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dwelling

in bar au ac

The indictment charged the prisoners with burglariously break- breaking and ing and entering the dwelling-house of Merial Nevill and Ann entering a Nevill, with intent to steal their goods; and they pleaded a plea house with inof autrefois acquit upon a former indictment, which indictment eat to steal, charged them with burglariously breaking and entering the dwell- cannot plead ing-house of Merial Nevill and Ann Nevill, and stealing goods of quittal upon Merial Nevill, goods of Ann Nevill, and goods of one Susanna an indictment Gibbs. The plea concluded with averring the identity of the per- burglary sons of the prisoners, and that the burglary was the same identical which charged and individual burglary. To this plea there was a demurrer, which a breaking and was argued before all the Judges of England; and their opinion same dwellingwas afterwards delivered by Mr. Justice Buller at the Gld Bailey house and June Session 1796.

The learned judge said that it had been contended on behalf of the prisoners, that as the dwelling-house in which, and the time when, the burglary was charged to have been committed were precisely the same both in the indictment for the burglary and stealing the goods, on which they were acquitted, and in the indictment for the burglary with intent to steal the goods, which was then depending, the offence charged in both was, in contemplation of law, the same offence, and that of course the acquittal on the former indictment was a bar to all further proceeding on the latter. He then proceeded, "It is quite clear, that at the time "the felony was committed, there was only one act done, namely, "the breaking the dwelling-house. But this fact alone will not "decide this case; for burglary is of two sorts; first, breaking "and entering a dwelling-house in the night time, and stealing goods therein; secondly, breaking and entering a dwelling"house in the night time, with intent to commit a felony, al"though the meditated felony be not in fact committed. The "circumstance of breaking and entering the house is common and "essential to both the species of this offence: but it does not of "itself constitute the crime in either of them; for it is necessary, "to the completion of burglary, that there should not only be a "breaking and entering, but the breaking and entering must be "accompanied with a felony actually committed, or intended to "be committed; and these two offences are so distinct in their nature, that evidence of one of them will not support an indict"ment for the other. (u) In the present case, therefore, evidence

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(u) It is well established that an indictment for breaking and entering, &c. and stealing goods, will not be supported by evidence of a breaking and entering, &c. with intent to steal them. But it has been supposed, that an indictment for breaking and entering, &c. with intent to steal, will be supported by evidence of breaking and entering, &c. and an actual stealing. Ante, 35, 38. If this be so, the report of the judgment delivered by Mr. J. Buller, as here given, states the point too largely; as it seems to go to the extent of saying that evidence of a breaking and entering, and

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for the same

entering the

stealing there.

"of the breaking and entering with intent to steal, was rightly "held not to be sufficient to support the indictment charging the "prisoner with having broke and entered the house, and stolen "the goods stated in the first indictment; and if crimes are so "distinct, that evidence of the one will not support the other, it "is as inconsistent with reason, as it is repugnant to the rules of "law, to say that they are so far the same that an acquittal of the "one shall be a bar to a prosecution for the other."

The learned judge then observed, upon the cases which had been cited on behalf of the prisoners, in support of the proposition contended for by their counsel; namely, Turner's case, (x) and the case of Jones and Beaver. (y) In Turner's case it was agreed that the prisoner having been formerly indicted for burglary, in breaking the house of a Mr. Tryon, and stealing his goods, and acquitted, could not be indicted again for the same burglary, in breaking his house, and stealing therein the money of one Hill, (a servant of Mr. Tryon) but that he might be indicted for felony in stealing the money of Hill. Upon this case Mr. J. Buller observed: "The decision was not a solemn judg

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ment, for the prisoner was not indicted a second time for the "burglary; it was merely a direction from the Judges to the "officer of the court how to draw the second indictment for the "larceny; and it proceeded upon a mistake, as I shall presently "shew. If the Judges in that case exercised a little lenity before "the indictment, which might more properly have been done "after conviction, much censure could not fall on them. But "they proceeded on the ground that Turner, having been in"dicted for burglary in breaking the house of Mr. Tryon, and stealing his goods, and acquitted thereof, could not be again "indicted for the same burglary for breaking the house, though "he might be indicted for stealing the money of Hill, for which "he had not been indicted before: and he was indicted accord"ingly. The Judges, therefore, must have conceived that the "breaking the house and the stealing the goods were two distinct "offences; and that breaking the house only constituted the "crime of burglary; which is a manifest mistake: for the bur"glary consisted in breaking the house and stealing the goods; "and if stealing the goods of Hill was a distinct felony from that "of stealing the goods of Tryon, which it was admitted to be, "the burglaries could not be the same."

