42 maining waste, &c. to secure such goods from rapine, is felony without benefit of clergy. By statute 22 & 23 Car. II., c. 7, maliciously, unlawfully, Destroying &c., in night, and willingly, in the nighttime, to burn, or cause to be burned corn, barns, or destroyed, any ricks or stacks of corn, hay, or grain, barns, &c. houses, buildings, or kilns ;" or to kill any horses, sheep, or Killing or other cattle, is felony, but the offender may make his election cattle. to be transported for seven years; and to maim or hurt such horses, sheep, or other cattle, is a trespass for which treble damages shall be recovered." By statute 4 & 5 W. & M., c. Burning 23, to burn on any waste, between Candlemas and Midsummer, any grig, ling, heath, furze, goss, or fern, is punishable with whipping and confinement in the house of correction. By stat- Destroying ute 1 Ann., st. 2, c. 9, captains and mariners belonging to ships, and destroying the same, to the prejudice of the owners (and by 4 Geo. I., c. 12, to the prejudice of insurers also), are guilty of felony without benefit of clergy. And by statute 12 Ann., st. 2, c. 18, making any hole in a ship in distress, or stealing her pumps, or aiding or abetting such offense, or willfully doing any thing tending to the immediate loss of such ship, is felony without benefit of clergy." By statute 1 Geo. I., c. 48, mali- Destroying (42) See infra, n. (47). (43) See infra, n. (49). (44) And now, by the 1 Vict., c. 89, 8. 4, the maliciously setting fire to, casting away, or in anywise destroying any ship or vessel, either with intent to murder any person, or whereby the life of any person shall be endangered, is a capital felony. The 5th section also makes it a capital felony to exhibit any false light or signal, with intent to bring any ship or vessel into danger, or maliciously to do any thing tending to the immediate loss or destruction of any ship or vessel in distress. The 6th section subjects to transportation for life or not less than fifteen years, or imprisonment not exceeding three years, any person who shall maliciously set fire to, or in anywise destroy, any ship or vessel, whether it be complete or in an unfinished state; or set fire to, cast away, or in anywise destroy, any ship or vessel, with intent thereby to prejudice any owner or part owner of the ship, or any goods on board, or any person that shall have underwritten any policy of insurance on the ship, freight, or goods. Section 8 makes it a felony, punishable by transportation for any term not exceeding fifteen nor less than ten years, or imprisonment not exceeding three years, maliciously to destroy any part of any ship or vessel which shall be in distress, wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind belonging to the ship. And the A pleasure-boat, eighteen feet long, ship or vessel," in the 1 Vict., c. 89, s. 6, and 7 & 8 Geo. IV., c. 30, s. 10. 4 C. & P., 559. The burning of a ship, of which the defendant was a part owner, is within these sections. 1 C. & Mar., 200. As to the evidence of ownership, see ibid.; 1 Mood., C. C., 263. Upon an indictment for setting fire to a ship with intent to prejudice the underwriters, the policy of insurance would not be evidence unless duly stamped. Russ. & Ry., C. C., 138. By the 1 & 2 Geo. IV., c. 75, s. 11, the willfully cutting away, casting adrift, removing, altering, defacing, sinking, or destroying, or doing any act with intent or design to cut away, &c., any buoy, buoy-rope, or mark belonging to any ship or vessel, or which may be attached to any anchor or cable belonging thereto, is felony, punishable with transportation for any term not exceeding seven years, or imprisonment for any number of years, at the discretion of the court ships, &c. under-wood [246] Injuring clothes, &c. ciously to set on fire any under-wood, wood, or coppice, is made single felony." By statute 6 Geo. I., c. 23, the willful and malicious tearing, cutting, spoiling, burning, or defacing of the garments or clothes of any person passing in the streets or highways, with intent so to do, is felony. This was occasioned by the insolence of certain weavers and others, who, upon the introduction of some Indian fashions prejudicial to their own manu factures, made it their practice to deface them, either by open outrage, or by privily cutting, or casting aqua fortis in the streets upon such as wore them." By statute 9 Geo. I., c. 22, comBlack Act. monly called the Waltham Black Act, occasioned by the devastations committed near Waltham, in Hampshire, by persons in disguise or with their faces blacked (who seem to have resembled the Roberdsmen, or followers of Robert Hood, that in the reign of Richard the First committed great outrages on the borders of England and Scotland'); by this Black Act, I say, which has in part been mentioned under the several heads of riots, menaces, mayhem, and larceny,m it is further enacted, that to