The 9 Geo. 1, c. 22, was considered as extending, and not as abridging, the offences described in the 22 & 23 Car. 2, c. 7. Where the prisoner had been convicted on an indictment framed on the 9 Geo. 1, c. 22, for killing a mare and a colt, it was moved in arrest of judgment, first, that the mare and colt were not averred in the indictment to be cattle within the meaning of the Act; and, secondly, that the word cattle did not necessarily include horses, mares, and colts. In support of these objections, several statutes were cited, in which different sorts of animals were particularly specified, (d) and several others, in which "horses" and "horses and mares" seemed to be contradistinguished from and not included in the word "cattle."(e) But the judges agreed unanimously that as the 22 & 23 Car. 2, c. 7, had made the offence of killing horses by night a single felony, the 9 Geo. 1, c. 22, was only to be considered as an extension of that Act; and some precedents of capital convictions were cited upon this branch of the statute, though none of executions. It was, therefore, agreed that judgment of death should be given against the prisoner at the next assizes.(f) This point received a similar determination in subsequent cases.(g) And it is observed that it is plain that the legislature must have intended to include horses in the word "cattle," when in the statute of Car. 2 they speak of “horses, sheep, or other cattle;" and by the statute of George the First they exclude from clergy such as kill, &c., any cattle: which latter statute was evidently intended to enlarge, and not to restrain, the description of the felony.(h) It was subsequently decided that pigs were cattle within the 9 Geo. 1. Upon conviction for poisoning pigs, the point was saved, whether pigs were cattle within the Act, and the judges held that they were.(i) The same decision more recently took place with respect to asses. The prisoner was convicted under the Act of maiming and *wound[*1059 ing two asses, and Richards, C. B., saved the point whether asses were within that Act; and, upon a case reserved, the judges (eleven being present) held that they were (j)

It was also held upon the 9 Geo. 1, c. 52, that the repealed clause extended to such as should maim or wound any cattle, though the cattle were not destroyed, which by the 22 & 23 Car. 2, c. 7, was left a misdemeanor at most, punishable only by action to recover treble damages. It was decided, therefore, upon the 9 Geo. 1, c. 22, that the maiming or wounding need not be mortal; and that the wounding need not even be such as to cause a permanent injury. Thus, upon an indictment which charged the prisoner, in one count, with maiming, and in another with wounding, a gelding, and upon proof that he had maliciously, and with an intent to injure the prosecutor, driven a nail into the frog of the horse's foot, whereby the horse was rendered useless to the owner, and continued so at the time of the trial, but was stated to be likely to do well, and to be perfectly sound again in a short time, a case was reserved upon a doubt whether, as the horse was likely to recover, and as the wound was not a permanent injury, the offence was within the statute; but the judges held the conviction right, and considered the word "wound" in the 9 Geo. 1 to be used as contradistinguished from a permanent injury, such as maiming.(k) The clause in the late Act appears to admit of a similar construction.

Upon an indictment for maiming a horse, it was proved that the prisoner was thrown by the horse, and dragged some distance along the ground, and that the prisoner got up and laid hold of the tongue of the horse, a part of which was left in his hand, which he threw away. There was no evidence to show that the prisoner

(d) 3 & 4 Ed. 6, c. 19; 5 & 6 Ed. 6, c. 14; and 31 Geo. 2, c. 40, for regulating the sale of cattle.

(e) 12 Car. 2, c. 4 (book of rates); 22 Car. 2, c. 13; 14 Geo. 2, c. 6; 15 Geo. 2, c. 34. But see the observation in 2 East P. C. c. 22, s. 18, p. 1075, that the argument from the statutes 14 & 15 Geo. 2, will lose much of its force from adverting to the preamble of the first of those statutes.

(f) Paty's case, 2 Black. Rep. 721; 1 Leach 72; 2 East P. C. c. 22, s. 18, p 1074. (7) Mott's case, 1 Leach 73, note (a); Moyle's case, cor. Buller, J., 2 East P. C. c. 22, s. 18, p. 1076.

(h) 2 East P. C. c. 22, s. 18, p. 1076.

(i) Rex v. Chapple, MS. Bayley, J., and R. & R. 77.

() Rex v. Whitney, MS. Bayley, J., and R. & M. C C. R. 3.

(k) Haywood's case, 2 East P. C. c. 22, s. 20, p. 1076; R. & R. 16.

