Sivut kuvina
PDF
ePub

*MALICIOUS INJURIES.

General clauses

615 Proof of destroying plants, &c., in Apprehension of offenders • 616 a garden

620 Accessaries · 616 Proof of cutting hop-binds

621 Punishment-hard labor - 616 | With regard to ships

621 With regard to mines

. 616 Proof of destroying ships with inEngines, erections, &c., used in

tent, &c.

622 mines

617 Proof of damaging ships, otherwise With regard to breaking down sea-banks,

than by fire, with intent, &c. locks, and works on rivers, canals, fish

Proof of exhibiting false lights, &c. ponds, &c.

617
with intent, &c.

622 With regard to turnpike gates and

Proof of destroying wrecks, or any houses, &c. 618 articles belonging thereto

622 With regard to trees and vegetable pro

Proof of cutting away buoys, &c. 622 ductions

619 Proof of removing anchors, &c. 623 Proof of cutting, &c., trees above With regard to machinery, and goods in the value of il. in parks, &c. 619 the course of manufacture

623 Proof of destroying trees, &c. where

Proof of destroying threshing masoever growing, above the value

chines, and machines used in manof 1s. 620 ufactures

624

.

[ocr errors]

The law relating to malicious injuries to property, was formerly comprised in a great variety of statutes, which are now repealed by the 7 & 8 Geo. 4, c. 27, and new provisions substituted in their place, by the 7 & 8 Geo. 4, c. 30. In the latter act, certain general clauses are contained, which being applicable to the greater part of the offences after-mentioned, may be most conveniently inserted in this place.

GENERAL CLAUSES.

Proof of malice against owner.] By the 7 & 8 Geo. 4, c. 30, s. 25, it is enacted, “ that every punishment and forfeiture by this act imposed [ *616 ] on any person maliciously committing any offence, *whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property, in respect of which it shall be committed, or otherwise."

Apprehension of offenders.] By s. 28, for the more effectual apprehension of all offenders against this act, it is enacted, “ that any person found committing any offence against this act, whether the same be punishable upon indictment or upon summary conviction, may be immediately apprehended, without a warrant, by any peace officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighboring justice of the peace, to be dealt with according to law.”

Accessaries.] By the 26th section, " in the case of every felony punishable under this act, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable ; and every accessary after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years; and every person who shall aid, abet, counsel or procure the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender.”

Punishment-hard labor.] By s. 27, “where any person shall be convicted of any indictable offence punishable under this act for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labor, as to the court in its discretion shall seem meet."

But now by the 7 Wm. 4 and 1 Vict. c. 90, s. 5, solitary confinement shall not exceed one month at a time, and not more than three months in any one year; see ante, p. 348.

[blocks in formation]

Proof of drowning a mine, or filling up a shaft with intent to destroy the mine.) The 39 & 40 Geo. 3, c. 77, relating to this subject; being repealed, the offence is now provided against by the 7 & 8 Geo. 4, c. 30, the sixth section of which enacts, “ that if any person shall unlawfully and maliciously, cause any water to be conveyed into any mine, or into any subterraneous passage communicating therewith, with intent thereby to destroy or damage such *mine, or to hinder or delay the [ *617 ] working thereof, or shall, with the like intent, unlawfully and maliciously pull down, fill up, or obstruct any airway, waterway, drain, pit, level, or shaft of or belonging to any mine, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonment: Provided always, that this provision shall not extend to any damage committed under ground by any owner of any adjoining mine in working the same, or by any person duly employed in such working.”

The prosecutor must prove: 1. the act of causing the water to be conveyed into the mine, &c. for which purpose it will probably be necessary to resort to circumstantial evidence; 2. that the act was done unlawfully and maliciously; 3. the intent to destroy or damage the mine, or hinder the working; and 4, that the mine is in the possession of the party named.

Where A. and B. were the owners of adjoining collieries, and A., asserting that a certain airway belonged to him, directed his workmen to stop it up, and they, acting bona fide, and believing that A. had a right to give such an order, did so; Lord Abinger, C. B., held, they were not guilty of felony under the above section. James's case, 8 C. and P. 131 (a). But if such workmen knew that the stopping up of the airway was a malicious act of their master, such workmen would be guilty of felony.

Ibid. The setting fire to mines is provided against by the 7 Wm. 4 and 1 Vict. c. 89, s. 9; see ante, p. 254.

Engines, &c. used in mines. By the 7 & 8 Geo. 4, c. 30, s. 7, “if any person shall unlawfully and maliciously pull down or destroy, or damage with intent to destroy or to 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 any. mine, or any bridge, wagon-way, or trunk, for conveying minerals, from any mine, whether such engine, staith, building, erection, bridge, wagon-way, or trunk, be completed or in an unfinished state, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to any of the punishments which the court may award, as hereinbefore last mentioned.” (Section 6, ante, p. 616.)

ON

WITH REGARD TO BREAKING DOWN, &c., SEA BANKS, LOCKS, WORKS

RIVERS, CANALS, AND FISH PONDS.

