Punishment of principal offenders. Principals in the second degree, and accessories. Trial of accessories. thought otherwise, but Hullock, B., thought that if a nolle prosequi were entered as to Moss for the burglary, judgment might be entered against all the three for the capital larceny. The seven judges thought that there might be cases in which upon a joint larceny by several, the offence of one might be aggravated by burglary in him alone, because he might have broken the house in the night in the absence and without the knowledge of the others in order to come afterwards and effect the larceny, and the others might have joined in the larceny without knowing of the previous breaking. (0) Burglary was at common law a felony within the benefit of clergy; (p) but a higher punishment was imposed by the provisions of several statutes now repealed. And the recent statute 7 & 8 Geo. 4. c. 29. s. 11. makes it a capital offence by enacting "that every person convicted of burglary shall suffer death as a "felon." (q) 66 With respect to accessories, that statute also enacts "that in "the case of every felony punishable under this act, every principal in the second degree, and every accessory before the fact "shall be punishable with death, or otherwise in the same manner "as the principal in the first degree is by this act punishable; "and every accessory after the fact to any felony punishable under "this act (except only a receiver of stolen property) shall on con"viction be liable to be imprisoned for any term not exceeding "two years." The trial of accessories is now regulated by the statute 7 Geo. 4. c. 64. ss. 9, 10, 11., by which an accessory before the fact may be tried as such for a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice. It provides also, that such accessories, and also accessories after the fact, may be tried by any court which has jurisdiction to try the principal felon, although the offence be committed on the seas, or abroad; and that if the offence be committed in different counties, the accessory may be tried in either. And it also enacts that the accessory may be prosecuted after a conviction of the principal, although the principal be not attainted. (r) (0) Rex v. Butterworth and others, Mich. T. 1823, MS. Bayley, J., and Russ. & Ry. 520. (p) 3 Inst. 63, 65. 4 Black. Com. 228. (a) See the stat. in the Addenda to this Volume. Benefit of clergy was abolished by 7 & 8 Geo. 4. c. 28. s. 6. See also the Addenda. (r) See this statute ss. 9, 10, and 11 in the Addenda to the first Volume. CHAPTER THE SECOND. OF SACRILEGE, or of BREAKING ANY CHURCH OR CHAPEL, AND Capital of THE statutes 23 Hen. 8. c. 1., and 1 Edw. 6. c. 12. which related A larceny, therefore, committed in a church or chapel, accompanied with a breaking of such church or chapel is still a capital offence, but the provisions of the 1 Edw. 6. c. 12. which made the felonious taking of any goods out of a church or chapel a capital offence, though there was no breaking, are not reenacted. The words "any chattel," would probably be deemed to extend to articles in a church or chapel though not used for divine service. The words "any goods "in the repealed statute 1 Edw. 6. c. 12. were held not to be confined to goods used for divine service, but to extend to articles used in the church to keep it in proper order and it was considered that such articles were under the protection of the statute, whilst the church was in a course of being repaired, if they had not been brought in merely for the purpose of such repairs. Whilst a church was being repaired, the prisoner stole from it a pot used to hold charcoal for airing the vaults, and a snatch-block used to raise weights if the bells wanted repair. These articles had been kept in the church for years, and were not brought in for the repairs which were then in progress. Upon a case reserved, the Judges (eleven of them being present) were unanimous that such goods were under the protection of the statute, and that a capital sentence ought to be passed upon the prisoner, as they thought that the violation of the sanctity of the place was what the statute was intended to prevent. (a) It has been holden that where the bells, books, or other goods Statement of belonging to a church are stolen, they may be laid in the in- property. dictment to be the goods of the parishioners. (b) And it is said, Principals in the second degree, and accessories. that he who takes away the goods of a chapel or abbey, in time of vacation, may be indicted, in the first case, for stealing bona capella, being in the custody of such and such; and in the second, for stealing bona domus vel ecclesiæ, &c. (c) Principals in the second degree, and accessories before the fact are punishable with death as the principals in the first degree, and accessories after the fact, (except receivers of stolen property) are liable to imprisonment for two years. (d) The proceedings for the trial of accessories are regulated by 7 G. 4. c. 64. s. 9, 10, 11. (e) (c) 1 Hale 512. 2 Hale 81. 1 Hawk. P. C. c. 33. s. 45. 2 East P. C. c. 16. s. 69. p. 651. (d) 7 & 8 G. 4. c. 29. s. 61. Addenda to this volume. (e) See Addenda to the first volume. CHAPTER THE THIRD. OF HOUSE-BREAKING. BESIDES the nocturnal house-breaking or burglary, which has been treated of in the first chapter of this book, the law of England, in its especial regard for the safety and security of the habitation of man, provided by several statutes, (a) that the forcible invasion of the dwelling-house of another, or house-breaking, when accompanied with felony, should be liable to capital punishment, though committed in the day-time. 4. c. 29. s. 12. The ancient statutes upon this subject have been repealed by 7 and 8 Geo. 7 and 8 Geo. 4. c. 27. But the 7 and 8 Geo. 4. c. 29. s. Î2. enacts Persons "that if any person shall break and enter any dwelling-house, and breaking and "steal therein any chattel, money, or valuable security, to "value whatever," every such offender being convicted thereof, honse and shall suffer death as a felon. any The same act, by s. 13. provides and enacts, that no building, although within the same curtilage with the dwelling-house, shall be deemed to be part of such dwelling-house for the purpose of burglary, or for any of the purposes aforesaid, unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and enclosed passage leading from the one to the other. entering a dwelling stealing, &c. death. shall suffer Does not extend to buildings within the curtilage. Principals in Principals in the second degree, and accessories before the fact, the second are punishable with death as the principals in the first degree; and degree and accessories after the fact (except receivers of stolen property) are accessories. liable to imprisonment for two years. (b) The proceedings for the trial, &c. of accessories, are regulated by 7 Geo. 4. c. 64. ss. 9, 10, 11. (c) By analogy to the cases decided upon the repealed statutes, (d) Breaking and it is conceived that such a breaking and entering as would, if entering. committed in the night, constitute a burglary, will be necessary, in order to bring a case within this 12th section of the 7 and 8 Geo. 4. c. 29. And by the express words of the statute, the breaking and entering must be attended with some larceny, so that although a house be broken and entered in the day-time with a felonious (a) 1 Edw. 6. c. 12. s. 10. 5 and 6 Edw. 6. c. 9. 39 Eliz. c. 15. 3 W. & M. c. 9. (b) 7 and 8 Geo. 4, c. 29. s. 61. Addenda to this volume. (c) See Addenda to the first volume. (d) 1 Hale 522, 523, 526, 548. 2 Hale 352, 353. 1 Hawk. P. C. c. 34. ss. 2, 3. 2 Hawk. P. C. c. 33. s. 88, 92. Fost. 108. 2 East. P. C. c. 16. s. 68. p. 631. s. 72. p. 636. s. 75. p. 638. Dwellinghouse. intent, it will not be an offence within the statute if nothing be taken. It seems also that questions which may arise upon this statute as to which shall be deemed a dwelling-house, must be governed by the same rules as apply to similar questions in cases of burglary, keeping in mind the enactment before mentioned as to buildings within the curtilage. A chamber in one of the inns of court was held to be a dwelling-house within the repealed statute 39 Eliz. c. 15. (e) (e) Rex v. Evans and Fynche, Cro. Car. 473. |