Scottish Court of Session Decisions

Thomas Arthur, a bolter, residing in Dundyvan, in the parish of Old Monkland, Lanarkshire, appealed against a conviction obtained against him by John Kidd Peebles, procurator-fiscal for the county of Lanark. The indictment upon which the conviction was obtained set forth that the appellant, along with another man named Abraham Burton, had been guilty of an offence within the meaning of the Act 2 and 3 Will. IV. cap. 68, entituled “An Act for the more effectual prevention of trespasses upon property in pursuit of game,” in so far as on the 15th of May 1876 the appellant and the said Abraham Burton did commit a trespass by entering, or being without leave of the proprietor “in and near, a field in the farm of Kirkstyle, in the parish of Old Monkland and county of Lanark (the property of the Rev. Sholto Douglas Campbell Douglas of Rose Hall, and occupied by James Buchanan, a farmer), in search of game, and did kill a hare on said field. Secondly, they were charged with committing a further trespass by entering or being without leave of the proprietor in the field on the farm of Bankhead, (the property of David Carrick Buchanan of Drumpellier, and occupied by John Hendrie, residing at Kirkwood) in pursuit of game. The appellant, on being brought before the Justices of Peace for the county on this charge on the 1st of June, was fined £1, 10s. of modified penalty, with £2, 13s. 6d. of expenses, and in default six weeks' imprisonment. The charge against Burton, who was not charged with the offence till the 5th of June, was found not proven, although the two men were both together and the appellant had been convicted. The appellant therefore, on this ground, and also in consequence of an alleged informality in the indictment, craved a bill of suspension and liberation.

Argued for him— (1) In libelling a charge under the statute the language of the statute must be used. Accused is not charged with entering on any lands without leave of the proprietor, but with entering, and being in and near, the field. This charge contains too many alternatives, and the justice found him guilty of the offence charged. It is not clear that the justice may not have thought that being “near” afield was an offence and have found him guilty accordingly; but being “near” a field is not an offence except in regard to night-poaching. “In and near” is an ambiguous expression. The justice had it in his discretion to send the accused on conviction to prison, or to grant warrant for poinding his goods; but here warrant for imprisonment was granted without stating reason for so doing. It is evident the justice did not consider the alternative, which he ought to have done. Lastly, the two men ought to have been tried together.

Argued for respondent— The charge is not alternative; and if one be relevant and the other be irrelevant, the appellant has been convicted of both charges. At any rate the words “and near” are surplusage, and are to be disregarded.

At advising—