KERKIN
AND

OTHERS

V.

JENKINS.

1863.

Unlawful purpose

5 Geo. 4, c. 83, 8. 4.

It was proved that on the day in question the household of the respondent (who is vicar of the parish) consisted of himself, his daughter, and three female servants. At ten p.m. the family retired to their respective rooms; but the respondent and his daughter, suspecting that all was not right, went down stairs to keep watch. The appellants and the respondent's servants and his schoolmistress were in the servants' bedroom, the door of which was fastened. The respondent demanded admission, which was refused. Two of the appellants then escaped by the window, and the third was afterwards turned out of the house. On entering the room the respondent found on the table the fragments of an entertainment consisting of provisions, a portion of which was proved to be his property; and it was also proved that the appellants were in the respondent's house without his knowledge or consent. It was also proved that one of the appellants had been paying his addresses to one of the servants of the respondent, but it was not shown that he had ever been there at night.

We convicted the appellants on the ground that they were, under the circumstances proved to us, in the house of the respondent for an unlawful purpose within the meaning of the Act..

The question of law arising on the above statement for the opinion of the Court is, was the purpose for which we found the appellants to have been in the respondent's house, namely, the purpose of joining in the taking and consuming of the provisions which were respondent's property, without his knowledge or consent, an unlawful purpose within the meaning of the Act?

Karslake, Q.C. for the respondent.-The appellants were proved to have been in the respondent's house for a felonious purpose. [CROMPTON, J.-The purpose is very material here. Did they not go to the house for another purpose than that laid in the information? They went for the purpose of consuming the respondent's property. The case may be assimilated to that of Reg. v. White (9 C. & P. 344), where it was held, that if a servant take his master's property and hand it over as a gift, it amounts to a felony. Had the parties been indicted, the judge must have left it to the jury to say whether the facts constituted a felony, and the Court will not disturb the finding of the magistrates before whom all the facts were.

Field for the appellants.-The conduct of the parties amounted to gross impropriety, but did not constitute a felony. But assuming that on an indictment a felony might have been found, the offence has not been found in this case. The information charges the parties with felony, but the justices have merely found that they were there for an unlawful purpose. The conviction, therefore,

cannot be sustained.

COCKBURN, C.J.-I think that the justices have stopped short of finding the charge on which the information is based. The information alleges that the appellants were in the house of the respondent "for an unlawful purpose, to wit, for the purpose of feloniously stealing." But the justices have hesitated to hold that

the purpose was felonious, and have merely said that they were there for the unlawful purpose of consuming the respondent's provisions. Now this may be, and is, an unlawful purpose; but it is not such an unlawful purpose as is laid in the information. Had the matter formed the subject of an indictment a judge probably would not have withdrawn the evidence from the consideration of the jury, although he might have been tolerably certain that the result would be an acquittal. But we are not sitting here to decide a fact, but to interpret the law, and as the magistrates have shrunk from actually finding that the offence is a felony, and have asked us to define whether the act does amount to a felony, we must hold that their finding does not sustain the information, and that the conviction must therefore be quashed.

CROMPTON, J.-I do not consider that, to insure a conviction under the Act, it is always essential that a felony should be proved; but, as the respondent has chosen to lay the unlawful purpose as a felonious one, he is confined to it, and it is our duty to see whether the charge has been found. Now there was some evidence which might have been left to a jury of a felonious intention, and the magistrates might probably have come to a conclusion that a felonious act was contemplated. But they have shrunk from doing so, and merely found that the appellants were in the house for the unlawful purpose of consuming the respondent's property. This is not the offence laid in the information, and I therefore think that the parties were not properly convicted of the matters with which they were charged.

BLACKBURN, J.-The conviction can only be supported by finding that the parties were in the house for the purpose of committing felony, for the information is so laid. Has the offence, then, been so found, and is the evidence sufficient to sustain the finding? Now the magistrates have simply found that the appellants were in the respondent's house for the unlawful purpose of joining in the taking and consuming the respondent's property without his knowledge or consent. This is insufficient, as I think that they should have shown that they were there with a felonious intent. It is difficult to define precisely what would amount to a felony, and the evidence might probably have warranted the justices in finding a felonious act, but as they have not done so, I think that the conviction must be quashed.

MELLOR, J., concurred.

Conviction quashed.

KERKIN

AND

OTHERS.

v. JENKINS.

1863.

Unlawful

purpose

5 Geo. 4, c. 83, s. 4.

COURT OF QUEEN'S BENCH.

May 30, 1863.

(Before BLACKBURN and MELLOR, JJ.) (a)

TAYLOR (Appellant) v. NEWMAN (Respondent).

Unlawful killing-Pigeons-24 & 25 Vict. c. 96, s. 23.

By sect. 23 of the 24 & 25 Vict. c. 96 (Larceny Act), it is enacted that, whosoever shall unlawfully and wilfully kill, wound, or take any housedove or pigeon, under such circumstances as shall not amount to larceny at common law, shall, on conviction, &c. :

Held, that this provision does not apply to a case where a party, under a claim of right, kills a pigeon which is doing mischief upon his land. A., the occupier of land, gave notice to B., who kept pigeons, that such pigeons did damage to his land, and that he would destroy them if they were not restrained. After this notice, finding the pigeons on his land, he fired his gun, whereupon they rose; he then fired again and killed one of them, and being convicted upon an information laid under the above section,

Held, that such conviction was bad.

THIS

HIS was a case stated by justices at petty sessions upon a conviction under sect. 23 of the 24 & 25 Vict. c. 96 (the Larceny Consolidation Act), for unlawfully killing a pigeon.

