MODUS. crimes of mob against accused. if libelled in the major, is sufficiently charged, if it be set forth as having been done by the mob in pursuance of the common purpose, and the accused charged with having been actively engaged with the mob in the acts Charging several of mobbing and murder libelled (1). Although it is sufficient to charge at the conclusion the presence and participation of the accused with the mob "in the "whole of their said unlawful proceedings, and in the "commission or perpetration of the several crimes or "offences above libelled, or of one or more of them "it is usual and better to name the crimes, thus—“in "the commission of the foresaid acts of mobbing and "rioting, of assault, and of murder, all as before "libelled" (2). Act read may be stated, though on. It is not incompetent to state narrativè that the Act not libelled Riot Act was read, and that the mob thereafter persevered, although the Act is not libelled on in the major, and although the other facts necessary to constitute a contravention of the Act are not set forth (3). Riot, &c. Night poaching.' RIOT AND BREACH OF THE PEACE.-Riotous conduct and breaches of the peace when committed by individuals are generally dealt with summarily. Where a riot is committed by a number of persons, the general forms of a case of mobbing are applicable, with the exception of the clause relating to the common purpose. NIGHT POACHING OFFENCES.-A third offence of taking game, or being on land armed for that purpose, is charged by I. A statement (as the case may be), either that the accused did "wilfully enter, or was in" certain land described, with "a net, or other instrument for "the purpose of taking or destroying game," or did unlawfully take or destroy" certain animals described 1 Will. Gibson and others, H.C., Dec. 30th 1842; 1 Broun 485 and Bell's Notes 110. 2 See observations by Lord Justice Clerk Hope in Henry Brown and others, H.C., May 11th 1846; Ark. 73. 3 Geo. Smith and others, Glasgow, May 3d 1848; Ark. 473. (or both these things may be stated cumulatively), MODUS and II. A statement that the accused had been twice previously convicted of the said statutory crime and offence. Proprietor of Although it is not a legal objection that the pro-and should be prietor of the land is not named, if the description be named. otherwise sufficient, it is better to state whose property the land was (1). It is not necessary to state whether Open or enthe land was open or enclosed (2). closed. Taking game on road. A third offence of taking game on a road, is charged To by a statement that— I. At a place described (so as to shew it to be such as the Act contemplates), the accused did “unlawfully take or destroy" certain animals described, and II. That the accused had been twice previously convicted of the said statutory crime and offence. of word A charge under this section, which set forth that Misplacement the accused did "unlawfully enter in or upon certain “unlawfully.” "outlets or gates, or upon the public road passing by 66 a field described," and did "then and there kill or "destroy a hare," was held irrelevant, as entering on a public road was not unlawful, and it was not said that the accused destroyed the hare "unlawfully" (3). Night poaching assaults are libelled by I. A narrative of the contravention of § 1 of the 9 Geo. IV. c. 69, or of the 7 and 8 Vict. c. 29. II. That the accused having been found at the place described committing the contravention described, and (a) certain person(s) named and described (by such a quality as is recognised by the section of the statute. 1 This was observed by Lords Cowan and Ardmillan in John Bird, Perth, April 21st 1863 (unreported). -See also observation by Lord Ardmillan in Mackenzie v. Maberley, H.C., Nov. 21st 1859; 3 Irv. 459 and 32 S. J. 5. 2 The two rules here stated apply also to offences under the 9th section of the Act of 9 Geo. IV., c. 69. 3 Mains and Bannatyne v. Maclullich and Fraser, H. C., Feb. 6th 1860; 3 Irv. 533 and 32 S. J. 475. Night poaching assaults. MODUS. Several persons armed. as giving authority to arrest offenders-such as being gamekeeper(s) of the proprietor, or the proprietor himself, or the like), having seized and apprehended the accused as offending under the statute before recited, or having advanced or attempted to do so (or pursued the accused to a certain other place for the purpose of apprehending him, as the case may be), that III. The accused did assault or offer violence to the said person(s) with "a gun or guns, or other fire-arms, "or other offensive weapon or weapons," and did certain acts of assault described. The offence of several persons going armed in