stated to have been, that the centre building, being a place for carrying on a variety of trades, and having no internal communication with the adjoining houses, could not be considered as part of any dwelling-house; and that it was not to be considered as under the same roof as the houses adjoining, though the roof of it had a connexion with the roofs of the houses. (h) partly for the separate busi ness of the But where there was an internal communication between a Factory and factory and the dwelling-house by means of an open passage only, dwellinghouse with an the factory, being within the same fence as the dwelling-house, internal comand used with it, was held to be parcel of the dwelling-house; al- munication, though it was used partly for the separate business of the occupier the factory of the dwelling-house, and partly for a business in which he had being used a partner. The premises were surrounded by a garden wall, the front wall of the factory, and the wall and gate of the stable yard; they were of the extent of rather more than an acre, and the house occupier of the dwellingwas in the centre; there was no other communication between the house, and house and the factory than by one open passage inside the walls. partly for a In the factory the prosecutor, the occupier of the dwelling-house, which he had carried on one business of his own, and another jointly with a a partner. partner, who lived elsewhere; and the rooms over the factory were used for the joint as well as the separate business. These rooms were broken into, and part of the separate property of the prosecutor, and also part of the joint property was stolen; and upon an indictment for burglary in the dwelling-house of the prosecutor, and after conviction, a case being reserved, the Judges held that these rooms were part of the prosecutor's dwelling-house, and that the conviction was right. (i) business in distinct title It was said upon the old law of burglary, that if a man took a Outhouse lease of a dwelling-house from A., and of a barn from B., such holden under a barn would be no parcel of the dwelling-house, and not therefore from the dwella place in which burglary could be committed; (j) a position ing-house. leading to the inference, that no outhouse, holden under a distinct title from the dwelling-house, could be the subject of burglary. But upon this it was observed, that the circumstance of an outbuilding being enjoyed by the occupier under a different title from his dwelling-house, seemed a very unsatisfactory reason of itself for excluding it from the same protection, if it were within the curtilage, or under the same roof, and actually enjoyed as parcel of the dwelling-house in point of fact, and under such circumstances as would, apart from the difference of title, constitute it parcel of the mansion in point of law. (k) into a building. not opening A door, wall, or other fence forming part of the outward fence Outward fence of the curtilage, and opening into no building, but into the yard of curtilage only, was held not to be such a part of the dwelling-house as that the breaking thereof would constitute burglary; and it was held to make no difference that the door broken was the entrance to a covered gateway, and that some of the buildings belonging to the dwelling-house, and within the curtilage, were over the gateway, and that there was a hole in the ceiling of the gateway for taking (h) Rex v. Egginton and others, 2 Leach, 913. 2 East, P. C. c. 15, s. 10, p. 494. 2 Bos. & Pul. 508. (i) Rex v. Hancock, East. T. 1810, MS. Bayley, J., and Russ. & Ry. 170. (k) 2 East, P. C. c. 15, s. 10, p. 494. up goods into the building above. The prosecutor had a dwellinghouse, warehouses, and other buildings, and a yard; the entrance into the yard was through a pair of gates which opened into a covered way; over this way were some of the warehouses, and there was a loop-hole and crane over the gates to admit of goods being craned up; and there was also a trap-door in the roof of the covered way; there was free communication from the warehouses to the dwelling-house: the prisoners broke open the gates in the night with intent to steal, and entered the yard, but did not enter any of the buildings; and, upon a case reserved, the Judges were unanimous that the outward fence of the curtilage, not opening into any of the buildings, was no part of the dwelling-house. (7) So an area gate opening into the area only is not such part of the dwelling-house, that the breaking of the gate will be burglary, if there be any door or fastening to prevent persons in the area from entering the house, although such door or other fastening may not be secured at the time. The prisoners opened an area-gate in a street in London, and entered the house through a door in the area which happened to be open, but which was always fastened when the family went to bed, and was one of the ordinary barriers against thieves. Having stolen in the house to the value only of thirtynine shillings, a question was made whether the breaking the areagate was breaking the dwelling-house so as to constitute burglary, and as there was no free passage in time of sleep from the area into the house, the Judges held unanimously that the breaking was not a breaking of the dwelling-house. (m) (1) Rex v. Bennett and another, Hil. T. 1815, MS. Bayley, J., and Russ. & Ry. 