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penalty is by this act imposed, shall offend a second time, by committing any of the offences herein-before last enumerated, such second offence, whether it be of the same description as the first offence or not, shall be deemed felony, and such offender, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny.”
In an indictment under the latter part of this section for a second offence, the previous conviction must be correctly set out, otherwise the prisoner cannot be convicted upon such indictment. · See Allen's case, R. and R. 513 (a). Where on an indictment under the above section for killing a deer after a previous conviction under the 28th section of the same statute, (see infra) the conviction did not substantively state where the first offence was committed, but in awarding the distribution of the penalty gave it to the overseers of D. in the said county “where the offence was committed ;" such conviction was held good. Per Park, J., 5 C. and P., Weale's case, 135 (6).
By s. 27 of the above statute, suspected persons found in possession of venison, &c., and not satisfactorily accounting for the same, are rendered liable to a penalty not exceeding 201.
*By s. 28, persons setting snares or engines for the purpose of [ *382 ) taking or killing deer, or destroying the fence of land where deer shall be kept, on conviction before a justice shall forfeit a sum not exceeding 201.
Power of deer-keepers, &c. to seize guns, &c.] By s. 29 of the above statute, if any person shall enter into any forest, chace, or purlieu, whether inclosed or not, or into any inclosed land where deer shall be usually kept, with intent unlawfully to hunt, course, wound, kill, snare, or care ry away any deer, it shall be lawful for every person intrusted with the care of such deer, and for any of his assistants, whether in his presence or not, to demand from every such offender any gun, fire arms, snare, or engine in his possession, and any dog there brought for hunting, coursing, or killing deer; and in case such offender shall not immediately deliver up the same, to seize and take the same from him in any of those respective places, or, upon pursuit made, in any other place to which he may have escaped therefrom, for the use of the owner of the deer.
Assaulting deer-keepers or their assistants. By the same section, if any such offender (vide supra) shall unlawfully beat or wound any person intrusted with the care of the deer, or any of his assistants, in the execution of any of the powers given by this act, every such offender shall be guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny.
DISTURBING PUBLIC WORSHIP.
By the 52 Geo. 3, c. 155, s. 12, "if any person or persons, at any time after the passing of this act, do and shall wilfully and maliciously or con
temptuously disquiet or disturb any meeting, assembly, or congregation
Upon an indictment found at the sessions under the Toleration Act, 1 W. and M. c. 18, for disturbing a dissenting congregation, it was held that, upon conviction each defendant was liable to the penalty of 201. imposed by that statute, Hube's case, 5 T. R. 542.
This offence may be tried at the sessions, 52 Geo. 3, c. 155, s. 12, supra, or in the King's Bench, or at the assizes, if removed by certiorari from the sessions, Hube's case, supra ; Wadley's case, 4 M. & S. 508.
DWELLING HOUSE ;
OFFENCES RELATING TO.
383 Proof of the value of the goods stolen 387 Statutes 7 & 8 Geo. 4, c. 29, and 7
Proof of the stealing being in a dwell-
387 Proof of the breaking and entering 384 Consequences of verdict against one Proof of the premises being a dwell
of several, as to part of the offence 389
389 Proof of the larceny
385 | Stealing in a dwelling-house, any person Stealing in a dwelling-house to the
being put in bodily fear
389 amount of 51.
Statute 7 Wm. 4 and 1 Vict. c. 86 389
Proof that some person was put in
Statutes 7 & 8 Geo. 4, c. 29, and 7 Wm. 4 & 1 Vict. c. 90.] The offence of house-breaking or stealing in a dwelling-house, was provided against by several statutes, which were repealed by the 7 & 8 Geo. 4, c. 27.
By the 7 & 8 Geo. 4, c. 29, s. 12, it is enacted, that if any person shall break and enter any dwelling-house, and steal therein any chattel, money, or valuable security, to any value whatever, every such offender, being convicted thereof, [shall suffer death as a felon.] [ *384 ) *By the 3 & 4 Wm. 4, c. 44, the punishment of death was
repealed, and offenders, whether principals or accessaries before the fact, might be transported for life, or for not less than seven years, and previously to transportation, were liable to be imprisoned with or without hard labor, or to be confined in the penitentiary, for not exceeding four years, or were liable to be imprisoned with or without hard labor, for not exceeding four years, nor less than one year.
