do the thing complained of, nor to any trespass, not being wilful or malicious, committed in hunting, fishing, or in the pursuit of game (n).

dangerous or

Making or knowingly having in possession, any gun- Making or powder, or any dangerous or noxious thing, or any having instrument or thing, with intent thereby, or by means noxious thing thereof, to commit any of the felonies mentioned in with intent, the Act, is a misdemeanor, punishable by imprisonment not exceeding two years (o).

Certain general rules are appended to apply generally to all the offences dealt with in the Act:

&c.

malice need not

It is not necessary to prove that the defendant Particular was actuated by malice against the owner of the pro- be shewn. perty (p).

offender was in

possession of

If a person, with intent to injure or defraud any No defence that other person, does any of the prohibited acts, it is no defence that he (the offender) was in possession of the the property. property against, or in respect of which such act was done (q); as, for example, if a tailor or carrier wilfully and maliciously destroys goods intrusted to him.

to defraud, &c.,

When it is necessary to allege an intent to injure or Proof of defraud, it is not necessary to allege in the indictment, general intent or prove at the trial, an intent to injure or defraud any will suffice. particular person; proof of a general intent to injure or defraud will suffice (r).

(n) s. 52. (v) s. 54. (p) s. 58. (q) s. 59. (r) s. 60.

Criminal procedure.

BOOK III.

HAVING considered the essentials of crime in general, and examined the character of particular crimes, a second portion of the matter with which the Criminal Law is concerned now presents itself to our notice, namely, the proceedings, which have for their object the conviction of the guilty and the discharge of the innocent. But before entering upon the subject of Criminal Procedure, it will be well to inquire what measures the law has adopted in order to render those proceedings as far as possible unnecessary; in other words, to treat of the Prevention of Offences.

CHAPTER I.

PREVENTION OF OFFENCES.

measures for

UNDER this head fall two classes of measures, differing Two classes of considerably in their nature. The first is applicable the prevention chiefly in the case of those who have to some extent of offences. erred, but whom it is not deemed advisable to visit with punishment in the strict sense of the term. The second consists of general measures and provisions for the prevention of the commission or repetition of offences.

securities.

A. The first mode of preventing offences may be Finding generally said to consist in obliging those persons, whom there is probable ground to suspect of future misbehaviour, to stipulate with and give full assurance to the public that the offences which are apprehended shall not happen. This is effected by their finding pledges or securities, which are of two kinds :

i. For Keeping the Peace. ii. For Good Behaviour. But in the first place we shall go over the ground which is common to both.

Of what does this "giving security" consist? The The recogniperson of whose conduct the law is apprehensive is zance. bound, with or without one or more securities, in a recognizance or obligation to the Crown.

This is taken

by some court or by some judicial officer. The recognizance is of the nature following:-The person bound acknowledges himself to be indebted to the Crown in the sum specially ordered, with a condition that it

Forfeiture.

Who may demand securities.

Who may be bound.

shall be void if he appear in court (a) on such a day, and in the meantime keep the peace either generally towards the sovereign and his people, or particularly also with regard to the person who seeks the security. Or, as is more usual, the recognizance may be to keep the peace for a certain period, an appearance in court not being required. If it be for good behaviour-then on condition that he demean and behave himself well, either generally or specially, for the time therein limited, as for one or more years, or for life. If the condition of the recognizance is broken, in the one case by any breach of the peace, in the other by any misbehaviour, the recognizance becomes forfeited or absolute. It is estreated, or extracted from the other records, and sent up to the Exchequer; the party and his sureties becoming the Crown's absolute debtors for the sums in which they are respectively bound (b).

By whom may these securities be demanded? By any justice of the peace, and also by certain others who are regarded as conservators of the peace; for example, the judges of the Queen's Bench Division, the coroner, sheriff, &c. They may demand the security at their own discretion, or at the request of a subject, upon his shewing due cause. If the magistrate is unwilling to grant it, it may be obtained by a mandatory writ, called a supplicavit, which will compel him to act as a ministerial and not as a judicial officer. But this writ is seldom used; for when application is made to the superior courts, they usually take the recognizance there, as they are empowered to do by statute (c).

Any person under the degree of nobility may be bound over either by a justice or at the quarter sessions. Wives may demand security against their hus

(a) v. Arch. Q. S. 269.

(b) 4 Bl. 252.

(c) v. 21 Jac. 1, c. 8.

bands, and vice versa. Infants may demand security, and may be compelled to find security by their next friend.

The proceedings are the following in case of securities granted (a) by a justice out of sessions; (b) at the sessions.

trate;

(a.) If no sessions are sitting, the person requiring Proceedings immediate security goes before a justice, and on oath before a magismakes his complaint, which is usually, though not necessarily, in writing. If the person complained of is present, he may be required at once to enter into the required recognizance; but if not present, the magistrate issues a warrant to bring him before himself or some other magistrate. The warrant is executed by the person to whom it is directed. If the delinquent refuses to go before the magistrate, he may be put into prison without any further warrant. When he comes before the magistrate, he must offer sureties, or else he may be committed to prison for a term not exceeding twelve months (d). The form of the recognizance is chiefly in the discretion of the magistrate, both as to the number and the sufficiency of the sureties, the largeness of the sum, and the time for which the party shall be bound.

(b.) By the sessions. Application may be made by at sessions. the party requiring security at once to the sessions. And this is the more usual course. It should be made upon articles verified on oath, shewing the facts to warrant it. If the person refuses, or is not prepared to enter into the recognizance, he may be committed.

So far the two kinds of security are on the same footing. They must now be considered separately.

(d) 16 & 17 Vict. c. 30, s. 3.