The foriner statutes relating to these offences were the 6 Geo. 2, c. 37; | *618 ] the 8 Geo. 2, c. 20; the 4 Geo. 4, c. 46; and the 1 Geo. 4, *c. 115; but these statutes are now repealed, and their provisions consolidated in the 7 & 8 Geo. 4, c. 30.

Proof of breaking down sea banks, banks of canals, marshes, &c.) By the 7 and 8 Geo. 4, c. 30, s. 12, "if any person shall unlawfully and maliciously break down or cut down any sea bank or sea wall

, or the bank or wall of any river, canal, or marsh, whereby any lands shall be overflowed or damaged, or shall be in danger of being so, or shall unlawfully and maliciously throw down, level, or otherwisc destroy any lock, sluice, floodgate, or other work on any navigable river or canal, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."

With regard to breaking down fish-ponds, &c.] Breaking down the mounds of fish-pounds was formerly punishable by the 5 Eliz. c. 21, and the 9 Geo. 1, c. 22. Those statutes are repealed by the 7 and 8 Geo. 4, c. 30, the 15th section of which statute enacts, “ that if any person shall unlawfully and maliciously break down or otherwise 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 in such pond or water, or so as thereby to cause

(a) Eng. Com. L. Rep. xxxiv. 326.

the loss or destruction of any of the fish, or shall unlawfully and maliciously put any lime or other noxious material in any such pond' or water, with intent thereby to destroy any of the fish therein, or shall unlawfully and maliciously break down or otherwise destroy the dam of any millpond, every such offender shall 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 the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonment.”

The above section provides against the defect in the former stat. 9 Geo. 1, c. 22, under which it was held, that if the prisoner broke down the mound of the pond with intent to steal the fish, it was not within the statute. Ross's case, Russ. and Ry. 10 (a).

WITH REGARD TO TURNPIKE GATES, TOLL-HOUSES, &c.

By the 7 & 8 Geo. 4, c. 30, s. 14, "if any person shall unlawfully and maliciously throw down, level, or otherwise destroy, in whole or in part, any turnpike-gate, or any wall, chain, rail, post, bar, or other fence belonging to any turnpike-gate, or set up or *erected to prevent [ *619 ] passengers passing by without paying any toll directed to be paid by any act or acts of parliament relating thereto, or any house, building, or weighing-engine erected for the better collection, ascertainment, or security of any such toll, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be punished accordingly."

WITH REGARD TO TREES AND VEGETABLE PRODUCTIONS.

Proof of cutting, &c. trees, &c. above the value of 1l. in parks, &c.] The provisions on this subject were formerly contained in the statutes 6 Geo. 3, c. 36, and 4 Geo. 4, c. 54; but these are now repealed by the 7 and 8 Geo. 4, c. 27, and the following provisions substituted by the 7 and 8 Geo. 4, c. 30.

By the 19th section of that statute, “if any person 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, respectively growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house, every such offender (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 transported beyond the seas for the terın of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonment, and if any person shall unlawfully and

(a) 1 Eng. C. C. 10.

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, respectively growing elsewhere than in any of the situations hereinbefore mentioned, every such offender (in case the amount of the injury done shall exceed the sum of five pounds) shall be guilty of felony, and, being convicted thereof, shall be liable to any of the punishments which the court may award for the felony hereinbefore last mentioned.”

The prosecutor must prove : 1. that the tree, sapling, &c., in question, was growing in some park, pleasure ground, &c.; 2. that its value exceeded ll.; 3. that it is the property of the prosecutor ; 4. that the defendant cut, rooted it up, or otherwise destroyed or damaged the whole or some part of it; 5. that the act of the defendant was wilful and malicious.

When the ground is described as adjoining to a dwelling-house, and it appears that the ground and dwelling-house are separated by a walk, it is a variance. Hodges' case, Moo. and Malk. N. P. C. 341 (a).

Upon the statute 9 Geo. 1, c. 22, s. 1, the words of which were “shall cut down or otherwise destroy," it was held that the cutting [ *620 ] *down of fruit trees, though such cutting down did not destroy the trees, was within the act. Taylor's case, Russ. and Ry. 373 (6).

Proof of destroying or damaging trees, &c. wheresoever growing, of any value above 18.] By the 7 and 8 Geo. 4, c. 30, s. 20, "if any person 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 inay be respectively growing, the injury done being to the amount of one shilling at the least, every such offender, being convicted before a justice of the peace, shall, for the first offence, 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 if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender 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 calendar months, as the convicting justice shall think fit; and if such second conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped, after the expiration of four days from the time of such conviction; and if any person so twice convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and, being convicted thereof, shall be liable to any of the punishments which the court may award for the felony hereinbefore last mentioned.”

The prosecutor must prove, 1, the two previous convictions by certified copies (see 7 & 8 Geo. 4, c. 30, s. 40) and they must be correctly set out, see ante, p. 381 ; 2, the commission of the third offence, by proving the cutting, &c. of the tree; that it is above the value of ls. ; that it is the property of the party mentioned ; and that the act was done wilfully and maliciously.

(a) Eng. Com. L. Rep. xxii. 330. (0) 1 Eng. C. C. 373.

« EdellinenJatka »