Now by the 7 Wm. 4 and 1 Vict. c. 90, s. 1, entitled "an act to amend the law relative to offences punishable by transportation for life," so much of the 3 & 4 Wm. 4, c. 44, as relates to the punishment of any person convicted of the offence of breaking and entering any dwelling-house, and stealing therein, as in that act mentioned, is repealed; and from and after the commencement of the act, every person convicted of any such offence 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.
By. s. 3, it is enacted, “ that 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 labor 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 labor, 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.”
Principals in the second degree, and accessaries before the fact, are comprehended in the above act, and subjected to the same punishment as principals in the first degree. Accessaries after the fact seem still punishable (but see post, p. 391,) with two years' imprisonment, under the 7 & 8 Geo. 4, c. 29, s. 61, ante, p. 206; and by the 4th section of the same act, the court may award hard labor and solitary confinement, but such solitary confinement by the 7 Wm. 4 and 1 Vict. c. 90, s. 5, is not to exceed one month at a time, or more than three months in any one year; see ante, p. 333.
The 13th section of the 7 & 8 Geo. 4, c. 29, with regard to what shall be considered part of the dwelling-house in burglary, and which has been already given, ante, p. 326, applies likewise to this offence.
The offence of house-breaking differs from that of burglary, in requiring that an actual larceny should be committed in the house, a mere intent to commit felony not being sufficient, and also in not requiring that the offence shall be committed in the night.
The prosecution to support an indictment for house-breaking must prove, 1, the breaking and entering ; 2, that it is a dwelling-house ; 3, the larceny.
Proof of the breaking and entering.] It is sufficient to prove such a breaking and entering, as, if done in the night, would have constituted burglary. i Hale, 522, 526, 548. Foster, 108; 2 East, P. C. 638; 2 Russell, 47.
*If it should be proved to have been done in the night, so as [ *385 ] to amount to burglary, it would seem that the party may, notwithstanding, be convicted of house-breaking. See Pearce's case, R. and R. 174 (a) ; Robinson's case, Id. 321 ; but see Tandy's case, 1 C. and P. 297 (6).
(a) 1 Eng. C. C. 174. (6) Eng. Com. L. Rep. xi. 398.
Where the sash of a window was partly open, but not so much so as to admit the body of a person, and the prisoner raised it so as to admit a person, upon an indictment for house-breaking, this was held not to amount to a breaking. Henry Smith's case, 1 Moody, C. C. 178 (a), ante, p. 304. See also Robinson's case, Id. 327 (b); ante, p. 304. Where the entry was effected through a hole, which had been left in the roof, for the purpose of light, Bosanquet, J., held, that it was not sufficient to constitute a breaking of the house. Sprigg's case, 1 Moody and Rob. 357, ante, p. 305.
Proof of the premises being a dwelling-house.) Whatever building is, in contemplation of law, a dwelling-house, in which burglary may be committed, is a dwelling-house also, so far as respects the offence of house-breaking. 2 Russell, 48. A chamber in an inn of court, was held to be a dwelling-house within the repealed statute 39 Eliz. c. 15. Evans's case, Cro. Car. 473.
With regard to out-buildings, the repealed statute above-mentioned contained the words " dwelling-house or houses, or any part thereof, or any out-house or out-houses belonging and used to and with any dwellinghouse.” The auxiliary statute 3 & 4 W. & M. c. 9, varied the words, using " dwelling-house, shop, or warehouse thereunto belonging, or therewith used.” Both these statutes are now repealed, and the 7 and 8 Geo. 4, c. 29, uses only the term “ dwelling-house.”
dwelling-house.” Such buildings, therefore, as, at common law, were considered part of the dwelling-house, (as to which, vide ante, p. 311,) come within the protection of the statute, and buildings situated within the curtilage, must appear to be within the provisions of 7 and 8 Geo. 4, c. 29, s. 13, ante, p. 326.
