the signal man at the Luton Station, on the Midland Railway, 1871 v. HARDY. to stop the goods train then coming towards it, on its way to THE QUEEN Leagrave, two and a half miles nearer to Bedford, to which latter place he was anxious to proceed in order to catch a passenger train. The signal man refused to do so, and referred him to the station-master, who also gave a like refusal. The defendant then proceeded along the line towards Leagrave 700 or 800 yards and on the goods train approaching him, having passed the Luton Station, he placed himself on the space between the two lines of railway, and held up his arms in the mode used by inspectors of the line when desirous of stopping a train between two stations. The defendant knew that his doing so would probably induce the driver to stop or slacken speed, and his intention was to produce that effect. The driver, supposing him to be an inspector, shut off steam, diminishing the speed gradually from twenty to four miles an hour, and the defendant, when the train came up at that speed, jumped into the guard's van, and the train, without actually stopping, proceeded onward towards Leagrave at its usual pace. The delay caused by shutting off the steam and diminishing the speed was about four minutes, and the station-master stated that if the goods train had not on that occasion been before its usual time, the delay of four minutes would have obliged him to stop the next passenger train if punctual to its time. No actual delay in that respect, however, took place. The defendant was a season ticket holder, but had no right as such to travel in a goods train. The jury found the prisoner guilty. The question was whether the facts as stated amounted to an obstruction within the meaning of s. 36 of 24 & 25 Vict. c. 97. (1) (1) S. 35 of 24 & 25 Vict. c. 97, enacts that "whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously S. 36: "Whosoever by any unlaw The case was argued before Bovill, C.J., Willes and Hannen, JJ., Channell and Pigott, BB. No counsel appeared for the prisoner. C. G. Merewether, for the prosecution. This Court has decided in Reg. v. Hadfield (1), that an obstruction under s. 36 of 24 & 25 Vict. c. 97, need not be an actual physical obstruction; and therefore in that case it was held that the prisoner who had stopped a train by altering the signals at a station from "all clear" to "danger," and "caution," was rightly convicted of an obstruction under this. section. This section, which makes it a misdemeanour to obstruct a train, uses only the general words "by any unlawful act." But s. 35, which makes a similar obstruction felony, if done maliciously, mentions a number of specific acts. And these are all included under the words "unlawful act" in s. 36; Reg. v. Hadfield. (1) Then s. 35 uses the words expressly, "make or shew, hide or remove any signal or light." The only distinction between this case and Reg. v. Hadfield (1) is that there the prisoner altered a fixed signal, here he made a signal with his arms. But this is making a signal within the meaning of the Act. It is a signal according to the popular use of language. And the case shews that it is the mode of signalling in ordinary use between two stations, as the fixed signal is used at stations. BOVILL, C.J. There can be no doubt in this case that the prisoner did in fact make a signal, namely, by holding up his arms in the mode used by inspectors of the line when desirous of stopping a train between two stations; or that he did thus obstruct the train, for the driver shut off steam and diminished the speed of the train from twenty to four miles an hour; or that the prisoner did what he did with the intention of producing this result. We have to consider whether this is such an obstruction as is contemplated by s. 36 of 24 & 25 Vict. c. 97. The first question is whether the section applies to anything except a mere physical obstruction. If it had spoken of obstructing 1871 v. HARDY. the line of railway, it might have been limited to physical obstructions. But the words are "obstruct any engine or carriage." THE QUEEN And further the section speaks not only of obstruction "by any unlawful act," but also of obstruction "by any wilful omission or default." These latter words are probably directed to the case of a servant of the company delaying a train by wilfully omitting some act which it is his duty to do; and they must include something beyond mere physical obstruction. But all doubt is removed when we refer to s. 35. That section makes it felony to do certain acts maliciously and with intent to obstruct. It enumerates first a number of acts which would no doubt amount to a physical obstruction of the line itself, such as placing wood or stones across the railway, displacing the rails, or altering the points. Then follow the words "shall unlawfully and maliciously make or shew, hide or remove any signal or light upon or near to any railway;" and then the general words "shall unlawfully and maliciously do or cause to be done any other matter or thing with intent, &c." Now it is quite clear that the making or altering of a signal need