pursuit of game is charged by a statement-* I. That the accused did in company to the number of three or more together (or where there are only two accused), did in company together, and in company with some other person or persons to the prosecutor unknown, to the number of three or more together, (or where there is only one accused), did in company with some other persons to the prosecutor unknown, to the number of three or more together, II. Unlawfully enter and were upon certain land described, III. For the purpose of taking or destroying game or rabbits, IV. (Where there are several accused) "you the "said John Brown, David Green, and Peter White, being all and each or one or more of you then and "there armed with" (a) certain weapon(s) described, or with some other offensive weapon, or weapons (or where there are two accused); "you, the said John "Brown and David Green, both, and each or one or "other of you, or the said unknown person, or persons, ,, or one or more of them, being armed," as above (or where there is only one accused); "you, the said John • Vide the rules referred to in note 2, previous page. Brown, or the said unknown persons, or one or more MODUS. "of them, being armed," as above. accomplice not Where the persons not among the accused, or any Name known of of them, are known to the prosecutor, the names and indicted. designations of those who are known are given, e.g., you, the said John Brown and Peter White, in com pany with Walter Black, horse keeper, now or lately sons," &c., and number must be case of there being several or only one accused. The Statement as to statement that the offenders were to the number of precise. three or more must be distinct. Where a charge set forth that the accused did "all and each, being to the "number of three or more together, or one or more of "you," unlawfully enter land, &c., the bad arrangement of the charge was held fatal, as the "or one or more "of you," being placed at the end, appeared to be a negative alternative to the "being to the number of "three or more together" (1). But such a statement as "you, the said A. B. and C. D., did both, and each or one or other of you, in company with D. E. and "F. G., or one or other of them, or in company with some other person, or persons, to the prosecutor un"known, to the number of three or more together," &c., is sufficient (2). BREACH OF DUTY.-A charge of breach of duty by Breach of duty. a public officer should state I. The fact that the accused held a particular office described, II. That it was his duty, as holding that office, to do certain things; and— III. That he nevertheless acted in a certain way described, being contrary to the duty specified; and— 1 Malcolm Macgregor and others, Perth, April 28th 1842; 1 Broun 331 and Bell's Notes 186.-See also Henry Puller and George Irvine, H.C., Jan. 31st and March 1st 1870; 1 Couper 398 as an instance of a libel charging two of the statutory MODUS. Trust specifically described. Breach of duty in ships. IV. That he did this in wilful neglect and violation of his duty, and of the trust reposed in him in the said office (1). A charge was abandoned where it was objected that the duties and trust were not described, it being only averred that the accused when a person was brought before him, "as superintendent of the police establishment," &c., did in breach of duty and trust reposed in him "as superintendent aforesaid," act in a particular manner (2). Charges of breach of duty under the Merchant Shipping Act 1854 (3), are laid either on wrong acts Doing wrong act, done, or proper acts omitted. A charge of acting wrongly requires Not doing proper act. I. An explanatory narrative, giving the description of ship, voyage, &c., II. A statement of the improper acts done, by the accused, III. That this was wilful breach of duty, or neglect of duty, or by reason of drunkenness, or by a combination of these (as the case may be); and— IV. A statement that all this, or part thereof, "tended to the immediate loss, destruction, or serious damage of the ship, or to the immediate danger of "life and limb of persons on board," or to both of these combined, as the case may be (4). In a charge of refusal or omission to do any proper or requisite act, the libel should set forth— I. A narrative as above. II. That the accused refused or omitted, as the case may be, to do a certain act III. By wilful breach, &c., as above, 1 See Donald Smith, H.C., June 4th 1827; Syme 185.- Henry F. Adie, H.C., July 24th 1843; 1 Broun 601. 2 Alex. Findlater and Jas. M'Dougall, Glasgow, Jan. 9th 1841; 2 Swin. 527 and Bell's Notes 186. 4 John Martin, H.C., July 22nd 1858; 3 Irv. 177 (indictment). |