By the above section it is enacted: "Whosoever shall unlawfully and wilfully kill, wound, or take any house-dove or pigeon, under such circumstances as shall not amount to larceny at common law, shall, on conviction before a justice of the peace, forfeit and pay over and above the value of the bird, any sum not exceeding 21."

The facts of the case were these. A number of house pigeons belonging to a Mr. Lloyd, were kept for him at or near the house of one Thomas Newman, his gamekeeper, the respondent.

The appellant is a farmer, whose land is very near the house of

(a) Cockburn, C.J., was unavoidably absent, and Wightman, J. was sitting in the Divorce Court.

TAYLOR

V.

1863.

Unlawful

killing

the respondent, and the pigeons in question were in the habit in the day time of flying over and upon and feeding on appellant's NEWMAN. lands. Appellant complained to the respondent of the injury he supposed to be done him by the pigeons, and on the 1st of January, 1863, he caused the notice hereinafter set forth to be served on Mr. Lloyd. On the 5th of February last appellant, with a loaded gun in his hand, went into one of his fields, where the said pigeons were feeding on the ground. Appellant fired at the pigeons, and thereby caused them to rise. Appellant then fired at them a second time, and killed one of the pigeons, which he left dead on the ground. The value of the pigeon killed was said to be 2s. 6d.

The following is a copy of the notice served on Mr. Lloyd above mentioned:

"Hastings, 1st January, 1863.

"SIR, Mr. Stephen Taylor, of Merriments Farm, Solehurst, has complained to us of the serious injury and annoyance he has sustained, and still continues to suffer, by reason of your pigeons being allowed to feed on his land, and he states he has in vain complained to you through your keeper about the matter, and he has now instructed us to inform you that he shall hold you responsible for all damages he may sustain in consequence; and we have to request that you will immediately cause them either to be destroyed, or prevent them doing further injury to Mr. Taylor's crops; if not, although Mr. Taylor will very much regret to do any act which may be considered at all unneighbourly, he will be compelled in self defence to shoot or otherwise destroy such pigeons, besides claiming damages against you as above stated; and you will be pleased to take this as notice of such his intention. We are, &c.,

"J. G. LANGHAM and SON."

On these facts it was contended by the appellant's attorney that the killing of the pigeon under the circumstances above stated was not an "unlawful killing," and therefore did not render appellant liable to the penalty imposed by the 23rd section of 24 & 25 Vict. c. 96, because after giving the above-mentioned notice, and the pigeons being still permitted to come upon his land, the appellant was justified by law in killing the said pigeons.

Francis, in support of the conviction, argued that, reclaimed pigeons being private property, the appellant was guilty of an unlawful act in killing the pigeon in question, within the meaning of the section. The present law is a re-enactment of section 33 of the 7 & 8 Geo, 4, c. 29, and was meant to apply to cases of an unlawful killing where the act does not amount to a larceny at common law. That, even if he had a right to kill the pigeon whilst actually on the ground eating his corn, he had no right to do so when it was flying away. [BLACKBURN, J.-I cannot believe that the statute was ever intended to

24 & 25 Vict. 0.96, s. 23.

TAYLOR

v.

NEWMAN.

1863.

Unlawful killing

2425 Vict. c. 96, s. 25.

apply to a case where the pigeon was feeding upon a man's land, but only to cases where he does the act wantonly or without any colour of right. It seems strange to treat this as a criminal act.] If any damage were done the appellant could have maintained his action; here, moreover, he killed the pigeon whilst flying. [BLACKBURN, J.-If he was justified in shooting it whilst on the ground, he might kill it in the air. He would have no right to follow it off his ground.] It is upon the same footing as shooting a dog: (Vere v. Lord Cawdor, 11 East, 568.) [MELLOR, J.-That case turned upon the validity of a plea; here we have to do with the words in an Act of Parliament, and the question is what is the meaning of the word "unlawfully?"] He referred also to Dewell v. Sanders: (Cro. Jac. 492.)

Hannen, for the appellant, contended that this was not an "unlawful killing" within the meaning of the statute: (Rex v. Brooke, 4 C. & P. 131; Rex v. Cheafor, 21 L. J. 43, M. C.) That the statute does not mean to refer to any killing of pigeons which may not be justifiable, but such an improper killing as, though it would not amount to larceny at common law, would nevertheless be in itself a criminal act. That as this was done in the assertion of a right, it was not a criminal act: (Reg. v. Cridland, 7 El. & Bl. 879; Hannam v. Mockett, 2 B. & C. 934, Bayley, J.'s judgment.)

MELLOR, J.-I cannot but think that the section means to refer to those cases which do not amount to larceny, but are still unjustifiable killing, not to cases where the killing is under a claim of right.

Francis, in reply.

The

BLACKBURN, J.-I confess that I have entertained some little doubt upon the subject, but I think that upon a proper construction of the statute the appellant ought not to be convicted. section in question is found in a statute "to consolidate and amend the statute law of England and Ireland relating to larceny and other similar offences;" and as far as this provision goes it is a re-enactment of a section in the previous Act of the 7 & 8 Geo. 4, c. 29, and the preamble recites that "it is expedient to consolidate and amend the statute law of England and Ireland relating to larceny and other similar offences ;" and this leads to the inference that the offences contemplated by the statute are those ejusdem generis with larceny. Now the section as to pigeons follows immediately after that applicable to dogs and some other animals, and it imposes a penalty for unlawfully and wilfully killing, wounding, or taking any house-dove or pigeon under such circumstances as shall not amount to larceny at common law. Now, what is the kind of unlawful killing here referred to? There has been at times considerable difficulty in knowing whether the taking of pigeons under certain circumstances, as where they are not taken from the pigeon-house, amounts to larceny; and it was to meet such cases that the section was framed. I think in this case that the farmer, who was protecting