set fire to any house, barn, or out-house (which is exhouses, &c., tended by statute 9 Geo. III., c. 29, to the malicious and willful burning or setting fire to all kinds of mills), or to any hovel, cock, mow, or stack of corn, straw, hay, or wood;" or unlawfully and maliciously to break down the head of any fish-pond, whereby the fish shall be lost or destroyed;" or, in like manner, Burning houses, out or corn. Breaking fish ponds. down, &c., 13 Inst., 197. (45) Infra, n. (47). (46) See ante, p. 208, n. (2). (47) The punishment for willful burning is now varied, according to the nature of the property injured, and the probability of human life being endangered. By the 1 Vict., c. 89, s. 2, the malicious firing of a dwelling-house, any person being therein, is a capital felony. By the 3d section of the same act, the maliciously setting fire to any church or chapel, or to any chapel for the religious worship of dissenters, or any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hopoast, barn, or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether in the possession of the offender or of any other person, is felony, punishable with transportation for life or not less than fifteen years, or imprisonment not exceeding three years. As to the ingredients necessary to constitute the offense of arson, see ante, p. 221, et m See pages 144, 208, 235, 240. And by the 10th section of the same statute, the maliciously setting fire to any stack of corn, grain, pulse, tares, straw, haulm, stubble, furze, heath, fern, hay, turf, peat, coals, charcoal, or wood, or any steer of wood, is felony, punish able with transportation for life, or not less than fifteen years, or imprisonment not exceeding three years. And by 7 & 8 Geo. IV., c. 30, s. 17, the malicious ly setting fire to any crop of corn, grain, or pulse, whether standing or cut down, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorze, furze, or fern, wheresoever growing, is felony, subject to transportation for seven years, or imprisonment (with whipping, if a male) not exceeding two years. As to these offenses, see 1 Mood., C. C., 323, 461; 6 C. & P., 348; 7 C. & P., 237. (48) The 7 & 8 Geo. IV., c. 30, s. 15, has now enacted, that if any person shall maliciously break down or destroy the dam of any fish-pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish, or so as thereb to cause the loss or destruction of any &c., cattle. Cutting lands overflowed. to kill, maim, or wound any cattle;" or cut down or destroy Injuring, any trees planted in an avenue, or growing in a garden, orchard, Injuring, or plantation, for ornament, shelter, or profit; all these mali- &c., trees. cious acts, or procuring, by gift or promise of reward, any person to join them therein, are felonies without benefit of clergy, and the hundred shall be chargeable for the damages, unless the offender be convicted." In like manner, by the Roman law, to cut down trees, and especially vines, was punished in the same degree as robbery. By statute 6 Geo. II., c. 37, and 10 Geo. II., Cuti Banks, c. 32, it is also made felony, without the benefit of clergy, mali- whereby ciously to cut down any river or sea bank, whereby lands may be overflowed or damaged; or to cut any hop-binds growing in a plantation of hops, or willfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or delf of coal. By statute binds. 11 Geo. II., c. 22, to use any violence in order to deter any per- Firing coalson from buying corn or grain; to seize any carriage or horse mines, &c carrying grain or meal to or from any market or sea-port; or to sale of grain, use any outrage with such intent; or to scatter, take away, &c. spoil, or damage such grain or meal, is punished for the first offense with imprisonment and public whipping; and the second offense, or destroying any granary where corn is kept for exportation, or taking away or spoiling any grain or meal in such granary, or in any ship, boat, or vessel intended for ex ■ Ff., 47, 7, 2. the fish, or shall maliciously break down or destroy the dam of any mill-pond, he shall be guilty of felony, and liable to transportation for seven years, or imprisonment (with whipping, if a male) for two years. (49) But now, by the 7 & 8 Geo. IV., c. 30, s. 16, and 1 Vict., c. 90, s. 2, the malicious killing, maiming, or wounding of any cattle is felony, punishable by transportation for any term not exceed ing fifteen nor less than ten years, or imprisonment not exceeding three years. The word "cattle," it will be observed, is alone mentioned in this act; it has been held, on former acts, to include horses, as well as oxen, &c., pigs, and asses. 2 W. Bl., 721; Russ. & Ry., C. C., 77; 1 Mood., C. C., 3. It is no longer necessary, as it was formerly, to prove that the act is done from malice to the owner. Sect. 25, ante, p. 244, n. (40). If a wounding be alleged, it is not necessary to prove a permanent injury 2 East, P. C., 1076; Russ. & Ry., C. C., 16. Where the defendant poured nitrous acid into the ear of a horse, which ran into its eye, and blinded it, and the injuries produced to the ear were ulcers, not wounds, the defendant was held to be rightly convicted for maiming. 