VOL. II.-52

used any instrument, nor was it all shown in what way this portion of the tongue had been separated from the residue, but it might possibly have been done by the tongue being drawn against a sharp tooth, which the horse had. The wound had healed, and the horse was able to work as well as before, the only injury resulting from the loss of the point of the tongue being that it could not eat its corn quite so fast as before. Wightman, J., having consulted Patteson, J., held that there was no such permanent injury inflicted on the horse as would support the charge of maiming.

The two first counts charged the prisoner with having unlawfully, feloniously, and maliciously killed the mare, against the form of the statute. The first, stating the means used by the prisoner for that purpose, namely, the pouring nitrous acid into the left ear of the mare, and also stating as a fact that the prisoner thereby killed the mare, and the second count, merely stating as a fact that the prisoner killed the mare; the third count charged the prisoner with having unlawfully, feloniously, and maliciously maimed the mare, against the form of the statute; and the fourth count charged the prisoner with having unlawfully, feloniously, and maliciously wounded the mare, against the form of the statute. It was *1060] proved, that the prisoner did pour a quantity of nitrous acid, which he had shortly before purchased, into the mare's left ear; and that he had either also poured some of it into the left eye, or, what was more probable, that some of the acid, which he had poured into the ear, had run along a furrow which it had made from her left ear upon her left temple, and so into her left eye, and that he had thereby occasioned the immediate blindness of that eye. The mare continued to live, in extreme pain, about ten days, when in order to put her out of her misery. she was stuck with a knife, and bled to death. Two surgeons stated, that the injuries which were done to the ear (which was produced) were not wounds but ulcers, though such ulcers would have turned to wounds. Upon this state of facts, the nitrous acid not having been the proximate and immediate cause of the death of the mare, and the surgeons having deposed that the nitrous acid had not produced what they could technically call wounds, the court recommended the jury, if they were satisfied of the guilt of the prisoner, to find their verdict against him on the third count of the indictment, and to acquit him on the other counts; the jury having found a verdict accordingly, a case was reserved upon the question whether the injury done to the eye of the mare in the manner and by the means above stated was a maiming within the meaning of the 7 & 8 Geo. 4, c. 30, s. 16; and the conviction was affirmed.(m)

The prisoner was indicted under the 4 Geo. 4, c. 54, s. 2, for feloniously wounding a sheep, and it appeared that he had set a dog at the sheep, and that the dog, by biting it, inflicted several severe wounds Park, J. A. J., This is not an offence at common law, and it is only made so by statute; and I am of opinion that injuring a sheep by setting a dog to worry it, is not a maiming or wounding within. the meaning of the statute."(n)

If a person maliciously set fire to a building in which a cow is, and the cow is burnt to death by the fire, this is a killing within the statute. The prisoner was indicted under the 7 & 8 Geo. 4, c 30, s. 16, for maliciously killing a cow, and it appeared that the building, in which the cow was kept, had been set fire to by the prisoner, and that the cow had been burnt to death in it. Taunton, J.: "If the prisoner set this place on fire while the cow was in it, and the cow was thereby burnt to death, that is a killing the cow by him within the meaning of this Act of Parliament."(o)

Under the repealed clause of the 9 Geo. 1, c. 22, malice against the owner of the

(1) Reg. v. Jeans, 1 C. & K. 539 (47 E. C. L. R.). There was also a count for wounding, but it was admitted that this was not proved, as no instrument was used.

(m) Rex v. Owens, R. & M. C. C. R. 205. See Rex v. Murrow, R. & M. C. C. R. 456, ante, vol. 1, p. 985.

(n) Rex v. Hughes, 2 C. & P. 420 (12 E. C. L. R.). But see Elmsly's case, 2 Lew. 126, where Alderson, J., thought the wound inflicted by the bite of a dog was a wound within the 9 Geo. 4, c. 31, but intended to reserve the point if it became necessary. As to what injuries constitute wounds, see vol. 1, p. 982, et seq. C. S. G.

