1871 custody and possession of the child. But as the prisoner here was THE QUEEN the father of the child, entitled to its custody and legally bound to its protection, I do not differ from the rest of the Court. v. WHITE. BRAMWELL, B. I am of the same opinion. If the person who had had the actual custody of the child, and who left it at its father's door, had been a stranger with whom it had been left at nurse, there could, I think, have been no doubt about the case; and I do not think the fact that it was the mother makes any difference. upon BLACKBURN, J. I am of the same opinion. The question turns the meaning of the words "abandon or expose" in the statute. The Court before whom the prisoner was tried were right in directing the acquittal of the two other persons accused, because there was no legal duty upon them to protect the child, but only a duty of imperfect obligation. But the father's case is different; for upon him there is a strict legal duty to protect the child. And when the child is left in a position of danger of which he knows, and from which he has full power to remove it, and he neglects his duty of protection, and lets the child remain in danger, I think this is an exposure and abandonment by him. If the child had died, the facts were such that a jury might have convicted him of murder, though they might have taken a more merciful view, and found him guilty only of manslaughter; and as the child, though its life was endangered, did not die, the case is within the section. CHANNELL, B. My Brother Byles, who was a member of the Court when the case was first before the Court, concurs in the judgment; and, having had an opportunity of considering the case this morning, I am of the same opinion. Conviction affirmed. THE QUEEN v. LEWIS TOWNLEY. Larceny Animals feræ naturæ-Killing and Removal after an Interval of Poachers, of whom the prisoner was one, wrongfully killed a number of rabbits upon land belonging to the Crown. They placed the rabbits in a ditch upon the same land, some of the rabbits in bags, and some strapped together. They had no intention to abandon the wrongful possession of the rabbits which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them. About three hours afterwards the prisoner came back, and began to remove the rabbits: Held, that the taking of the rabbits and the removal of them were one continuous act, and that the removal was therefore not larceny. CASE stated by Blackburn, J. The prisoner and one George Dunkley were indicted at the Northampton Spring Assizes for stealing 126 dead rabbits. In one count they were laid as the property of William Hollis, in another as being the property of the Queen. There were also counts for receiving. It was proved that Selsey Forest is the property of Her Majesty. An agreement between Mr. Hollis and the Commissioners of the Woods and Forests on behalf of Her Majesty was given in evidence, which the learned judge thought amounted in legal effect merely to a licence to Mr. Hollis to kill and take away the game, and that the occupation of the soil, and all rights incident thereto, remained in the Queen. No point, however, was reserved as to the proof of the property as laid in the indictment. The evidence shewed that Mr. Hollis' keepers, about eight in the morning on the 23rd of September, discovered 126 dead and newly-killed rabbits and about 400 yards of net concealed in a ditch in the forest, behind a hedge close to a road passing through the forest. The rabbits were some in bags, and some in bundles strapped together by the legs, and had evidently been placed there as a place of deposit by those who had netted the rabbits. The keepers lay in wait, and at about a quarter to eleven on the same day Townley, and a man who escaped, came in a cab driven VOL. I. 2 Y 4 1870 April 27. 1871 by Dunkley along the road, Townley and the man who escaped THE QUEEN left the cab in charge of Dunkley, and came into the forest, and went straight to the ditch where the rabbits were concealed, and began to remove them. v. TOWNLEY. The prisoners were not defended by counsel. It was contended by the counsel for the prosecution that the rabbits on being killed and reduced into possession by a wrongdoer became the property of the owner of the soil, in this case the Queen: Blade v. Higgs (1); and that even if it was not larceny to kill and carry away the game at once, it was so here, because the killing and carrying away was not one continued act. Hale's Pleas of the Crown, vol. i., p. 510, and Lee v. Risdon (2), were cited. The jury, in answer to questions from the learned judge, found that the rabbits had been killed by poachers in Selsey Forest, on land in the same occupation and ownership as the spot where they were found hidden. That Townley removed them knowing that they had been so killed, but that it was not proved that Dunkley had any such knowledge. The learned judge thereupon directed a verdict of not guilty to be entered as regarded Dunkley, and a verdict of guilty as to Townley, subject to a case for the Court of Criminal Appeal. It was to be taken as a fact that the poachers had no intention to abandon the wrongful possession of the rabbits which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them. (3) The question for the Court was, whether on these facts the prisoner was properly convicted of larceny. April 22. No counsel appeared. BOVILL, C.J. The prisoner in this case has been convicted of felony in stealing rabbits, and the question is, whether he has been properly convicted. The facts are, that the rabbits, 126 in number, (1) 11 H. L. C. 621; 34 L. J. (C. P.) 286. (2) 7 Taunt. 