indictment must state that the entry and arming were by night. Where an indictment stated' that the defendants on, &c., did by night enter divers closes, and were then and there in the closes, armed, &c.; the judgment was reversed, on the ground that the indictment did not contain a sufficient averment that the defendants were, by night, in the closes, armed, &c. Davies v. The King, 10 B. and C. 89 (a); see also Kendrick's case, 7 C. and P. 184 (b); Wilks's case, Id. 811 (c).

Proof of the entering or being in the place specified.] The place must be described in the indictment, and the proof must agree with the allegation. Vide ante, p. 504. The defendants, to the number of three or more, must be proved to have been in the place named; if only one appear to have been there, all must be acquitted. Thus, where only one defendant was seen in the place charged in the indictment, the others being in a wood, separated therefrom by a high road; Patteson, J., held the indictment not proved. Dowsell's case, 6 C. and P. 398 (d).

But where the proof was, that three of the defendants were in a preserve, and that a fourth remained outside to watch, who on the approach [*506] *of the gamekeeper went into the preserve, and informed the rest, when they all ran away together; Alderson, B., held that he was equally guilty with those who entered the preserve at first. Passey's case, 7 C. and P. 282 (e). Lockett's case, Id. 300 (ƒ); see also Andrew's case, 2 Moo. and R. 37.

Where the evidence against the prisoner was, that he and his companions were in a lane, abutting on Wade's close, and that while they were. standing in the lane, they spread their nets upon some twigs of the hedge, which separated the lane from the close. On the question being raised, whether this was an entry upon the land; Alderson, B., held that if the jury were satisfied that, in effecting a common purpose, by all the defendants, the nets were hung upon the hedge, so as to be within the field; it was an entry by them all upon the close. Athea's case, 2 Lew. C. C. 191.

Proof of the purpose to take or destroy game or rabbits.] In general little difficulty exists with regard to the intent of the defendants. The circumstance of their being found armed is in itself a strong presumption of their object. As to the intent of killing game in the particular place charged in the indictment, see ante, p. 504.

Proof of the being armed with a gun, &c.] Though it must be proved that three persons at least were concerned in the commission of the offence, the statute does not require that it should appear that each was armed with a gun or other weapon, the words being "any of such persons being armed," &c., and this was held upon the former statute, 57 Geo. 3, c. 90, which did not contain the word "any." Smith's case, Russ. and Ry. 368 (g). It is not necessary that the gun should be found upon any of the defendants. The prisoners were shooting in a wood in the night, and the flash of their guns were seen by a keeper; but before they were seen they abandoned their guns, and were caught creeping away on their knees. Being convicted, the judges held this a being

(a) Eng. Com. L. Rep. xxi. 29.
(e) Id. xxxii. 511.

(b) Id. xxxii. 487. (c) Id. 748. (d) Id. xxv. 457. (ƒ) Id. 516. (g) 1 Eng. C. C. 368.

"found armed" within the 57 Geo. 3, c. 90. 386 (a).

Nash's case, Russ. and Ry.

Where several go out together, and one only is armed, without the knowledge of the others, the latter are not guilty within the statute. Southern's case, Russ. and Ry. 444 (b).

It must appear that the weapon was taken out with the intention of being unlawfully used. The defendant was indicted for being out at night for the purpose of taking game, armed with a bludgeon. It appeared that he had with him a thick stick, large enough to be called a bludgeon, but that he was in the constant habit of using it as a crutch, being lame. Taunton, J., ruled that it was a question for the jury, whether he took out the stick with the intention of using it as an offensive weapon, or merely for the purpose to which he usually applied it. The defendant was acquitted. Palmer's case, 1 Moody and Rob. 70. A walking-stick of ordinary size was ruled to be "an offensive weapon," within the 7 Geo. 2, c. 21. Johnson's case, Russ. and Ry. 492 (c).

