CHAPTER THE FOURTH. OF STEALING IN A DWELLING-HOUSE, ANY PERSON THEREIN BEING & M. c. THIS was a capital offence by the repealed statute 3 W. The thirteenth section of the act prevents any building, although within the same curtilage, from being deemed part of the dwelling-house, unless there be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage leading from the one to the other. And the observations in the preceding chapter, upon questions which may arise as to what shall be deemed a dwelling-house, will apply to the offence now under consideration. It is clear that no breaking of the house is necessary to constitute this offence and it should seem that property might be considered as stolen in the dwelling-house within the meaning of the statute, if a delivery of it out of the house should be obtained by threats, or an assault upon the house by which some person therein should be put in fear. (c) But questions of difficulty may perhaps arise as to the degree of fear which must be excited by the thief. 7 & 8 G. 4. c. 29. s. 12. The repealed statute 3 W. & M. c. 9. enacted that every per- The putting in son who should feloniously take away any goods or chattel being fear. in any dwelling-house, the owner or any other person being therein and put in fear, should not have the benefit of clergy. It does not appear to have been expressly decided upon that statute whether or not it was necessary to prove the actual sensation of fear felt by some person in the house, or whether fear was to be implied, if some person in the house were conscious of the fact at the time of the robbery. But it was suggested as the better opinion, and was said to have been the practice, that proof should be given of an actual fear excited by the fact when committed out of the presence of the party, so as not to amount to a robbery at (a) Repealed by 7 & 8 G. 4. c. 27. (b) See the section of the statute in the Addenda. VOL. II. E (c) See Burglary, ante, 8. and 2 East. P. C. c. 16, s. 55. p. 623. Indictment. Principals in the second de gree and accessories. common law. (d) And it was observed that where the fact was committed in the presence of the party, possibly it would depend upon the particular circumstances of the transaction, whether fear would or would not be implied: but that clearly if it should appear that the party in whose presence the property was taken was not conscious of the fact at the time, the case was not within that statute. (e) It was decided upon the same repealed statute that the indictment must expressly allege that some person in the house was put in fear by the prisoner. The form was (after stating a stealing of goods in the dwelling-house of one J. G.,)" he the said J. G., "and one M. E., and one M. G., the wife of the said J. G., then "being in the said dwelling-house, and being put in fear there"in ;" and, on the first consideration of the case, most of the Judges, to whom it was referred, inclined to think that the indictment was good, in pursuing the words of the statute; but they ultimately agreed that the prisoners were entitled to their clergy for the defect in the indictment, in not stating that the persons in the house were put in fear by the prisoners. (ƒ) But in this case the Judges held, that the prisoners were properly convicted of the larceny; and they accordingly received sentence of transportation. (g) The enactments respecting principals in the second degree and accessories mentioned in the preceding chapter apply also to the present offence. CHAPTER THE FIFTH. of stealing in a dwelLING-HOUSE TO THE VALUE OF 51. OR MORE. THE statute 7 & 8 G. 4. c. 29. s. 12. enacts "that if any person 7 & 8 G. 4. c, "shall steal in any dwelling-house any chattel, money, or valua- 29. s. 12. "ble security to the value in the whole of five pounds or more, every such offender being convicted thereof shall suffer death as "a felon." According to the construction put upon the repealed statute 12 DwellingAnn. c. 7. (which related to a stealing of this kind to the value of house. forty shillings) the dwelling-house must be one in which burglary might be committed. (a) But with respect to buildings within the curtilage, the thirteenth section of the 7 & 8 G. 4. enacts, that no building, although within the same curtilage with the dwellinghouse and occupied therewith, shall be deemed to be part of such dwelling-house, for the purposes 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 inclosed passage leading from the one to the other. The repealed statute of 12 Ann. 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 possibly it will be construed upon the same principle, and be considered as intended to give greater sccurity only to property deposited in a house, so as to be under the protection of the house, and not to property about the person of the party from whom it is stolen. It may be useful, therefore, to notice some of the cases decided upon the repealed statute. It 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. (b) And, upon the same principle, where it appeared (a) 2 East. P. C. c. 16. s. 81. p. 644. Davies's alius Silk's case, ante, 17; and other cases cited in the Chapter on Burglary, ante, 12, et sequ. Construction of the repealed statute 12 Ann. c. 7. Property under the proLouse. tection of the that the prisoner was a married woman and had stolen the property 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. (c) 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 Wakefield'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. Upon a case reserved seven Judges against three held the conviction right. (d) 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. Two boxes 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 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. (e) In a case upon the same statute where the indictment was for stealing a bank-note of the value of 257., 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 1 (c) Gould's case, O. B. 1780. 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. (d) Rex v. Taylor, East. T. 1820. MS. Bayley, J., and Russ. & Ry. 418. (e) Rex v. Carroll, East. T. 1825. Ry. & Mood. C. C. 89. 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. (e) 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 to 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. A 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. (ƒ) Stealing to the amount men tioned in the statute at one 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- time. 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. (g) 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. (h) As in cases of burglary, so in indictments for this offence, the (e) Campbell's case, O. B. Jan. 1792. 2 Leach 564. 2 East. P. C. c. 16. s. 82. p. 644, 645. (f) Owen's case, O. B. 1792. 1 Hawk. P. C. c. 36. Of Larceny from the Dwelling-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. (h) Hamilton's case, 1 Leach 348. |