189, at p. 191. (3) It was stated by Blackburn, J., though the fact did not appear upon the case, that the prisoner Townley was one of the poachers who killed the rabbits. 1871 v. TOWNLEY. were taken and killed upon land the property of the Crown. The rabbits were then, together with 400 yards of net, placed in a ditch THE QUEEN on the same land on which they had been taken; some of them being in bags, and some in bundles strapped together by the legs. They were placed there by the poachers, who in so placing them had no intention to abandon the wrongful possession which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them. Here they were found by the keepers at about eight in the morning. At about a quarter to eleven the prisoner arrived, went straight to the place where the rabbits were concealed, and began to remove them, Now, the first question is as to the nature of the property in these rabbits. In animals feræ naturæ there is no absolute property. There is only a special or qualified right of property—a right ratione soli to take and kill them. When killed upon the soil they become the absolute property of the owner of the soil. This was decided in the case of rabbits by the House of Lords in Blade v. Higgs (1). And the same principle was applied in the case of grouse in Lord Lonsdale v. Rigg (2). In this case therefore the rabbits, being started and killed on land belonging to the Crown, might, if there were no other circumstance in the case, become the property of the Crown. But before there can be a conviction for larceny for taking anything not capable in its original state of being the subject of larceny, as for instance, things fixed to the soil, it is necessary that the act of taking away should not be one continuous act with the act of severance or other act by which the thing becomes a chattel, and so is brought within the law of larceny. This doctrine has been applied to stripping lead from the roof of a church, and in other cases of things affixed to the soil. And the present case must be governed by the same principle. It is not stated in the case whether or not the prisoner was one of the poachers who killed the rabbits. But my Brother Blackburn says that such must be taken to be the fact. Under all the circumstances of the case I think a jury ought to have found that the whole transaction was a continuous one; and the conviction must be quashed. (1) 11 H. L. C. 621 ; 34 L. J. (C.P.) 286. (2) 1 H. & N. 923; 26 L. J. (Ex.) 196. 1871 MARTIN, B. I am of the same opinion. I think it is of the THE QUEEN utmost importance that the criminal law should rest upon plain and v. TOWNLEY. simple principles. Now if a man kills a rabbit and carries it away at once it is clearly not larceny. But it is said that if he leaves it for a little time before carrying it away, it is. And in support of this view a passage from Hale's Pleas of the Crown, p. 510, is relied on, where he says, "If a man come to steal trees, or the lead of a church or house, and sever it, and after about an hour's time or so come and fetch it away, this hath been held felony, because the act is not continuated but interpolated, and so it was agreed by the Court of King's Bench, 9 Car. 2, upon an indictment for stealing the lead of Westminster Abbey." A dictum of Gibbs, C.J. in Lee v. Risdon (1) to the same effect is also cited. Those statements may be perfectly correct, and ought perhaps to be followed in cases exactly similar in their facts, where there has been an actual abandonment of possession of the things taken. But here it is expressly found that there was no abandonment. And where the act is merely interrupted I think it more reasonable to hold that there is no larceny. BRAMWELL, B. I am of the same opinion. And I think our decision is consistent with the passage cited from Hale, and the dictum of Gibbs, C.J., referred to, which appear to me quite correct. If a man were unlawfully to dig his neighbour's potatoes, and from being disturbed in his work, or any other cause, were to abandon them at the place where he had dug them, and were afterwards with a fresh intention to come back and take them away, I think the case would be the same as if during this interval of time the potatoes had been locked in a cupboard by the true owner. Wherever, in such cases, the goods may be said to have been in the possession of the true owner in the interval between the severance and the removal, I think the removal is larceny. But is that so in this case? If the poachers had taken these rabbits to their own house, or to a public-house, can it be supposed that the subsequent removal of them from there would have been larceny? And if the case be varied by supposing them to have placed them upon land adjoining that on which they were killed, can that make any (1) 7 Taunt. 188, at p. 191. |