1 52 Mood., C. C., 205. The biting of a sheep (50) See infra, n. (55). (51) As to the remedies against the hundred, see now the 7 & 8 Geo. IV., c. 31, ante, vol. iii., p. 160. (52) As to the cutting down of river or sea banks, see ante, p. 144, 5, n. (5), (6), (7). With respect to the other offenses mentioned in this paragraph, the 7 & 8 Geo. IV., c. 30, s 18, and 1 Vict., c. 90, s. 2, make the malicious cutting or destroying of hop-binds, growing on poies in any plantation of hops, a felony, subject to transportation for any term not exceeding fifteen nor less than ten years, or imprisonment not exceeding three years; and by the 1 Vict., c. 89, s. 9, the maliciously setting fire to a mine of coal or cannel coal is felony, punishable with transportation for life or not less than fifteen years, or imprisonment not exceeding three years. [247] Cutting bop Stopping Barning trees, &c. portation, is felony, subject to transportation for seven_years." fin By statute 28 Geo. II., c. 19, to set fire to any goss, furze, or forests. fern, growing in any forest or chase, is subject to a fine of five Destroying pounds." By statutes 6 Geo. III., c. 36 and 48, and 13 Geo. III., c. 33, willfully to spoil or destroy any timber or other trees, roots, shrubs, or plants, is for the first two offenses liable to pecuniary penalties; and for the third, if in the daytime, and even for the first if at night, the offender shall be guilty of felony, and liable to transportation for seven years." By statute Destroying 9 Geo. III., c. 29, willfully and maliciously to burn or destroy any engine or other machines therein specified, belonging to mine engines &c. (53) See, also, the 36 Geo. III., c. 9; and the 9 Geo. IV., c. 31, s. 26, ante. p. 217, n. (12). (54) Supra, n. (47). (55) By the 7 & 8 Geo. IV., c. 30, s. 19, maliciously to cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any under-wood, respective ly growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house (see ante, p. 234, n. (8), where the amount of injury done exceeds £1, is felony, punishable with transportation for seven years, or imprisonment (with whipping, if a male) not exceeding two years. The commission of similar acts with respect to trees, &c., growing elsewhere, is subject to the like punishment, in case the amount of injury done exceeds £5. And by s. 20, the commission of similar acts with respect to trees, &c., wheresoever growing, the injury done being to the amount of 18. at the least, subjects the party, for the first offense, to a pecuniary penalty not exceeding £5, on summary conviction before a justice of the peace; for the second offense, to imprisonment with hard labor not exceeding twelve months; and upon any further repetition of the offense, the party is guilty of felony, and punishable as mentioned in s. 19. By sect. 21 of the same act, maliciously to destroy, or damage with intent to destroy, any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery ground, hot-house, greenhouse, or conservatory, is punishable, on summary conviction, with imprisonment and hard labor for any term not exceed ing six months, or a penalty not exceed ing £20, over and above the amount of injury done; a subsequent commission of the offense makes the party guilty of felony, and punishable as mentioned in s. 19. And by s. 22, maliciously to de stroy, or damage with intent to destroy any cultivated root or plant used for the food of man, or for medicine, or for dyeing, distilling, or in the course of any manufacture, growing in any land not being a garden, orchard, or nursery ground, is punishable, on summary conviction, with imprisonment and hard labor for any term not exceeding one month, or a penalty not exceeding 208. over and above the amount of injury done; and, on a repetition of the offense, with imprisonment and hard labor (with whipping, if a male) not exceeding six months. By s. 23, maliciously to cut, break, throw down, or destroy any fence of any description, wall, stile, or gate, or any part thereof, subjects the offender, on summary conviction, to a penalty, for the first offense, not exceeding £5 over and above the amount of injury done; and for any subsequent offense to imprisonment with hard labor (with whipping, if a male) not exceeding twelve calendar months. See ante, p. 234, n. (8). And generally, by section 24, the malicious commission of any damage, injury, or spoil, to or upon any real or personal property, either of a public or private nature, for which no remedy or punishment is provided by the act, is punishable, on summary conviction, by such penalty, not exceeding £5, as shall be a reasonable compensation for the damage; to