## Facts

- A landowner (Penn) was shooting wood pigeons and magpies in his garden to protect crops from prior damage.
- A third party released homing pigeons on a road near Penn’s garden; one pigeon was released slightly ahead of the others.
- Almost immediately after release, Penn shot the first pigeon as it flew over his garden area.
- Penn could not see the person releasing the birds and did not know pigeons were being released nearby.
- Conditions (bright sun glare and brief sightline over tall fruit trees) prevented Penn from reliably distinguishing a homing pigeon from a wood pigeon.
- The shot bird was a tame homing pigeon owned by another person and differed in size and color from a wood pigeon.
- Penn honestly believed he was shooting a wood pigeon and, after shooting, apologized and offered to pay the bird’s value.

## Issues

1. Under Larceny Act 1861 § 23, is it a defense to “unlawfully and wilfully” killing a house pigeon that the defendant honestly believed the bird was a wild pigeon he could lawfully shoot?
2. Is it a defense under § 23 that the defendant shot the bird based on apprehension that it might (though not yet) damage crops?

## Decision

- The Divisional Court held Penn liable under § 23.
- The court ruled it is not a defense that the defendant honestly believed the pigeon was a wild pigeon he might lawfully kill.
- The court ruled it is not a defense that the defendant acted from apprehension that the bird might possibly damage crops in the future.
- The court interpreted “wilfully” to be satisfied by the intentional act of killing the bird, without requiring knowledge that it was a protected house pigeon.

## Legal Principles

- For Larceny Act 1861 § 23, “wilfully” focuses on the deliberate act of killing the bird, not on awareness of the bird’s domestic/protected status.
- An honest mistake about a factual circumstance (whether the pigeon is wild versus a house pigeon) does not negate liability where the defendant intentionally performs the prohibited act.
- Anticipated or speculative crop damage, without more, does not supply lawful justification to kill a protected house pigeon under § 23.

## Conclusion

The court affirmed liability because Penn intentionally shot a pigeon that was in fact a protected house pigeon, and neither his honest mistake as to species nor his fear of possible crop damage made the killing lawful under the statute.


Cotterill v. Penn, 1 K.B. 53 (K.B. Div. Ct. 1936)