The prisoners were indicted for entering land at night, *armed [ *507 ] with bludgeons, with intent to destroy game; there was also a count for a common assault. The only weapons proved to have been used by the prisoners were sticks. One of these was produced, with which one of the prisoners, on being attacked by the game-keeper had defended himself, and knocked the gamekeeper down. The stick, however, was a very small one, fairly answering the description of a common walking stick. On its being objected that the stick could not be considered an offensive weapon, within the statute, Johnson's case was cited for the prosecution, and it was contended that the use made of the stick by the prisoner, showed both his intention, and the nature of the stick. Gurney, B., said that if a man went out with a common walking stick, and there were circumstances to show that he intended to use it for purposes of offence, it might, perhaps, be called an offensive weapon within the statute, but if he had it in the ordinary way, and upon some unexpected attack or collision, was provoked to use it in his own defence, it would be carrying the statute somewhat too far to say it was an offensive weapon, within the meaning of the act. The prisoners were convicted of a common assault only. Fry's case, 2 Moody and Rob. 42.

Large stones are offensive weapons, if the jury are satisfied that the stones are of a description capable of inflicting serious injury, if used offensively, and that they were brought and used by the defendant for that purpose. Grice's case, 7 C. and P. 803 (d).

ASSAULT UPON PERSONS APPREHENDING OFFENDERS.

By 9 Geo. 4, c. 69, s. 2, "where any person shall be found upon any land, committing any such offence as is hereinbefore mentioned (see Ball's case, post,) it shall be lawful for the owner or occupier of such land, or for any person having a right of free warren or free chase thereon, or for the lord of the manor or reputed manor, wherein such land may be situate, and also for any gamekeeper or servant of any of the persons herein

(a) 1 Eng. C. C. 386. (b) 1 Ibid. 444. (c) 1 Ibid. 492. (d) Eng. Com. L. Rep. xxxii. 744.

before mentioned, or any person assisting such gamekeeper or servant, to seize and apprehend such offender upon such land, or in case of pursuit being made in any other place to which he may have escaped therefrom, and to deliver him as soon as may be, into the custody of a peace officer, in order to his being conveyed before two justices of the peace. And in case such offender shall assault or offer any violence with any gun, crossbow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person hereby authorized to seize and apprehend him, he shall, whether it be his first, second, or any other offence, be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for seven years, or to be imprisoned and kept to hard labor in the common gaol or house of correction, for any term not exceeding two years; and in Scotland, [*508] whenever any *person shall so offend, he shall be liable to be punished in like manner."

On an indictment under this statute, the prosecutor must prove; 1st, that the defendant was found upon some land committing one of the offences specified in the 9 Geo. 4, c. 69, s. 1, ante, p. 503; 2d, that he is himself either the owner or occupier of the land, or person having a right of free warren or free chase, or land of the manor, or gamekeeper, or servant of any of the above named persons, or a person assisting such gamekeeper or servant; 3d, the assaulting or offering violence, with a gun, &c. at the time of the attempted apprehension.

A gamekeeper, or other person lawfully authorized, may apprehend poachers without giving notice of his purpose. Payne's case, 1 Moo. C. C. 378 (a); post, title, Murder; Davis' case, 7 C. and P. 785 (b); and without any written authority for that purpose. Price's case, 7 C. and P. 178 (c). But they must be upon the land or manor of his master, for he cannot apprehend them upon the lands of others without authority. Davis' case, supra.

Although the foregoing section is confined to the offences specified in the first section, yet offenders, under the ninth section, may also be apprehended, for though a greater punishment is inflicted where several are out armed, they are still guilty of an offence under the first section. Ball's case, 1 Moo. C. C. 330 (d), see title Murder.

By the game amendment act, 1 and 2 Wm. 4, c. 32, s. 31, trespassers in search of game may be required to quit the land, and to tell their names and abodes, and in case of refusal may be apprehended and taken before a justice. See Long's case, 7 C. and P. 314 (e).

(a) 2 Eng. C. C. 378. (b) Eng. Com. L. Rep. xxxii. 736. (c) Id. 486. (d) 2 Eng. C. C. 330. (e) Eng. Com. L. Rep. xxxii. 522.