be paid, in case of private prop erty, to the party aggrieved (except where he has been examined in proof of the offense); and on non-payment of the penalty, the offender may be com mitted to hard labor for any term not exceeding two calendar months, or until payment. But this enactment is not to extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass, not being willful and malicious, committed in hunting, fishing, or the pursuit of game. 56 into house any mine; or any fences for inclosures pursuant to any act of Parliament, is made single felony, and punishable with transportation for seven years, in the offender, his advisers, and procurers." And by statute 13 Geo. III., c. 38, Breaking the like punishment is inflicted on such as break into any to steal, &c., house, &c., belonging to the Plate-glass Company, with in- plate-glass. tent to steal, cut, or destroy any of their stock or utensils, or shall willfully and maliciously cut or destroy the same." (56) And now, by 7 & 8 Geo. IV., c. 30, s. 6, maliciously to cause any water to be conveyed into any mine, or into any subterraneous passage communicating therewith, with intent thereby to destroy or damage the mine, or to hinder or delay the working thereof; or, with the like intent, maliciously to pull down, fill up, or obstruct any air-way, water-way, drain, pit, level, or shaft belonging to any mine, is felony, punishable by transportation for seven years, or imprisonment (with whipping, if a male) not exceeding two years; but this provision is not to extend to any damage committed under ground by the owner of any adjoining mine in working it, or any person duly employed in such working. And by section 7, the same punishments are awarded to the malicious pulling down or destroying, or damaging with intent to destroy or render useless, any steam-engine, or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of the mine, or any bridge, wagon-way, or trunk for conveying minerals from the mine, whether they be completed or in an unfinished state. The obstructing of an air-way by the workmen in a mine, by order of their master, is not felony in them, though they know he has no right to the airway; but if they know that the obstruction is a malicious act of the master, it is felony in them. 8 C. & P., 131. A scaffold, erected at some distance from the bottom of a mine, in order to work a vein of coal on that level, was held to be an erection used in conducting the business of the mine, within s. 7. 9 C. & P., 234. Where the mine was worked by a steam-engine, which caused a cylinder called a drum to revolve and take up the rope as the coal was drawn up from the mine, proof of damage done to this drum was held not to sustain an indictment which charged a damaging of the engine. Ibid. (57) By 7 & 8 Geo. IV., c. 30, s. 3, maliciously to cut, break, or destroy, or damage with intent to destroy or render useless, any goods or article of silk, woolen, linen, or cotton, or of any one or more of those materials mixed with each other, or with any other material, or any frame-work, knitted piece, stocking, hose, or lace being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process, or progress of manufacture; or to cut, &c., any warp or shute of the same materials, or any loom, frame, machine, engine, rack, tackle, or implement, fixed or movable, prepared for or employed in carding, spinning, throwing, weaving, fulling, shearing, or otherwise manufacturing or preparing any such goods or articles; or to enter by force into any house, shop, building, or place, with intent to commit any of such offenses, is felony, subject to transportation for life or not less than seven years, or impris onment (with whipping, if a male) not exceeding four years. The willful removal of any part of a machine, whereby it is rendered imperfect or inoperative, is a damaging of it within the statute, though the part taken away be not injured, and might be replaced. Russ. & Ry., C. C., 452. And by the 4th section of the same statute, maliciously to cut, break, or destroy, or damage with intent to destroy or render useless, any thrashing - machine, or any machine or engine, fixed or movable, prepared for or employed in any manufacture whatsoever (except those mentioned in s. 3), is also felony, subject to transportation for seven years, or imprisonment (with whipping, if a male) not exceeding two years. The destruction of any part of a machine which has been taken to pieces and separated by the owner is within the stat ute, 4 C. & P., 448; but not the destruction of a part of a machine the remainder of which the owner has destroyed. 2 Deacon's Crim. L., 1518. But though the side-boards of a thrashing-machine be wanting, without which it will act, though not perfectly, it is a machine within the act. Id., 1517. And the destruction of a water-wheel, whereby a thrashing-machine is worked, is with in the statute. 4 C. & P., 449. |