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son with intent to rob, shall be guilty of felony, and being convicted thereof, shall (save and except in the cases where a greater punishment is pro vided by this act, see ante, p. 826) be liable to be imprisoned for any term not exceeding three years.'
Upon an indictment for an assault with intent to rob, the prosecutor must prove, 1, the assault; and 2, the intent of the prisoner to commit a robbery.
Proof of the assault.] The assault will be proved in the same manner as the assault in robbery, only that the completion of the offence, in taking the prosecutor's property from his person or in his presence will be wanting. A question has been raised upon the repealed statutes, whether or not there must be an actual assault upon the same person whom it is the offender's intention to rob. In the construction of the 7 Geo. 2, c. 21, it was decided that the assault must be upon the person intended to be robbed. The prosecutor was riding in a post-chaise, when it was stopped by the prisoner, who, extending his arm towards the post-boy, presented a pistol, swore many bitter oaths with great violence, but did not make any demand of money. He immediately stopped the chaise, when the prisoner turned towards it, but perceiving some one coming up, rode off without speaking. Upon an indictment for assaulting the prosecutor with intent to rob him, Ashurst, J., told the jury that the evidence was not sufficient, that the charge was, not for an assault with intent to rob the postillion, but with an intent to rob the prosecutor in the chaise, and that no such intent appeared. Thomas's case, 1 Leach, 330, 1 East, P. C. 417.
*Proof of the intent to rob.] The intent to rob will be gath- [*850] ered from the general conduct of the prisoner at the time. Menaces, threats, violence, and in short whatever conduct, which, if it had been followed by a taking of property, would have constituted robbery, will in this case be evidence of an intent to rob. The prisoners rushed out of the hedge upon the prosecutor, who was the driver of a return chaisc, as he was passing along the road, and one of them, presenting a pistol, bade him stop, which the boy did, but called out for assistance to some persons whom he had met just before. On this one of the prisoners threatened to blow his brains out if he called out any more, which the prosecutor nevertheless continued to do, and, obtaining assistance, took the men, who had made no demand of money. They were convicted of an assault with intent to rob, and transported. Trusty's case, 1 East, P. C. 418. It appears from one case to have been thought that in order to substantiate the fact of the intent to rob, a demand of property was necessary to be proved. Parfait's case, I East, P. C. 416. It seems, however, that this decision was founded upon an erroneous view of the then statute, two of the clauses, that respecting assaults to rob, and that respecting demanding money, by threats and menaces, being read as one enactment. 1 East, P. C. 417. Thomas's case, Id. and Trusty's case, Id. 418, also tend to show that the resolution of the court in Parfait's case is erroneous, see also Sharwin's case, 1 East, P. C. 421. The words of the 7 and 8 Geo. 4, c. 20, s. 6, seem to have left no doubt upon the question, the words "with intent to rob" following immediately after the description of the offence by assaulting, and not being deferred, as in the
7 Geo. 2, c. 21, until after the description of the offence of demanding with menaces; and by the recent statute the two offences are kept distinct, being contained in separate clauses of the act.
Should the proof fail as to the intent to rob, the prisoner may be convicted of an assault under the 7 Wm. 4 and 1 Vict. c. 85, s. 11, ante, p. 264, and see Ellis's case, ante, p. 827.
Statute 7 and 8 Geo. 4, c. 29.] The st. 23 Hen. 8, c. 1, and 1 Ed. 6, c. 12, which related to the offence of sacrilege, or breaking and stealing in a church, were repealed by the 7 and 8 Geo. 4, c. 27.
By 7 and 8 Geo. 4, c. 29, s. 10, "if any person shall break and [*851] *enter any church or chapel, and steal therein any chattel, or having stolen any chattel in any church or chapel, shall break out of the same, every such offender, being convicted thereof, [shall suffer death as a felon.]"
Now by the 5 and 6 Wm. 4, c. 81, so much of the above section as inflicted the punishment of death, is repealed, and every person convicted of any of the offences therein specified, or of aiding, or abetting, counselling or procuring the commission thereof, shall be liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labor, in the common gaol or house of correction, for any term not exceeding four years.
Upon a prosecution under the 7 and 8 Geo. 4, c. 29, s. 10, the prosecutor must prove, 1, the breaking and entering; 2, that the building broken was a church or chapel within the statute; and 3, the stealing of goods in the church or chapel.
Such a breaking and entering, as would constitute a burglary, (see ante, p. 302, 308,) will be a breaking and entering within this statute; but it need not be in the night-time. It should be observed, that a breaking and entering, merely with intent to steal, is not made an offence by the statute.
Should the proof fail as to breaking and entering, the prisoner may be convicted of simple larceny. See Nixon's case, post.
Proof that the building is a church or chapel.] It must appear that the building, in which the offence was committed, was a church or chapel. Where the goods stolen had been deposited in the church-tower, which had a separate roof, but no outer door, the only way of going to it being through the body of the church, from which the tower was not separated by a door or partition of any kind; Park, J. was of opinion that this
tower was to be taken as part of the church. Wheeler's case, 3 C. and P. 585 (a).
