CHAPTER THE FIFTH.

OF STEALING IN A DWELLING-HOUSE TO THE VALUE OF 51. OR

MORE.

THE 7 & 8 Geo. 4, c. 29, s. 12, enacts, "that if any person shall 7 & 8 Geo. 4, steal in any dwelling-house any chattel, money, or valuable security c. 29, s. 12. to the value in the whole of five pounds or more, every offender being convicted thereof shall suffer death as a felon."

such

The 2 & 3 Wm. 4, c. 62, recited the preceding provision, and the 9. Geo. 4, c. 55, s. 12, (relating to Ireland) (a) and repealed "so much of the said acts as inflicts the punishment of death upon persons convicted of any of the felonies herein-before specified," and enacted, that after the 11th July, 1832, "every person convicted of any of the felonies herein-before specified, or of counselling, aiding or abetting the commission thereof, shall be transported beyond the seas for life." And the 4 Wm. 4, c. 44, s. 3, enacted that all persons punishable by transportation for life under the 2 & 3 Wm. 4, c. 62, should be liable previously to their being transported to be imprisoned, with or without hard labour, in the common gaol or house of correction; or to be confined in the Penitentiary for any term not exceeding four years nor less than one year.

The 1 Vict., c. 90, s. 1, recites these provisions of the 2 & 3 Wm. 4, 1 Vict. c. 90, c. 62, and 4 Wm. 4, c. 44, and repeals " so much of the said recited acts as relates to the punishment of persons convicted of offences for which they are liable under the 2 & 3 Wm. 4, c. 62, to be transported for life," and enacts, that "from and after the commencement of this act, (Oct. 1, 1837,) every person convicted of any of such offences, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years." And by s. 3, "in awarding the punishment of imprisonment for any offence punishable under this act, it shall be lawful for the Court to direct such imprisonment to be with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretion shall scem meet."

According to the construction put upon the repealed statute 12 DwellingAnne, c. 7, (which related to a stealing of this kind to the value of house.

(a) The provision in this act is verbatim the same as in the 7 & 8 Geo. 4, c. 29, s. 12.

forty shillings) the dwelling-house must be one in which burglary might be committed. (b) But with respect to buildings within the curtilage, the 7 & 8 Geo. 4, c. 29, s. 13, enacts, that no building, although within the same curtilage with the dwelling-house and occupied therewith, shall be deemed to be part of such dwellinghouse, for the purposes of burglary, or for any of the purposes aforesaid, (bb) unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered or inclosed passage leading from the one to the other. (c)

The repealed statute of 12 Anne, ousted of clergy every person who should feloniously steal any money, goods, &c. of the value of forty shillings or more, being in any dwelling-house; the recent statute enacts, that if any person shall steal in any dwellinghouse any chattel, &c.; but it has been construed upon the same principle, and considered as intended to give greater security only to property deposited in a house, so as to be under the Construction protection of the house, and not to property about the person of of the repealed the party from whom it is stolen. It may be useful, however, to

statute 12 Anne, c. 7. Property under the protection of the house.

It

notice some of the cases decided upon the repealed statute.
was decided upon that statute that its provisions did not extend to
a stealing in a man's own house; on the ground that the statute
was not intended to protect property, which might happen to be in
a house, from the owner of the house, but from the depredations
of others. (d) And, upon the same principle, where it appeared
that the prisoner was a married woman and had stolen the pro-
perty in the dwelling-house of her husband, it was holden that she
could not be convicted of the capital part of the charge, as the
house of the husband must be construed to be her house also:
and she was therefore found guilty only of the simple larceny. (e)
But a lodger who invited a man to his room, and there stole his
goods to the value of forty shillings when not about his person, was
holden liable to be found guilty of stealing in the dwelling-house
under that statute; the goods of a lodger's guest being under the
protection of the dwelling-house. The prisoner lodged at Wake-
field's, and having invited the prosecutor to sleep in his room, stole
the prosecutor's watch whilst it was hanging at the bed's head;
and he was convicted of stealing to the value of forty shillings in
the dwelling-house of Wakefield, [neither Wakefield nor any of his
family knew of the prosecutor's being there; so that he was the
guest of the prisoner, and it was doubted whether the prisoner was
not to be considered as the owner of the house with respect to the
prosecutor; but] upon a case reserved seven Judges against three
held the conviction right. (f) If a person go to bed leaving a watch
on the table in the room, and it is stolen while he is asleep, this is
a stealing in the dwelling-house. Upon an indictment for stealing

(b) 2 East, P. C. c. 16, s. 81, p. 644, Davies's alias Silk's case, ante, p. 805; and other cases cited in the Chapter on Burglary, ante, p. 797, et seq.

(bb) i. e. house-breaking and stealing in a dwelling-house.

(c) See ante, p. 799, et seq.

(d) Rex v. Thompson and Macdaniel, O. B. 1784. 1 Leach, 338. 2 East, P. C. c. 16, s. 81, p. 644.