(0) Rex v. Haughton, 5 C. & P. 559 (24 E. C. L. R.).

cattle was a necessary ingredient to constitute the offence there created, and numerous decisions took place as to the nature and proof of this malice, to which it was unnecessary to refer, as under the late statute the offence will be complete, whether it be committed from malice conceived against the owner, or "otherwise."(p) On the trial of an indictment under the 7 & 8 Geo. 4, c. 30, *s. 16, for unlawfully and maliciously wounding cattle, it was not necessary to show [*1061 personal malice against the owner of the property. It was enough that there was a mischievous motive, though not particular malice towards the owner.(g)

Under the 7 & 8 Geo. 4, c. 30, s. 16, the punishment of maliciously wounding cattle was transportation for life, &c. By the 1 Vict. c. 90, s. 2, this punishment was repealed, and transportation for fifteen years, &c., substituted. Whilst this state of the law existed, a prisoner was indicted for maliciously wounding a mare, and it was clearly proved that he did wound her; but there was no proof of malice against any one; it was contended that, as the punishment must now be inflicted under the 1 Vict. c. 90, s. 2, the 7 & 8 Geo. 4, c. 30, s. 25, which made " "every punishment and forfeiture by this Act imposed" applicable whether the act were done from malice against the owner or otherwise, no longer applied; and therefore malice must be proved. But, on a case reserved, it was held that the prisoner might properly be convicted, as the intention of the 1 Vict. c. 90, s. 2, was merely to alter the punishment and not the nature or proof of the offence.(r)

It should seem that the indictment upon the late statute ought, like an indictment upon the repealed clause of the 9 Geo. 1, c. 52, to specify the kind of cattle injured, and that such statement must be supported by the evidence. In an indictment upon the 9 Geo. 1, c. 22, the prisoner was charged with maliciously killing certain cattle, viz, a mare, and he was convicted, but upon referring to the evidence, it did not appear that there was any evidence of the sex of the animal killed. A case being reserved, the first question considered was, whether the allegation that the prisoner killed certain cattle, without specifying what, would have been sufficient, because then what was stated under the videlicet might be rejected; and the judges thought that it would not have been sufficient, and they were clear that it was essential that some evidence should have been given that the animal was a mare.(8)

If a prisoner were indicted for maliciously killing cattle by poison, other acts of administering poison would be admissible in order to show the intent. The prisoner was indicted for a misdemeanor in administering sulphuric acid to six horses, with intent maliciously to kill them, and it appeared that the prisoner mixed sulphuric acid with a quantity of corn, and that, having done so, he gave each horse his feed, all the horses being in the same stable. Sulphuric acid is sometimes given to horses by grooms, under an idea that it will make their coats shine. Park, J. A. J., held that several acts of administering sulphuric acid were admissible, as they might go to show whether it was done with the intent charged in the indictment; and he left it to the jury to say, whether the prisoner had administered the poison with the intent imputed in the indictment, or whether he had done it under the impression that it would improve the appearance of the horses; for that in the latter case they ought to acquit him.(t)

[*1062

Every principal in the second degree, and every accessory before the fact, is punishable in the same manner as the principal in the first degree, and every accessory after the fact is liable to be imprisoned for any term not exceeding two years.(u)

The 12 & 13 Vict. c. 92, makes any person cruelly beating or otherwise illtreating any cattle, &c., or improperly driving the same, liable to be summarily convicted.(v)

(p) Sec. 58, ante, p. 1018.

(9) Wilson's case, 1 Lew. 226.

(r) Reg. v. Tivey, 1 Den. 63; 1 C. & K. 704 (47 E. C. L. R.). The ground of the decision was communicated to me by Patteson, J.

(8) Rex v. Chalkley, R. & R. 258.

(t) Rex v. Mogg, 4 C. & P. 364 (19 E. C. L. R.). The learned judge also held that the evidence proved a joint administering of the sulphuric acid to all the horses.

(u) Ante, p. 1021, where the other general provisions of the Act are stated.

(v) And see the 17 & 18 Vict. c. 60.

*1063]

*CHAPTER THE FORTY-SEVENTH.

INJURIES TO GROWING CORN, WOODS, ETC., AND TO STACKS OF CORN, ETC.

By the 24 & 25 Vict. c. 97, s. 16, "whosoever shall unlawfully and maliciously set fire to any crop of hay, grass, corn, grain, or pulse, or of any cultivated vegetable produce, whether standing or cut down, or to any part of any wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern, wheresoever the same may be growing, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not less than five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping."(b) Sec. 17. "Whosoever shall unlawfully and maliciously set fire to any stack of corn, grain, pulse, tares, hay, straw, haulm, stubble, or of any cultivated vegetable produce, or of furze, gorse, heath, fern, turf, peat, coals, charcoal, wood, or bark, or to any steer of wood or bark, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping."(c)

Sec. 18. "Whosoever shall unlawfully and maliciously by any overt act attempt to set fire to any such matter or thing as in either of the last two preceding sections mentioned, under such circumstances that if the same were thereby set fire to, the offender would be, under either of such sections, guilty of felony, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven and not less than five(a) years or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(d)

*1064]

*The cases relating to the subjects contained in this chapter have already been inserted, and it will suffice to state the points decided by them in this place.

