. The jurors for our Lad oath present, that A. B., o day of in the year of our Lord, feloniously did steal, take, and carry away one hundred oysters from a certain oyster bed ["oyster bed, laying, or fishery"], called the property of C. D., and sufficiently marked out and known as the property of the said C. D.: 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. 36; 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 that 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 prove 1. The taking of the oysters, or some of them, from the oyster bed, laying, or fishery, described in the indictment, in the same manner as in larceny. See ante, pp. 371, 369. 2. That the oyster bed, laying or fishery, was at the time the property of C. D., and was sufficiently marked out or known as such. 4. Stealing Things fixed to the Freehold. Stealing Lead, Iron, &c., fixed to Buildings, &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 —, feloniously did rip, cut, and the ["if any person shall steal,— —or rip, cut, or break, with Pent to steal"] fifty pounds weight of lead ["any glass or woodwork belonging to any building whatsoever,—or any lead, iron, copper, brass, or other metal, or any utensil or fixture, whether made of metal or other material, respectively fixed in or to any building,—or any thing made of metal, fixed in any land being private property, or for a fence to any dwelling-house, garden, or area, or in any square, street, or other place dedicated to public use or ornament"] the property of C. D., and then fixed to a certain dwelling-house of the said C. D., situate in the parish of in the county of, with intent the said lead then feloniously to steal, take, and carry away 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. (Second count.) And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, feloniously did steal, take and carry away fifty pounds weight of lead, the property of C. D., and then fixed to a certain dwelling-house of the said C. D., situate in the parish of, in the county of ― : 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. [If the thing taken, &c., be fixed in a square, street, or other like place, it is not necessary to allege it to be the property of any person. 7 & 8 G. 4, c. 29, s. 44. Felony; punishable in the same manner as simple larceny; 7 & 8 G. 4, c. 29, s. 44; that is, by imprisonment, with or without hard labour, for not more than two years (the imprisonment solitary for the whole or any portion of the time), and if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall think fit. Ante, p. 355. Evidence. To maintain the first count of this indictment, the proseautor must prove 1 The ripping, cutting, or breaking the lead from the building, as mentioned in the indictment. 2. That it was then fixed to the dwelling-house of, or in the occupation of, C. D., in the parish, &c., as stated in the indictment. A church has been holden to be a "building" within a former Act upon this subject. R. v. Hickman, 2 East, P. C. 593. 1 Leach, 318. 1 Hawk. c. 45, s. 11. And a cart-shed in a field, made of boards, with a door which locked, but the roof not yet thatched, has been holden to be a building within this Act. R. v. Worrall, 7 Car. & P. 516, An iron bar affixed to the copper hole of a hothouse in a |