wheat, ["corn, grain, or pulse, whether standing or cut down, or any part of a wood, coppice, or plantation of trees, or any heath, gorze, furze, or fern, wheresoever the same may be growing"] the property of C. D., then standing and growing 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.

Felony; transportation for seven years;—or imprisonment, [with or without hard labour, s. 27] for not more than two years, and if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall think fit. 7 & 8 G. 4, c. 30, s. 17.

Evidence.

To maintain this indictment, the prosecutor must prove

That the prisoner set fire to the wheat in question, and that it was the property of C. D. And if it be proved that he did it wilfully, the jury may fairly presume that he did it maliciously. If the crop were standing when set fire to, it should seem that the local situation of it must be stated and proved; but if cut down, it is otherwise.

Setting fire to Stacks of Corn, Peat, Wood, &c.

Indictment.

The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the day of in the year of our Lord unlawfully, maliciously, and feloniously did set fire to a certain stack of wheat ["stack of corn, grain, pulse, tares, straw, haulm, stubble, furze, heath, fern, hay, turf, peat, coals, charcoal, or wood, or any steer of wood"] of the goods and chattels of 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. [It is not necessary to mention the parish, &c., where the stack was. R. v. Woodward, Ry. & M. 323. Where the indictment charged the offence to have been committed "feloniously, voluntarily, and maliciously," omitting "unlawfully," it was holden bad. R. v. Turner and Reader, Ry. & M. 239. Where it was objected to an indictment, that it charged the prisoner with setting fire to a stack of "barley," corn and grain being the words in the statute, Patteson, J., held it to be correct; R. v. Swatkins, 4 Car.

& P. 548; and it should seem that if it had stated it to be "corn" or 66 grain," it would have been bad for want of

certainty.

Felony; transportation for life, or not less than fifteen years; or imprisonment, [with or without hard labour, and solitary for not more than a month at a time, or three months in a year, s. 12] for not more than three years. 1 Vict. c. 89, s. 10. Accessories before the fact, the same punishment; accessories after the fact, imprisonment, §c., for not more than two years. Id. s. 11.

An attempt to commit this offence, is made felony, and punishable with transportation for not more than fifteen years, or imprisonment, [with or without hard labour, &c., s. 11] for not more than two years. 8 & 9 Vict. c. 29, s. 7.

Evidence.

To maintain this indictment, the prosecutor must prove— That the prisoner set fire to the stack of wheat, as mentioned in the indictment, and that it was then the property of C. D. Where the prisoner was indicted for setting fire to a stack of straw, and it appeared that the stack was partly of straw, partly of haulm or stubble, Parke, J., reserved for the opinion of the judges, whether this was a stack of straw, within the meaning of the Act: but the judges gave no opinion upon it, the case being decided upon a defect in the indictment, as above mentioned. R. v. Turner and Reader, Ry. & M. 239. Where the indictment was for setting fire to a stack of beans, the judges held that beans were a species of pulse, and therefore within the statute. R. v. Woodward, Ry. & M. 323. Where the indictment charged the prisoner with setting fire to a stack of wood, and it appeared that the wood set fire to, consisted of a score of faggots, heaped one on the other, in a kind of temporary loft over a gateway: Park, J,, held that this was not a stack of wood within the meaning of the Act. R. v. Aris, 6 Car. & P. 348. In R. v. Turner and Reader, above mentioned, it appeared that the prisoners, in setting fire to a haulm stack, had set fire also to two barns adjoining to it, where there was a quantity of straw and oats; and Parke, J., left it to the jury to say, whether in setting fire to the haulm stack, the defendants did not intend also to set fire to the barns. It is not necessary that the stack should be burnt or destroyed; if set fire to, it is sufficient. R. v. Salmon, R. & Ry. 26. The place where the stack was situate need not be mentioned; or if mentioned, need not be proved as laid. R. v. Woodward, supra.

If it appear that the prisoner set fire to it purposely, this will be sufficient prima facie evidence of his having done it

maliciously. Where a man was indicted for setting fire to a stack of straw, and it appeared that it had been set on fire by the prisoner's having fired a gun very near to it; the prosecutor having proved this, proposed to prove that the stack had also been set fire to the day before, and that the prisoner was seen at the same time very near it with his gun this was objected to as being evidence of another felony; but Maule, J., held it to be admissible; he said that although it might be proof of another felony, that circumstance did not render it inadmissible, if the evidence were otherwise receivable. R. v. Dossett, 2 Car. & K. 306.

If the evidence only prove an attempt to set fire to the stack, the defendant may be found guilty of the attempt upon this indictment, 14 & 15 Vict. c. 100, s. 9, ante, p. 124, and be punished as mentioned, ante, p. 504.

to wit.