A stack of coal seed straw and wheat stubble, or haulm, is not a stack of straw.(e) So a stack composed of sedges and rushes, the produce of the fens, is not a stack of straw; for straw, in its usual and legal acceptation, means the straw of wheat, barley, oats, and rye.(f) But a stack principally composed of wheat straw, with stubble laid on the top to prevent its blowing away, is a stack of straw.(g)

The judges will take judicial notice that beans are "pulse,"(h) and that barley is corn or grain,(i) and therefore indictments using those words are good.

A stack of the flax plant with the seed in it is a stack of grain.(j)

A score of faggots piled up one on another in a loft under an archway do not constitute a stack of wood. (k) But a stack of hay may be under a building.(?) (a) 27 & 28 Vict. c. 47.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 17, and 9 Geo. 4, c. 56, s. 18 (I.). The clause is extended to crops of hay, grass, and any kind of cultivated vegetable produce. As to hard labor, &c., see ante, p. 1022.

(c) This clause is taken from the 1 Vict. c. 89, s. 10.

The clause is extended to stacks of all kinds of cultivated vegetable produce, gorse, and bark. As to hard labor, &c., see ante, p. 1022.

As to the words in italics,

(d) This clause is taken from the 9 & 10 Vict. c. 25, s. 7. see the note to sec. 7, ante, p. 1030. As to hard labor, &c., see ante, p. 1022.

(e) Rex v. Tottenham, R. & M. C. C. 461, ante, p. 1042.

(f) Reg. v. Baldock, 2 Cox C. C. 55, unte, p. 1043.

(g) Rex v. Newill, R. & M. C. C. 458, ante, p. 1043.

(h) Rex v. Woodward, R. & M. C. C. 323, ante, p. 1049.

(i) Rex v. Swatkins, 4 C. & P. 548 (19 E. C. L. R.), ante, p. 1049.

() Reg. v. Spencer, D. & B. 131, ante, p. 1042.

(k) Rex v. Aris, 6 C. & P. 348 (25 E. C. L. R.), ante, p. 1042.

(1) Reg. v. Munson, 2 Cox C. C. 186, ante, p. 1041.

An indictment for setting fire to certain wood, to wit, twenty yards square of wood, is bad; for proof of setting fire to a single detached tree would support it.(m) The offence of setting fire to a stack is not local.(n)

An indictment for setting fire to a stack need not allege any intent to injure.(o)

*CHAPTER THE FORTY-EIGHTH.

OF INJURING AND DESTROYING TREES, SHRUBS, OR UNDERWOOD.

[*1065

OFFENCES of the kind mentioned in the title to this chapter were treated only as trespasses and misdemeanors by several ancient statutes: they were afterwards made offences of the degree of felony; but all the former statutes upon this subject are repealed.

By the 24 & 25 Vict. c. 97, s. 20, "whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwellinghouse (in case the amount of the injury done shall exceed the sum of one pound), shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

Sec. 21. "Whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, growing elsewhere than in any park, pleasure-ground, garden, orchard, or avenue, or in any ground adjoining to or belonging to any dwellinghouse (in case the amount of injury done shall exceed the sum of five pounds), shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of five(a) years or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping." (c)

Sec. 22. "Whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be growing, the injury done being to the amount of one shilling at the least, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, *there to be imprisoned only, or to be imprisoned and kept to hard labor for any term not exceeding three months, or else [*1066 shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding five pounds, as to the justice shall seem meet; and whosoever, having been convicted of any such offence, either against this or any former Act of Parliament, shall afterwards commit any of the said offences in this section before mentioned, and shall be convicted thereof in like manner, shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labor for such term, not exceeding twelve months, as the convicting

(m) Reg. v. Davy, 1 Cox C. C. 60, ante, p. 1049.

(n) Rex v. Woodward, R. & M. C. C. 323, ante, p. 1054.

(0) Ibid. ante, p. 1049.

(a) 27 & 28 Vict. c. 47.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 19, and is extended to Ireland. The Geo. 4, c. 56, s. 19 (1.), provided for similar offences. As to hard labor, &c., sce ante, p. 1022.

The 9 Geo. 4, c. 56, s. 19

(c) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 19. (I.), was similar as to the day time. As to hard labor, &c., see ante, p. 1022.