of the felonious offence (m). And where the stealing or taking of the property guiltily received is punishable by the same Act by way of summary conviction, either for every offence, or for the first and second offences only, or for the first offence only,-the guilty receiver may also be summarily convicted; and he is liable for every first, second, or subsequent offence of receiving to the same consequences as those to which a person guilty of a first, second, or subsequent offence of stealing or criminally taking such property, is made liable (n). Moreover, with the intention of removing, so far as possible, the temptation to this species of crime, it was provided by the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), ss. 10, 11, that every person occupying or keeping a lodging, beer or public house or place of public entertainment or resort, or any brothel, who knowingly lodges or harbours therein thieves or reputed thieves, shall be liable to a penalty not exceeding 107., and in default of payment may be imprisoned for four months, with or without hard labour (0). II. [Malicious mischief is another species of injury to private property, which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another's loss; which is (m) 24 & 25 Vict. c. 96, s. 95. (n) Sect. 98. As to guilty receivers in the case of anchors, &c., see 1 & 2 Geo. 4, c. 76, s. 10; 9 & 10 Vict. c. 99, s. 29. In the case of post letters, &c., see 7 Will. 4 & 1 Vict. c. 36, ss. 30, 41, 42; 9 & 10 Vict. c. 24, s. 1; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47. In order, as far as possible, to prevent this crime in reference to articles affording peculiar temptations, VOL. IV. dealers in marine stores are placed under regulations by 17 & 18 Vict. c. 104, s. 480, and in old metals by 34 & 35 Vict. c. 112, s. 13. See also 27 & 28 Vict. c. 91, ss. 3, 10, 11. (0) See Marshall v. Fox, Law Rep., 6 Q. B. 370. As to searching for stolen property, see 34 & 35 Vict. c. 112, s. 16. As to the evidence to prove guilty knowledge, ib. s. 19. L [some, though a weak excuse; but either out of a spirit of wanton cruelty, or of black and diabolical revenge; in which it bears a near relation to the crime of arson: for as that affects the habitation, so this does the other property of individuals.] And therefore any damage arising from this mischievous disposition, though considered only in the light of a trespass at common law, is by a multitude of enactments (now consolidated into a single statute) made highly penal. The statute here referred to is in substitution of a prior Act with a similar object (the 7 & 8 Geo. IV. c. 30); and it is the 24 & 25 Vict. c. 97, passed in the year 1861, "to consolidate and amend the statute law relating to malicious injuries to property"(p). And as to such injuries we may premise in general that though malice is the usual motive for this class of crimes, yet the statute contains an express enactment that its provisions 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 (g). Some of the provisions of this Act are noticed in other parts of the work, and they are too numerous for complete enumeration. It may be mentioned, however, that it makes specific provision against malicious injuries to silk, woollen, linen, cotton, hair, mohair, or alpaca goods in the process of manufacture, or to the machines employed therein (r); to machines used in other manufactures (s); to hop (p) The numerous statutes cited by Blackstone in reference to malicious injuries to property, were repealed by 7 & 8 Geo. 4, c. 27. (9) 24 & 25 Vict. c. 97, s. 58. See as to this the case of Reg. v. Child, Law Rep. (1 C. C. R. 307), referred to in the Report of the Criminal Code Bill Commission, p. 30. See also The Queen v. Pembliton, ib. 2 C. C. R. 119. (r) Sect. 14; felony, extreme of penal servitude, life. Where the prisoner is convicted on indictment for either a felony or a misdemeanor under this Act, and the punishment inflicted is by way of imprisonment, it may be to the extent of two years, with or without hard labour and solitary confinement, and, if a male under sixteen, whipping. (s) Sect. 15, felony, seven years. (See The Queen v. Fisher, Law Rep., i C. C. R. 7.) binds (t); to dwelling-houses and other buildings (u); to trees and shrubs adjoining dwelling-houses (r), or elsewhere (y); to garden produce (≈); to vegetable productions growing elsewhere (a); to fences (b); to mines (c), and mining engines (d); to sea banks and walls (e); to navigable rivers and canals (ƒ); to ponds (g); to bridges and viaducts (h); to turnpike gates (i); to railway and railway carriages or engines (); to electric or magnetic telegraphs (7); to works of art in public places (m); to cattle (); to other animals (6); to ships and vessels (p); to buoys and sea marks (q); and to wrecks (r). And all of these injuries are made,—according to their several degrees of mischief or malignity,-either felonies or misde (t) 24 & 25 Vict. c. 97, s. 19, felony, fourteen years. () Sects. 