With respect to the case of Jones and Beaver, the learned Judge said, that it proceeded entirely upon the decision in Turner's case; and that, the foundation failing, the superstructure could not stand. (≈)

"the breaking, &c. to be with intent "to steal, is said to be supported by "proof of actual stealing; though certainly not vice versa.'

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(x) Kel. 30.

(y) Kel. 52.

(z) Rex v. Jones and Beaver, Kel. 50. The prisoners were indicted for burglariously breaking and entering the dwelling-house of Lord Cornbury,

and stealing his goods therein; and, being acquitted, were afterwards indicted for the same burglary, in breaking and entering Lord Cornbury's house, and stealing the goods of a Mr. Nunessey: and it was agreed that, as they had been before acquitted, they could not be indicted again for the same burglary, but that they might be indicted for the felony

The learned judge then referred to several authorities, (a) and continued, "These cases establish the principle, that unless the "first indictment were such as the prisoner might have been con"victed upon by proof of the facts contained in the second in"dictment, an acquittal on the first indictment can be no bar to "the second. Now, to apply the principle to the present case: "the first indictment was for burglariously breaking and enter❝ing the house of Miss Nevills, and stealing the goods men❝tioned; but it appeared that the prisoner broke and entered the "house with intent to steal; for, in fact, no larceny was com"mitted, and therefore they could not be convicted on that in"dictment. But they have not been tried for burglariously "breaking and entering the house of the Miss Nevills with intent "to steal, which is the charge in the present indictment, and "therefore their lives have never been in jeopardy for this of"fence. For this reason, the Judges are all of opinion that the "plea is bad; that there must be judgment for the prosecutor upon the demurrer; and that the prisoners must take their "trials on the present indictment." And the prisoners were accordingly tried, and convicted. (b)

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Though it is not professed in this treatise to enter minutely into the points decided upon the pleadings in criminal cases, it may be here mentioned, with reference to the important plea of autrefois acquit, that, in a late case, the doctrine was recognized that such plea is no bar unless the facts charged in the second indictment would have warranted a conviction upon the first. So that if the offence charged in the second indictment is in one king's reign, and the first indictment was confined by the contra pacem to the preceding reign, an acquittal upon the first could not be pleaded in bar to the second. To an indictment for keeping a gaming house in the time of Geo. 4th, the defendant pleaded that at a sessions in 4 Geo. 4. he was indicted for that he, on the 18th January, 57 Geo. 3. and on divers other days between that day and the taking of that inquisition, kept a gaming house against the peace of our said lord the king, that he was tried and acquitted, and that the offence on both indictments was the same. To this there was a demurrer, and it was urged that the contra pacem in the first indictment tied up the prosecutor to the proof of an offence in the time of Geo. the third, for Geo. the third being the only king named in that indictment, "our said lord the king' in that indictment must have referred to him, and then the defendant could not have been punished in that indictment for keeping the house in the time of King Geo. the 4th. And the demurrer was held good. (c)

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dicted for

In the preceding case of Rex v. Vandercomb the property in the A party ingoods was laid differently in the two indictments. The first, upon burglary, and which the prisoners had been acquitted, stated some of the goods stealing the stolen to belong to Merial Nevill, others to Ann Nevill, and others goods of a

in stealing the goods of Mr. Nunessey, precisely as had before been done in Turner's case.

(a) 2 Hawk. P. C. c. 35. s. 3. Fost. 361, 362. Rex v. Pedley, 1 Leach.

242.

(b) Rex v.Vandercomb and Abbott, 1796, 2 Leach. 716. 2 East. P. C. c. 15. s. 29. p. 519.

(c) Rex v. Taylor, 3 B. & C. 502.

son, and ac

quitted, may afterwards be indicted for

the same bur glary, and stealing the goods of a different person.

particular per- to Susanna Gibbs; and the second indictment stated the goods. intended to be stolen to belong to Merial and Ann Nevill only. And it is said that Buller, J., in delivering the opinion of the Judges on the case, observed, that the property in the goods was differently described in the two indictments, and said, that this might afford another objection to the plea; but that he had not entered into the consideration of the circumstance, as the case did not require it. (d) And the ancient doctrine, that a person indicted and acquitted for breaking and entering a dwelling-house in the night, and there stealing the goods of one person, could not be afterwards indicted for the same breaking and entering, and stealing the goods of another person, appears to have been overruled in this case, when the authorities by which it was supposed to have been established were denied to be law. (e) It may mentioned also that the statute 7 & 8 Geo. 4. c. 28. s. 3. enacts that no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment.

7 & 8 G. 4. 28. s. 3.