not necessarily create any physical obstruction; and it is therefore clear that the word obstruct in s. 35 is not limited to physical obstruction. I should have said the same of s. 36, even if it had stood alone. But plainly the same word must have the same meaning in both sections; and therefore s. 36 applies to other than physical obstructions. Secondly, I think that each of the things specifically mentioned in s. 35 is included under the general words "any unlawful act" in s. 36. And as the prisoner's act is within the terms of s. 35, he was properly convicted. The case of Reg. v. Hadfield (1) proceeded upon the same principle. It is true that in that case an actual fixed signal was altered; but the Act says expressly “shall make any signal," and the cases are therefore not distinguishable. WILLES and HANNEN, JJ., CHANNELL and PIGOTT, BB., concurred. Conviction affirmed. Attorneys for prosecution: Beale, Marigold, & Beale. (1) Ante, p. 253. 1871 Jan. 21. THE QUEEN v. SAMUEL HARRIS AND HENRY COCKS. Nuisance-Indecently exposing the Person-Public place-Urinal. The prisoners were convicted of indecently exposing their persons in a urinal, open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath : Held, that the jury might well find the urinal to be a public place, and that, therefore, the conviction was good. Reg. v. Orchard (3 Cox Crim. C. 248), observed upon. CASE stated by the Assistant Judge of the Middlesex Sessions. Indictment for a nuisance by indecently exposing the person and committing acts of lewdness in an open and public place. The prisoners were tried on the 23rd of November, 1870. It was proved that, complaints having been made to the police of practices at a urinal, two police constables in plain clothes were directed to watch the place, and on the 10th of October they found the two prisoners in the urinal. They were standing facing each other; but on seeing the officers, each retired into a compartment in the urinal. The police officers went to the further end of the urinal where there were openings enabling them to see into the urinal; they then saw Harris leave the compartment which he had previously entered and go to the compartment in which Cocks was. Cocks turned round, and the prisoners exposed their persons and committed acts of lewdness. The urinal is open to the public, and is situate in Hyde Park near to a lodge the window of which on a first floor commands a view of the urinal, the distance between the lodge and the urinal being 14 feet 6 inches. The urinal is approached by a gate opening from the publicfootpath, and there is also access to it by another gate communicating with a small garden belonging to the lodge. The jury found the prisoners guilty. The question was whether, in point of law, the conviction could be sustained. The case was argued before Bovill, C.J., Willes and Hannen, JJ., Channell and Pigott, BB. 1871 v. HARRIS. H. Giffard, Q.C. (Ribton with him), for the prisoners. The conviction cannot be sustained. To make the acts of the prisoners THE QUEEN a criminal offence, they must have been done in an open and public place. It is not every place to which the public have the right of access that is an open and public place in this sense, but the place must be open to public view; otherwise bathing on the most unfrequented spot of the sea-shore would be an offence. And Reg. v. Orchard (1) expressly decides that inasmuch as the very purposes for which a urinal is set apart necessarily involve some exposure of the person, it cannot be a public place in such a sense as to make an indecent exposure of the person there a nuisance. On the authority, therefore, of that case, there was no evidence in the present case to go to the jury. In Sir Charles Sedley's Case (2), the defendant exposed his person so as to be visible from a public market, and all the other cases in which a conviction has been upheld are upon the same principle. Harris, for the prosecution, was not called upon. BOVILL, C.J. If all the facts in Reg. v. Orchard (1) had been set out, and the view of the learned judge clearly stated in the report of the case, it might have been some authority for our guidance. But, upon any view of it, I do not think that it applies to the present case. The indictment is for exposing the person and committing acts of lewdness in an open and public place. If the judge was bound to tell the jury that a urinal could not be such a place, of course the conviction was wrong and must be set aside, but not otherwise. Now, it appears that the urinal was open to the public; that it was in Hyde Park, upon a public footpath; and that the entrance to it was from that footpath. I think it was just as much a public place, with respect to that portion of the public who use it, as a public highway. Every place must be more or less screened from view on some side, and the size of an inclosure does not necessarily affect the question whether it is a public place or not. We are only bound to decide whether this could be a public place. But I think it clearly was so; and just the sort of public place to which the law ought to be applied. |