(e) Gould's case, O. B. 1780. 1 Leach, 217. 2 East, P. C. c. 16, s. 81, p. 644, in which last book it is said, that the prisoner was the mistress of a brothel, and stole the money from a sailor who lodged in her husband's house.

(f) Rex v. Taylor, East. T. 1820, MS. Bayley, J., and Russ. & Ry. 418. I have inserted the statement between the brackets from Russ. & Ry. C. S. G.

in the dwelling-house under the 7 & 8 Geo. 4, it appeared that the
prosecutor had gone with the prisoner, who was a prostitute, to a
house, where they were shown into a room, for which he paid; he
fastened the door and put his watch in his hat, which he placed
upon a table, and then went to bed with the prisoner, and went to
sleep, and she, while he was asleep, stole the watch; it was suggested
that this was not a case within the statute, as the property was not
under the protection of the house, which was essential to support
the indictment, but under the protection of the person of the prose-
cutor. Parke B., and Patteson J., having considered the point and
looked into the cases, said that the preceding case was an authority
in support of the indictment; they therefore were of opinion that
under the circumstances, and the prosecutor having been asleep
when the watch was taken by the prisoner, it was sufficiently
under the protection of the house to bring it within the statute. (g)
So if one, on going to bed, put his clothes and money by the bed-
side, these are under the protection of the dwelling-house, and not
of the person; therefore a party stealing them was held rightly
convicted on an indictment for stealing in a dwelling-house; and
the question whether goods are under the protection of the dwell-
ing-house, or in the personal care of the owner is a question for the
Court and not for the jury. (h) But if a person put money under his
pillow, and it is stolen while he is asleep, this is not a stealing of
money in the dwelling-house within the meaning of the act.
Thus, where money was stolen from under the pillow of a
person sleeping in a dwelling-house, it was held, that the case
was not within the repealed statute. (i) So where a guest, when in
bed at an inn, placed his small-clothes containing his money
under his head and they were stolen, and the indictment was on
the repealed statute of the 12 Anne, c. 9, for stealing to the amount of
forty shillings in the dwelling-house, it was held that the property hav-
ing been thus taken under the party's personal protection, it was no
longer under the protection of the house. (k) And property left at
a house and delivered to the occupier under the supposition that
it was for one of the persons in the house, was considered to be
entitled to the protection of the house, and the stealing of it to
the value of forty shillings to be within that statute.
belonging to a Mrs. Douglas, who lodged at 38, in Rupert Street,
were delivered at No. 33 in the same street, where the prisoner
lodged, by a porter from the Green Man and Still, (but whether
by accident or collusion with the prisoner was not proved, as the
porter, though called upon his recognizance, did not appear,)
and the occupier of the house, No. 33, took them in and paid the
porterage, supposing them to be for the prisoner, whose name

(g) Rex v. Hamilton, 8 C. & P. 49, Parke, B., and Patteson, J. It is said in a note to this case, "it would appear that had the prosecutor been awake instead of asleep, in Taylor's case, the property was sufficiently within his personal control to render the stealing of it a stealing from the person;" but it is not stated in the report of Rex v. Taylor that the prosecutor was asleep, though probably that might be the case. C. S. G.

(h) Rex v. Thomas, Carr. Supp. 295, 3rd Edit. C. R.

Two boxes

(i) Anonymous, 2 Stark. C. P. 467, note (a), cor. Chambre, J., Lancaster Sum. Ass. 1812. Mr. Starkie adds, "but Ward was convicted and received sentence of death in a similar case, cor. Bayley, J., Lancaster Sum. Ass. 1814. Note, Ward was a guest at an inn." See the next note. C. S. G.

(k) Rex v. Challenor, Dick. Q. S. 245, 5th Edit., Park, J. A. J., who said that Ward's case (see the last note), held to the contrary, might have turned on some peculiar c'rcumstances.

Property delivered to the occupier of a

house by mistake.

Stealing to the

amount men

tioned in the statute at one time.

she did not know, as he had recently taken his lodging with her. Shortly afterwards when the prisoner came she told him of the arrival of the boxes, and of the porterage she had paid, when he said it was all right and he would pay her again. The boxes were put into his room, and he went out two or three times in the course of the evening, carrying bundles each time, and when he went out the last time he did not return again. The boxes were found entirely ransacked. The jury found the prisoner guilty, but upon a doubt whether these goods were sufficiently under the protection of the house to bring the case within the statute, the point was submitted to the consideration of the Judges, who held that the goods were under the protection of the dwelling-house, and that the capital conviction was therefore proper. (7)