289. (m) Rex v. Davis and another, Hil. T. 1817, MS. Bayley, J., and Russ. & Ry. 322. CHAPTER THE SEVENTH. OF BREAKING &c. AND STEALING IN ANY SHOP, WAREHOUSE, OR COUNTING-HOUSE. By THE 7 & 8 Geo. 4, c. 29, s. 15, enacts, "that if any person shall The 1 Vict. c. 90, s. 2, recites, sec. 15 of the 7 & 8 Geo. 4, c. 29, 1 Vict. c. 90, and repeals so much of it as relates to the punishment of persons s. 2. convicted of any of the offences therein specified, and enacts that every person convicted after the commencement of this act (1 October 1837) of any of such offences respectively, 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 sec. 3, "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 seem meet." The shop must be a shop for the sale of goods, and a mere workshop will not be sufficient. Upon an indictment on the 7 & 8 Geo. 4, c. 29, s. 15, and 1 Vict. c. 90, for breaking into a shop and stealing coals, it appeared that the prosecutor sold coal, and was also a blacksmith: the place from which the coal was stolen was a shop, to which persons went who bought it, it being a room beyond the blacksmith's shop. Mr. B. Alderson said, "to come within the provisions of these acts the place must be more than a mere workshop, it must be a shop for the sale of articles. A workshop, such as a carpenter's shop or a blacksmith's shop, would not be within the acts." (b) (a) The 9 Geo. 4, c. 55, s. 15, relating to Ireland, contains similar provisions to those in the 7 & 8 Geo. 4, c. 29, s. 14 & 15, VOL. I. and is not altered by the 1 Vict. c. 90, s. 2. KKK Principals in the second degree and accessories. It has been held that an indictment upon sec. 15, of the 7 & 8 Geo. 4, c. 29, must expressly aver that the prisoner stole the goods in the shop, and that it is not sufficient to aver that the prisoner broke and entered the shop, and the goods "in the shop then and there being found feloniously did steal." (c) Principals in the second degree, and accessories before the fact, are punishable in the same manner as the principals in the first degree and accessories after the fact (except receivers) are liable to be imprisoned for any time not exceeding two years. (d) Vict. c. 90, but as it only applies to felonies punishable under the 7 & 8 Geo. 4, c. 29, it seems doubtful whether principals in the second degree and accessories are punishable under it; if not, they should seem to be punishable as for a felony, for which no express provision is made. See my note, ante, p. 116. As to the proceedings for the trial, &c., of accessories, see the 7 Geo. 4, c. 64, ss. 9, 10, 11, ante, p. 29, et seq. CHAPTER THE EIGHTH. OF ROBBERY FROM THE PERSON. ROBBERY from the person appears to be well defined as a felo- Definition of nious taking of money or goods of any value from the person of the offence. another, or in his presence, against his will, by violence, or putting him in fear." (a) 1 Vict. c. 87. Punishment of tended with robbery at The 1 Vict. c. 87, s. 2, repeals part (b) of the 7 & 8 Geo. 4, c. 29, and the 9 Geo. 4, c. 55, [relating to Ireland,] and enacts, that "whosoever shall rob any person, and at the time of or immediately before or immediately after such robbery shall stab, cut, or wound cutting or any person, shall be guilty of felony, and being convicted thereof wounding. shall suffer death." By sec. 3, "whosoever shall, being armed with any offensive weapon or instrument, rob or assault with intent to rob any person, or shall, together with one or more person or persons, rob or assault with intent to rob any person, or shall rob any person, and at the time of or immediately before or immediately after such robbery shall beat, strike, or use any other personal violence to any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." Punishment of robbery atviolence. tended with threat of By sec. 4," whosoever shall accuse or threaten to accuse any Punishment person of the abominable crime of buggery committed either with for obtaining mankind or with beast, or of any assault with intent to commit the property by said abominable crime, or of any attempt or endeavour to commit accusing of the said abominable crime, or of making or offering any solicitation, unnatural persuasion, promise, or threat to any person whereby to move or induce such person to commit or permit the said abominable crime, with a view or intent in any of the cases aforesaid to extort or gain from such person, and shall by intimidating such person by such accusation or threat extort or gain from such person any property, shall (a) 2 East, P. C. c. 16, s. 124, p. 707. Hickman's case, 1 Leach, 280. 4 Black. Com. 243. 1 Hawk. P. C. c. 34. 1 Hale, 532. 3 Inst. 68. The force necessary to constitute robbery must be employed before (or at the time) the property is stolen. If the stealing be first, and the force afterwards, the offence is not robbery, but stealing from the person. Per Park, J., Smith's case, 1 Lewin, 301. Sec post, p. 874. (b) The act repeals so much of those statutes as relates to any person who shall rob any person, steal from the person, assault with intent to rob, with menaces or by force demand any property with intent to steal, accuse, or threaten to accuse, of any infamous crime, plunder any wreck, and so much of the acts as relates to principals in the second degree, and accessories before and after the fact. ккк 2 crimes. |