If a prisoner be charged with a burglary and stealing the goods, the prosecutor, on failing to prove that these facts

were com

mitted on the

c.

day laid in the indictment, cannot be admitted to prove that

the larceny was committed on a former day.

Verdict.

be

Where, upon an indictment for a burglary and stealing goods, the prosecutor failed to prove any nocturnal breaking, or any larceny, subsequent to the time when the prisoners entered the house, which must have been after three o'clock in the afternoon of the day on which the offence was charged to have been committed; it was proposed to give evidence of a larceny by the prisoners, of some of the articles mentioned in the indictment, though committed before three o'clock on the day on which they were charged to have entered the house; but the court refused to receive the evidence. They said, that the charge contained in the indictment of burglariously breaking and entering the house, and stealing the goods, might unquestionably be modified, by shewing that the prisoners stole the goods without breaking open the house; but that the charge proposed to be introduced went to connect the prisoners with an antecedent felony committed before three o'clock on the day mentioned, at which time it was clear that they had not entered the house; that the transactions were distinct; and that it might as well be proposed to prove any felony which those prisoners might have committed in that house seven years before. (ƒ)

Where a larceny, whether within or ousted of clergy, was charged in the same indictment with a burglary, it was holden that the prisoner might be found not guilty of the burglary, and convicted of the larceny. (g) Thus, where the prisoners were acquitted of the burglary, upon an indictment for a burglary and larceny, and found guilty of stealing in the dwelling-house to the amount of forty shillings, it was holden that they were excluded from their clergy, though there was no separate and distinct count in the indictment on the statute 12 Ann. c. 7.: (h) and the

(d) 2 East. P. C. c. 15. s. 29. p. 519. note (b).

(e) Viz. Turner's case, and the case of Jones and Beaver, ante, 40.

(f) Rex v: Vandercomb and Abbott, 2 Leach. 708.

(g) Ante, 38.

(h) Now repealed by 7 & 8 G. 4. c.

Judges were of opinion that the indictment contained every charge that was necessary in an indictment upon that statute. (i)

In this case the finding of the jury was, "not guilty of breaking Not guilty of " and entering the dwelling-house in the night, but guilty of steal- the burglary but guilty of "ing the box and money in the dwelling-house :" (j) upon which, stealing above part of the objection, on behalf of the prisoners, was, that they the value of were not excluded from clergy, because the jury had acquitted 40 shillings in the dwelling them of the burglary. (k) And formerly it appears to have been house. doubted, whether, where the words "not guilty of the burglary" were a part of the finding of the jury, the prisoner was not by necessary consequence acquitted of the felony also. (1) But in a more recent case, where the indictment was for a burglary and larceny, and the verdict was "not guilty of the burglary, but guilty of stealing "above the value of forty shillings in the dwelling-house ;" and the entry by the officer was in the same words; the Judges, after some debate, and after adjourning the case to a subsequent term, held the finding sufficient to warrant a capital judgment. They agreed, that if the officer were to draw up the verdiet in form, he must do it according to the plain sense and meaning of the jury; and that the minute was only for his future direction. (m)

persons are

the others

only larceny.

It has been supposed, that upon an indictment against several Where several persons for a burglary and larceny, the jury could not find one indicted togeguilty of the burglary and another guilty of the larceny only, upon ther, for burthe same indictment, and the same evidence; as such a finding glary and larceny, the would shew that the offences of the several prisoners were of a offence of distinct nature, and therefore ought not to have been included in some may be the same indictment. (n) But by the opinion of a majority of the burglary, of Judges in a late case, it appears that upon an indictment for burglary and larceny against two, one may be found guilty of the burglary and larceny, and the other of the larceny only. Upon an indictment against Moss and two others for burglary and stealing in the dwelling-house to the value of forty shillings, Moss pleaded guilty to the whole, and the other two were found guilty of stealing in the dwelling-house to the amount of forty shillings, but acquitted of the burglary. A case was saved upon the question how the judgment should be entered, and seven of the judges thought that it might be entered against all the three prisoners; against Moss for the burglary and capital larceny, and against the other two for the capital larceny: Burrough, J., and Hallock, B.,

(Rex v. Withal and Overend, Guildford Ass. 1772, Hil. T. 1774. i Leach 88.

(j) In the indictment the box was described as containing sixty pounds of money.

(k) Rex v. Withal and Overend, 1 Leach 88. 2 East. P. C. c. 15. s. 28. p. 517.

(7) Comer's case, 1744, 1 Leach 36. 2 East. P. C. c. 15. s. 28. p. 516.

(m) Hungerford's case, Bristol, 1790, East, and Trin. T. 1790, 2 East. P. C. c. 15. s. 28. p. 518. Many of the judges thought that an entry, "not guilty of the breaking and entering in the

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