1868 v. SHEPHERD. who was a carpenter and accustomed to the work, to fell and bark these trees in the usual way. The prisoner engaged about five THE QUEEN men to assist him in the work. None of the trees included in the sale were the subject of the indictment, but eight other trees not marked for sale or sold. The evidence shewed that the felling and ripping of the trees bought by Mr. Heath took place during the ripping season of 1867, which extended over the month of May, and that during that time the eight trees in question were felled, stripped of bark, and had their tops cut off. There was evidence to connect the prisoner with the felling of these trees; but there was no evidence to shew the precise day or days on which these trees, or any of them, were felled, or on how many days the prisoner and his assistants were engaged in the work; but it was proved that the work was commenced and steadily prosecuted without intermission until the whole number of trees which the prisoner had been employed to throw were thrown; and it was then found that the eight trees in question had also been felled, and were lying on the ground. The bark and tops of these eight trees had been removed and sold by the prisoner; and he offered the trees themselves for sale as they lay on the ground after the bark and tops had been removed from them. The injury resulting from the cutting down of these trees did not amount, in the case of any one tree, to 51. The value of the eight trees, with their tops and bark, amounted altogether to 247. 15s. 9d. At the close of the case for the prosecution the prisoner's counsel objected that there was no evidence to go to the jury that the prisoner at any one time cut any trees, thereby doing injury to an amount exceeding 57. The Court overruled the objection, and left the case to the jury, directing them that, in order to convict the prisoner, they must be satisfied that he cut down at one time, or so continuously as to form one transaction, such a number of the trees as would make the injury done amount to a sum exceeding 51. The jury found the prisoner guilty; and he was sentenced to nine months' imprisonment with hard labour; but, at the request of the prisoner's counsel, the Court reserved the point; and the prisoner was discharged on bail, to surrender in execution when called upon by the clerk of the peace for the time being. The question for the Court is, whether there was any evidence 1868 V. to go to the jury to shew that injury, amounting in the aggregate THE QUEEN to a sum exceeding 57., was done by feloniously cutting trees so continuously as to constitute the offence charged in the second count of the indictment. If the Court should be of opinion that there was any such evidence, the conviction will be affirmed; if not, the conviction will be quashed. SHEPHERD. No counsel appeared for the prisoner. Mortimer, for the Crown. In order to ascertain the amount of the injury done within the meaning of the section (1), it is allowable to add together the value of different trees cut down at the same time. In R. v. Hodges (2), it appears to have been assumed that the value of two or more young pear trees might be added together in order to make up the necessary amount. In Reg. v. Whiteman (3), it would seem that, although consequential damage cannot be taken into account, the value of separate trees injured or cut down may be combined. COCKBURN, C.J. There is evidence of one continuous taking; and that was properly left to the jury, as well as the evidence of the value of the trees. The question for us is whether, by s. 32, the value of two trees may be put together for the purpose of making up the necessary amount of damage. I cannot but regret that, in consolidating the statute, a clause so inartistically drawn should have been allowed to stand without putting it into clearer language. On the whole, I think the value of the trees may be combined. The section says "the whole or any part of any tree;" this looks like the part of any one tree. Then, does the latter part of the section, where the words "article or articles" are used, warrant us in reading the word "tree" in the plural, or should it be understood to mean any one tree of the value of 57.? I think the amount of injury must be taken to refer to the word (1) The 24 & 25 Vict. c. 96, s. 32, enacts that whosoever shall steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood respectively growing elsewhere than in any of the situations in this section before mentioned, shall (in case the (2) M. & M. 341. 1868 บ. SHEPHERD. "articles," and must be read "injury done to an article or articles exceeding the sum of 51." If the word "underwood" were omitted, THE QUEEN the word "articles" would fairly bear the construction I have indicated; but the difficulty is that the latter expression may apply to underwood only. It is impossible, however, to suppose that the legislature intended to protect underwood and not, so far as the corresponding value is concerned, growing timber; and this enables us to get over the difficulty by saying that injury done to 100 underwood at 1s. each, and injury done to five trees at 17. each, are equally included, and that the amount of damage, if exceeding 57. in respect of two or more trees, is sufficient to support the indictment. KEATING, J., PIGOTT, B., and SHEE and MONTAGUE SMITH, JJ., concurred. Conviction affirmed. Attorneys for the Crown: Barlow & Bowling, for Stamp & Son, Honiton. END OF HILARY TERM, 1868. VOL. I. U 4 1868 April 25. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN EASTER TERM, XXXI VICTORIA. THE QUEEN v. WESTERN. Indictment Amendment-14 & 15 Vict. c. 100, s. 1-Information-Game— · 9 Geo. 4, c. 69, s. 1. The judge has power, under the 14 & 15 Vict. c. 100, s. 1, to amend an indictment for perjury, describing the justices before whom the perjury was committed as justices for a county, where they are proved to be justices for a borough only. An information, under the 9 Geo. 4, c. 69, s. 1, for entering land for the purpose of taking game, is sufficient to give the justices before whom it is laid jurisdiction to hear the charge, although it does not allege that the entry was for the purpose of taking game there. THE following case was stated by Blackburn, J.: The prisoner was tried before me, at the last assizes for Devonshire, for perjury. The indictment alleged that, "at a petty session of the peace holden in the parish of Tiverton, in the county of Devon, a certain charge and complaint came on to be heard in due form of law before John Lane, Esq., and Samuel Garth, Esq., then respectively being justices of the peace of our Lady the Queen assigned to keep the peace in and for the said county, and acting in and for the borough of Tiverton in the said county, against Thomas Martin, for that he, to wit, on the night of the 31st of January, 1863, at Chettercombe Barton, in the parish of Tiverton, in the borough of Tiverton, unlawfully did enter and be on certain land there, called Quarry Down Close, with a certain gun 1868 and other instruments for the purpose of taking and destroying game contrary to the statute in such case made and provided," THE QUEEN and then alleged that the prisoner committed perjury on the hearing of that complaint. On the evidence it appeared that an information or complaint in writing against Martin and the now prisoner Western was laid before a justice of the borough of Tiverton in 1863. Western was then convicted; but, Martin having absconded, a warrant was issued against him, and he was not taken till 1868, when the complaint against him was heard before the two gentlemen named in the indictment, who were justices for the borough of Tiverton only, and were not justices for the county. On the hearing of this complaint Western was called as a witness, and swore that Martin was not the person who was with him poaching on that night; and on this the perjury was assigned. It was objected that, though the two justices for the borough had jurisdiction to hear the complaint, yet, not being justices in and for the county, the allegation in the indictment was not proved. To this it was answered that the fact that they were justices for the borough, which was within the county, was proof of the averment, or that the words "in and for the county" might be rejected as surplusage. I was, however, of opinion that the averment being descriptive required to be proved as laid. It was then urged that I had power to amend the indictment so as to cure the variance, either under the 9 Geo. 4, c. 15, or under the 14 & 15 Vict. c. 100, s. 1. I thought that the 9 Geo. 4, c. 15, did not apply to this case, and doubted whether the variance came within the meaning of the 14 & 15 Vict. c. 100, s. 1, as, though it was a variance in the description of persons in the indictment named and described, it seemed to me doubtful whether those words in the act were not confined to variances ejusdem generis with a variance in the name of such persons. thought, however, that, if I had power to make the amendment, it was proper to exercise it, and therefore directed the indictment to be amended by striking out the words "the said county," so as to make the averment be that they were justices "assigned to keep the peace in and for, and acting in and for, the borough of Tiverton, in the said county," subject to the opinion of the Court of Criminal Appeal as to my power to make such an amendment. I บ. WESTERN. |