In a case upon the same statute where the indictment was for stealing a bank-note of the value of 25l., in the dwelling-house of one C. M. Adams, it appeared that the prisoner was a lodger in Mrs. Adams's house, and that, on the day on which the offence was committed, she, wanting to get the note changed, sent her servant with it to his apartments, to request him to give her change for it; when the prisoner after examining his purse, and saying that he had not gold enough about him for the purpose, but that he would go to his bankers and get it changed, left the house with the note in his hand, and never returned. Upon these facts a question arose, whether the case was within the statute, which was considered as having been made to protect such property as might be deposited in the house, and not property which was on the person of the party: and the point having been saved for the opinion of the Judges, they were of opinion that the case was not within that statute. (m) And, upon the same principle, where a person, in possession of a large sum of money, was deluded by a ring-dropper, who pretended to have found a purse, to go into a public house and share its contents, and there induced to lay his money on the table, when the ring-dropper immediately took up the money, and carried it off, it was decided, upon reference to the Judges, that the case was not within that statute. majority of them were of opinion that, in order to bring a case within that statute, the property stolen must be under the protection of the house, and deposited therein for safe custody, as the furniture, plate, or money kept in the house, and not things immediately under the eye, or personal care of some one who happened to be in the house. (n)

Α

Another point was decided upon the statute of Anne, namely, that it was necessary the stealing should be to the amount of forty shillings at one time; it being a rule that a number of distinct grand larcenies cannot be added together, so as to consti

(1) Rex v Carroll, East. T. 1825,
R. & M. C. C. 89. See Rex v. Mucklow,
R. & M. C. C. R. 160, post, tit. Larceny.
(m) Campbell's case, O. B. Jan. 1792.
2 Leach, 564. 2 East, P. C. c. 16, s. 82,
p. 044, 645.

(n) Owen's case O. B. 1792. 1 Hawk.

P. C. c. 36 Of Larceny from the Dwel-
ling-house, s. 6. 2 Leach, 572. 2 East,

P. C. c. 16, s. 82, p. 645. And the same point was again decided in Castledine's case O. B. Oct. 1792, which was also referred to the Judges; and again in Watson's case, O. B. 1794. See 2 Leach, 574, note (a). 2 Leach, 640. 2 East, P. C. c. 16, s. 82, 645, 646, and s. 107, p. 680, 681.

tute a capital offence. Thus, where the evidence was that the prisoner was the servant of the prosecutor, and had, at different times, purloined his master's property to a very considerable amount, but it did not appear that he had ever taken to the amount of forty shillings at any one particular time; the Court held that the case was not within the statute. They said, that the property must be stolen to the amount of forty shillings at one and the same time: and that the several values of different portions of property, stolen at different times, could not be added together for the purpose of making the offence capital, they being in fact different and independent acts of stealing. (o) But where property was stolen at one time to the amount of forty shillings, and a part of it only, not amounting to forty shillings, was found upon the prisoner, and produced at the trial, the Court left it to the jury to say whether the prisoner had not stolen the rest of the things which the prosecutor lost, as well as those which had been produced. (p)

If a prisoner steal a number of different articles, amounting together to the value of five pounds, and take them all out of the house at one and the same time, this is an offence within the 7 & 8 Geo. 4, c. 29, s. 12, although they were stolen in the dwellinghouse at different times. Upon an indictment for stealing lace in the dwelling-house to more than the value of 5., it appeared that the prisoner sent the lace, which was in several distinct pieces, in a parcel from his master's shop, and no one piece of lace was worth 57; it was suggested that in favorem vitæ the Judge would take it that the pieces of lace might have been stolen at different times. Bolland, B., "I cannot assume that to have been so, we find that the lace is all sent in one parcel, and all brought out of the prosecutor's house at once; and unless you give some evidence to shew that it was stolen at different times, you do not raise your point; but even if you did, I should think it would be of no avail, for on the last Winter Circuit it appeared that a person at Brighton stole goods in the same way that you wish me to suppose that this person did, for it was shewn that he stole the articles, one or two at a time, and under the value of 5l., but that he carried them out of his master's house all together, the articles amounting in all to more than 57. value, and Mr. B. Garrow, after much consideration, held that as the articles were all brought out of the house together, it was a capital offence." (g)

state the name

As in cases of burglary, so in indictments for this offence, the The indictname of the owner of the house should be correctly stated in the ment must indictment; as a material variance in this respect will be fatal to of the owner the capital part of the charge. Thus, where an indictment upon of the house the statute of Anne stated the dwelling-house to belong to one J. correctly. Snoxall, and upon the evidence it appeared that it was not his house, it was holden that the prisoner could not be convicted upon that statute; (r) and it was holden to be a variance fatal to the capital

(0) Petrie's case, 1 Leach, 294.

(p) Hamilton's case, 1 Leach, 348. The jury found the prisoner guilty of stealing goods in the dwelling-house to the value of forty shillings.

(7) Rex v. Jones, 4 C. & P. 217, Bolland, B. This decision seems clearly cor

rect, for as long as the goods were in the
owner s house they were in his possession,
and the removal from the house was a new
larceny of all. See Rex v. Dyer, 2 East,
P. C. c. 16, s. 154, p. 767, 768, and Rex
v. Atwell, ibid. C. S. G.

(r) White's case, 1 Leach, 252, ante, p. 827.