Destroying Hop-binds.

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 -, unlawfully, maliciously, and feloniously did cut and destroy one thousand hop-binds, the property of C. D., then growing on poles in a certain plantation of hops 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.

Felony; 7 & 8 G. 4, c. 30, s. 18; transportation for not more than fifteen years, or less than ten ;—or imprisonment, [with or without hard labour, and solitary for not more than one month at a time, or three months in a year, s. 3] for not more than three years. 1 Vict. c. 90, s. 2.

Evidence.

To maintain this indictment, the prosecutor must prove

1. That the prisoner cut or destroyed the hop-binds in question, or part of them; and that they were at the time growing on poles in the plantation described in the indictment. The act itself, if wilful, will be primâ facie evidence of malice.

2. That the plantation was then in the possession or occupation of C. D., and that it is situate as described in the in

dictment. If there be any variance in this respect, between the indictment and proof, the indictment may be amended.

14 & 15 Vict. c. 100, s. 1. Ante, p. 100.

Destroying or Damaging Trees, Shrubs, &c.

Indictment.

See

The jurors for our Lady the Queen, upon their to wit. oath present, that A. B., on the day of in the year of our Lord -, unlawfully, maliciously, and feloniously did cut, root up, and destroy ["cut, break, bark, root up, or otherwise destroy or damage"] a certain oak tree of C. D., ["the whole or any part of any tree, sapling, or shrub, or any underwood"] then growing in a certain pleasure ground of the said C. D., [“ park, pleasure ground, garden, orchard, or avenue, or any ground adjoining or belonging to any dwelling-house,"] situate in the parish of - in the county of; thereby doing injury to the said C. D., to an amount exceeding the sum of one pound: 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. [As to cutting or rooting up a tree, &c., with intent to steal it, see ante, p. 413.

Felony; transportation for seven years;-or imprisonment, [with or without hard labour, s. 27] for not more than two years, and if a male, to be once, twice, or thrice publicly or privately whipped, if the court think fit. 7 & 8 G. 4, c. 30, s. 19.

The same punishment, if the tree, &c., be growing elsewhere, and the amount of injury done exceed the sum of five pounds. Id.

Evidence.

To maintain this indictment, the prosecutor must prove

1. The cutting, rooting up, or destroying of the tree in question, as stated in the indictment. Upon an indictment on stat. 9 G. 1, c. 22, s. 1, which was similar to this, it appeared that the trees there cut down, were not thereby actually destroyed, but might be again grafted on other stocks, and it was objected that from the words in the statute "or otherwise destroy," the cutting must be such as to destroy the tree, to be within the meaning of the Act: but the judges held that the cutting down of the trees, without the total destruction of them, was an offence within the meaning of the statute. R.V

Taylor, R. & Ry. 373. Where the indictment described the trees as pear trees, and from the evidence they appeared to be grafted seedlings, about seven feet high, intended for sale: it was objected that these were only plants, and the subject of a summary conviction under another section of the statute; but Parke, J., held that they were properly described as trees. R. v. Hodges, Moody & M. 341.

2. That it was done maliciously. If proved to have been done wilfully, the jury may fairly presume that it was done maliciously. As in some cases, however, it may be doubtful whether the prisoner did not cut and root up the trees with intent to steal them, it may be advisable in such cases to add a count on stat. 7 & 8 G. 4, c. 29, s. 38, as ante, p. 413.

3. That the tree at the time was growing in a pleasureground of C. D., in the parish &c. The words in the Act are park, pleasure-ground, garden, orchard, or avenue, or any ground adjoining or belonging to any dwelling-house." Where the tree was described as growing in ground adjoining to a dwelling-house, and it appeared that the ground was separated from the house by a narrow paved entry and a paling : Parke, J., held that the evidence did not maintain the indictment; ground, to be adjoining to a dwelling-house, must be immediately contiguous to it, without any thing intervening; but he left it to the jury to say whether it was not a garden. R. v. Hodges, supra.

4. That the damage done exceeded in amount the sum of one pound. If the tree were growing elsewhere than in a park, pleasure-ground, &c., the injury done must be laid and proved to exceed five pounds. 7 & 8 G. 4, c. 30, s. 19.

4. Malicious Injuries to Mines.

Setting fire to a Coal Mine.

Indictment.

The jurors for our Lady the Queen upon their

to wit. oath present, that A. B., on the

day of

in the year of our Lord -, unlawfully, maliciously, and feloniously did set fire to a certain mine of coal ["mine of coal or cannel coal"] of 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.