9, 10. If by explosion of gunpowder or other explosive substance in a dwelling-house, and the life of any person be endangered, felony, life; if by placing such explosive substance in any building, with intent to destroy it, felony, fourteen years. By sect. 13, any tenant of a building unlawfully and maliciously pulling it or any part of it down in severing fixtures, is guilty of a misdemeanor. (x) Sect. 20, (if injury done exceed 1.,) felony, five years. (See 27 & 28 Vict. c. 47.) (y) Sect. 21, (if injury done exceed 51.,) felony, five years. (See 27 & 28 Vict. c. 47.) If, however, the injury to the tree, &c., wherever growing, do not amount to 18., then a first offence is only punishable by way of summary conviction.— Sect. 22. (z) Sect. 23, first offence, summary conviction; second offence, felony, extreme of penal servitude, five years. (27 & 28 Vict. c. 47.) (a) Sect. 24, summary conviction. (b) Sect. 25, summary conviction. (i) Sect. 34, misdemeanor, fine and imprisonment as at common law. (k) Sect. 35, felony, life. And see sect. 36, as to misdemeanor, by obstructing engines, &c., by any unlawful act, or wilful omission or neglect. (1) Sects. 37, 38, misdemeanor, imprisonment. (m) Sect. 39 (re-enacting 8 & 9 Vict. c. 44, repealed by 24 & 25 Vict. c. 95), misdemeanor, impri sonment. (n) Sect. 40, felony, fourteen years. (0) Sect. 41, summary conviction. (p) Sects. 42-47, felony, life, fourteen or seven years, according to the nature of the injury. (g) Sect. 48, felony, seven years. years. meanors, or else offences such as may be disposed of, by way of summary conviction, before a justice of the peace (s). The Act also contains a general provision, that whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatever, either of a public or private nature, for which it provides no other punishment, shall be guilty of a misdemeanor, (provided the injury shall exceed the value of 57.,) and be liable to imprisonment (with or without hard labour) to the extent of two years; and if the offence be committed by night, may be sentenced either to such imprisonment or to penal servitude to the extent of five years (). And another, that such offenders as last mentioned, in cases where the damage does not exceed the value of 51., may be summarily convicted before a justice of the peace, and may either be committed to prison (with or without hard labour) to the extent of two months, or else shall forfeit such sum of money (not exceeding five pounds) as shall appear to the said justice a reasonable compensation for the damage committed: which sum, in the case of private property, shall be paid to the party aggrieved; but, when property of a public nature or a public right is concerned, shall be paid over to the treasurer of the county, borough or place for which the convicting justice acts (u). There is, however, a proviso that nothing in either of these provisions shall extend to any case where a party trespassing, acted under a fair and reasonable supposition that he had a right to do the act complained of; nor to any trespass, (not being wilful or malicious,) committed in hunting, fishing, or the pursuit of game (x). III. [Forgery (or the crimen falsi) is an offence which was punished by the civil law with deportation or banish (8) Vide post, Chapter on Summary Convictions. (t) 24 & 25 Vict. c. 97, s. 51. (See The Queen r. Pembliton, Law Rep., 2 C. C. R. 119.) (u) See 11 & 12 Vict. c. 43, s. 31. (x) 24 & 25 Vict. c. 97, s. 52. See also sect. 53. [ment, and sometimes with death (y). It may with us be defined to be, the fraudulent making or alteration of a writing, or seal, to the prejudice of another man's right; or of a stamp, to the prejudice of the revenue (3).] In reference to this crime, as regards writings, it has, among other points, been decided, that the instrument forged must so far resemble the true instrument as to be capable of deceiving persons who use ordinary observation (a) : that any material alteration, (however slight,) is a forgery, as well as an entire fabrication (b): that the fraudulent application of a false signature to a true instrument, or a real signature to a false one, are both forgeries (c): and that even if the name forged be merely a fictitious one, it is as much forgery, if done for the purpose of fraud, as if the name were that of a real person (d). It may also be remarked, that by 9 Geo. IV. c. 32, it was provided-even before the change of law, by which interested parties were made competent witnesses in criminal as well as civil inquiries (e),—that the party whose name was forged might be called as a witness to prove that the writing is not his. But on the other hand it is an established rule, that the proof of forgery by a mere comparison of handwriting is not admissible (f). At common law, this offence was a misdemeanor only (g): but when, in the progress of society, the perpetration of it became more easy, and its tendencies more dangerous, it became necessary to assign to it a more penal character, as regards those instruments which most required protection. (y) 4 Inst. 18, 7. (2) 2 East, P. C. c. xix. s. 60. (a) R. v. Collicott, R. & R. C. C. R. 212; S. C. 229. (b) 2 East, P. C. c. xix. s. 4. (c) 3 Chit. Crim. Law, 1038, cites 1 Hale, P. C. 683; et vide 2 East, P. C., ubi sup. (d) R. v. Bontein, R. & R. C. C. R. 260. See Dunn's case, 1 Lea. C. C. 59; R. v. Martin, Law Rep., 5 Q. B. D. 34. (e) This was by 6 & 7 Vict. c. 85. (f) Doe v. Suckermore, 5 A. & E. 703. See Taylor on Evidence, p. 1428, n. (5), 2nd edit. (g) In the Report of the Criminal Code Bill Commission it is remarked (p. 29), that "it is not possible to say precisely what are the documents the false making of which is forgery at common law." |