When an offence at common law.] Gaming, says Hawkins, is permitted in England, upon every possible subject, excepting where it is accompanied by circumstances repugnant to morality or public policy, or where, in certain special cases, it is restrained by positive *statutes. [*509] But where the playing is, from the magniHawk. P. C. b. 1, c. 92, s. 1. tude of the stake, excessive, and such as is now commonly understood by the term "gaming," it is considered by the law as an offence, being in its consequences most mischievous to society. 1 Russell, 406. The principal statutory provisions against gaming are those contained in the 9 Anne, c. 14, s. 5, and the 18 Geo. 3, c. 34, s.

8.

Statute 9 Anne, c. 14.] By the 9 Anne, c. 14, s. 5, "if any person or persons whatsoever, at any time or times after the said first day of May, 1711, do or shall, by any fraud or shift, cosenage, circumvention, deceit, or unlawful device, or ill practice whatsoever, in playing at or with cards, dice, or any the games aforesaid (i. e. cards, dice, tables, or other games whatever,) or in or by bearing a share or part in the stakes, wagers, or adventures, or in or by betting on the sides or hands of such as do or shall play as aforesaid, win, obtain, or acquire to him or themselves, or to any other or others, any sum or sums of money, or other valuable thing or things whatsoever, or shall at any one time or sitting, win of any one or more person or persons whatsoever, above the sum or value of 101.; that then every person or persons so winning by such ill practice as aforesaid, or winning at any one time or sitting above the said sum or value of 10l. and being convicted of any of the said offences upon an indictment or information to be exhibited against him or them for that purpose, shall forfeit five times the value of the sum or sums of money, or other thing so won as aforesaid; and in case of such ill practice as aforesaid, shall be deemed infamous, and suffer such corporal punishment, as in cases of wil ful perjury; and such penalty to be recovered by such person or persons as shall sue for the same, by such action as aforesaid."

Upon an indictment under this statute, the prosecutor must prove; 1st. the playing at or with cards, or dice, or at any of the games previously mentioned, or bearing a share or part in the stakes, &c., or the betting on the sides of the players; 2d. the winning, obtaining, or acquiring; 3d. of some sum of money or other valuable thing; and 4th. that this was done by fraud, shift, &c.

Proof of the game.] A horse race above 101. is within the statute. Goodburn v. Marley, 2 Str. 1159. Although for a legal plate. Blaxton v. Pye, 2 Wilt. 309. So a foot race. Lynall v. Longbothom, 2 Wils.

61

30. So also, as it seems, a wager on a game at cricket. Jeffreys v. Walter, 1 Wils. 220. Indeed, Abbott, C. J., was of opinion, that the statute applied to all games, whether of skill, or chance, and that it was the playing for money which made them unlawful. Sigel v. Jebb, 3 Stark. N. P. C. 1 (a).

Proof of the winning at one time or sitting.] The statute makes the winning of 10l. at one time or sitting, a nullity. To lose 10l. at one time, is to lose it by a single stake or bet; to lose it at one sitting, is to [ *510 ] lose it in a course of play where the company never *parts, though the person may not be actually gaming the whole time. The statute 18 Geo. 2, c. 34, (a law made in pari materia,) may serve to explain this. To lose 10l. at any one time, or 20l. within twenty-four hours, is equally penal by that statute. Per Blackstone, J., Bones v. Booth, 2 W. Bl. 1226. Where the playing continued from Monday evening to Tuesday evening, without any intermission, except an hour or two for dinner, this was held to be one sitting within the statute. Ibid. The defendant may be convicted of winning a less sum than that stated in the declaration. Darley's case, 1 Stark. N. P. C. 359 (b).

Statute 18 Geo. 2, c. 34.] By the 18 Geo. 2, c. 34, s. 8, "if any person, after the commencement of this act, shall win or lose at play, or by betting, at any one time, the sum or value of 10l., or within the space of twenty-four hours, the sum or value of 20l., such person shall be liable to be indicted for such offence, within six months after it is committed, either before his Majesty's justices of the King's Bench, assize, gaol delivery, or grand sessions, and being thereof convicted, shall be fined five times the value of the sum so won or lost; which fine, (after such charges as the Court shall judge reasonable allowed to the prosecutors, and evidence out of the same,) shall go to the poor of the parish or place where such offence shall be committed.

As to gaming house, see title, Nuisance.

(a) Eng. Com. L. Rep. xiv. 143. (b) Id. ii. 426.