Proof of the larceny.] The larceny must be proved, as in other cases, with this addition, that it must be shown to have taken place in the house. The least removal of the goods from the place where the offender found them, though they be not carried off out of the house, is within the act, as in other larcenies, for the statute does not create a new felony, but only alters the punishment of a particular species of larceny. Simpson's case, 1 Hale, P. C. 527; Kel. 31, 2 East, P. C. 639. See Amicr's case, 6 C. and P. 344 (c).
STEALING IN A DWELLING-HOUSE TO THE AMOUNT OF FIVE POUNDS.
Statutes 7 & 8 Geo. 4, c. 29, and 7 Wm. 4 and 1 Vict. c. 90.) This offence, so far as it extended to the sum of 40s., was provided against by [ *386 ] the statute 12 Anne, c. 7, (now repealed). The sum *being raised to 5l., the offence was made a capital felony by 7 & 8 Geo. 4, Ć. 29.
By the 12th section of that statute, it is enacted, that if any person shall steal in any dwelling-house any chattel, money, or valuable security, to the value in the whole of 51., or more, every such offender, being convicted thereof, [shall suffer death as a felon.]
By the 2 & 3 Wm. 4, c. 62, the capital punishment was repealed, and
(a) 2 Eng. C. C. 178. () 1 Ibid. 327. (©) Eng. Com. L. Rep. xxv. 431.
transportation for life substituted ; and by the 3 & 4 Wm. 4, c. 44, s. 3, the offender might be imprisoned and kept to hard labor, or confined in the Penitentiary before transportation ; ante, p. 384.
Now by the 7 Wm. 4 and i Vict. c. 90, s. 1, so much of the two lastmentioned acts as relates to the punishment of persons convicted of offences, for which they are liable under the 2 and 3 Wm. 4, c. 62, to be transported for life, and so much of the 3 and 4 Win. 4, c. 44, as relates to the punishment of any person convicted of the offence of breaking and entering any dwelling-house, and stealing therein, as in that act mentioned is repealed, and it is enacted, that 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.
For s. 3 of the above act, authorising the court, in cases of imprisonment, to award hard labor and solitary confinement, see ante, p. 384.
Principals in the second degree, and accessaries before the fact, áre subject to the same punishment under the last-mentioned statute, as principals in the first degree. Accessaries after the fact, scem still punishable, (but see post, p. 391,) under 7 and 8 Geo. 4, c. 29, ss. 4 and 61, and the 7 Wm. 4 and 1 Vict. c. 90, s. 5, see ante, p. 333.
To support an indictment for this offence, the prosecutor must prove1, the stealing ; 2, that the goods, &c. stolen, were of the value of 5l. or more ; and 3, that they were stolen in a dwelling-house.
Proof of the stealing of the goods—what goods.] It is not all goods of the value of 5l. or more, which may happen to be within the house, the stealing of which will come within the statute. A distinction is taken between goods which are, as it has been termed, under the protection of the house, and those which are not. Therefore, where goods are feloniously obtained from the person, they are not considered to be goods within the protection of the house, as where the occupier of the house gave a bank note to the prisoner to get changed, who thereupon stole it, the judges, upon a case reserved, were of opinion, that this was not a capital offence within the 12 Anne, c. 7. Campbell's case, 2 Leach, 564, 2 East, P. C. 644. So where the prisoner obtained a sum of money from the prosecutor, in the dwelling-house of the latter, by ring-dropping, this also was held not to be within the statute. The judges were of opinion, that to bring a case within the statute, the property must be under the protection of the house, deposited there for safe custody, as the furniture, money, plate, &c. kept in the house, and not things immediately *un-( *387 ] der the eye or personal care of some one who happens to be in the house. Owen's case, 2 East, P. C. 645, 2 Leach, 572. The same point was ruled in subsequent cases. Castledine's case, Watson's case, Id. 674.
For the cases where goods have been held to be within the protection of the house, see post, p. 388.
Proof of the value of the goods stolen.] It must appear not only that the goods stolen were of the value of 51., but likewise that goods to that value were stolen upon one occasion, for a number of distinct larcenies cannot be added together to constitute a compound statutable larceny. Where it appeared that the prisoner had purloined his master's property to