This statute does not include the chapels of dissenters, Richardson's case, 6 C. and P. 335 (b); and the practice is to indict, in such instances, for the larceny. Hutchinson's case, Russ. and Ry. 412 (c). So Patteson, J., held, that a Wesleyan chapel is not within the statute; but one of the prisoners was convicted of a simple larceny. Nixon's case 7 C. and P. 442 (d).
Where such chapels are intended to be comprised, they are specifically described, as in the 7 Wm. 4 and 1 Vict. c. 89, s. 3; see ante, p. 247.
Proof of the stealing of goods.] The words in the 7 & 8 Geo. 4, c. 29, s. 10, "any chattels," must be held, like the words, "any goods," in the repealed statute 1 Ed. 6, c. 12, to extend to articles deposited in a church, though not used for divine service. While a church was undergoing repair, 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. Upon a conviction for this offence, as sacrilege, under the statute of Ed. 6, *the judges were of opinion that these goods [ *852] were within the protection of the act, which was intended to prevent the violation of the sanctity of the place. Rouke's case, Russ. and Ry. 386 (e). Upon the ground of the decision in the above case, and the very general nature of the words used in the new statute, it would probably be held, that the stealing of any chattels in the church, though deposited there by a private individual, would be larceny. See 2 Deac. Dig. C. L. 1156.
The allegation of property in the parishioners, rector, or church-wardens, will be sufficiently proved by evidence, that the church is a parish church.
BREAKING AND ENTERING A SHOP, AND STEALING THEREIN.
By the 7 & 8 G. 4, c. 29, s. 15, "if any person shall break and enter any shop, warehouse, or counting-house, and steal therein any chattel, money, or valuable security; every such offender, being convicted thereof, shall be liable to any of the punishments which the court may award, as herein-before last mentioned." By the section referred to, (s. 14,) the punishment was transportation for life, &c.
Now by the 7 W. 4 and 1 Vict. c. 90, s. 2, so much of the above section as relates to the punishment of persons convicted of the offences
(a) Eng. Com. L. Rep. xiv. 465. (b) Id. xxv. 427. (c) 1 Eng. C. C. 412. (d) Eng. Com. L. Rep. xxxii. 578. (e) 1 Eng. C. C. 386.
therein mentioned, is repealed, and persons convicted of such offences are liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years.
For s. 3, authorizing the Court, in cases of imprisonment, to award hard labor and solitary confinement, see ante, p. 384.
As to the punishment of accessaries, see ante, pp. 206, 391.
The prosecutor must prove a breaking and entering, in the same manner as upon an indictment for breaking and entering a dwelling-house, ante, p. 384; and he must then prove a larceny in the shop, and that the goods were the property of the person mentioned in the indictment. Probably the decisions, with regard to the goods being under the protection of the dwelling-house, (in prosecutions for breaking and entering a dwelling-house, and stealing therefrom, ante, p. 385,) would be held applicable to prosecutions for this offence.
An indictment under the 7 & 8 G. 4, c. 29, s. 15, for stealing in a shop, &c., must allege that the prisoner stole the goods therein; an averment that the goods were in the shop and that the prisoner stole them, is not enough. Per Patteson, J., Roger Smith's case, 2 Moo. and R. 115.
The statutes against the offence of smuggling were consolidated by the 6 G. 4, c. 108, but other statutes having been subsequently passed, the whole were consolidated in the 3 & 4 W. 4, c. 53, which contains various regulations with regard to prosecutions by the customs in general.
Proof of assembling armed to assist in smuggling.] By the 3 & 4 Wm. 4, c. 53, s. 58, "if any persons to the number of three or more, armed with fire-arms or other offensive weapons, shall within the United Kingdom, or within the limits of any port, harbor, or creek thereof, be assembled in order to be aiding and assisting in the legal landing, running, or carrying away of any prohibited goods, or any goods liable to any du
ties which have not been paid or secured, or in rescuing or taking away any such goods as aforesaid, after seizure, from the officer of the customs or other officer authorized to seize the same, or from any person or persons employed by them, or assisting them, or from the place where the same shall have been lodged by them, or in rescuing any person who shall have been apprehended for any of the offences made felony by this or any act relating to the customs, or in the preventing the apprehension of any person who shall have been guilty of such offence, or in case any persons to the number of three or more, so armed as aforesaid, shall, within the United Kingdom, or within the limits of any port, harbor, or creek thereof, be so aiding or assisting, every person so offending, and every person aiding, abetting, or assisting therein, *shall, being thereof convicted, [ *854 ] be adjudged guilty of felony," [and suffer death as a felon.]
By the 7 W. 4 and 1 Vict. c. 91, the punishment of death for the offences mentioned in the above, and also in the 59th section, (see post, p. 855,) is abolished, and transportation for life, or for not less than fifteen years, or imprisonment for not exceeding three years substituted. For s. 2 of the recent act, see ante, p. 821.
On the part of the prosecution, the evidence will be-1, that the defendants to the number of three or more, were assembled together; 2, for the purpose of aiding and assisting; 3, that they or some of them (see Smith's case, Russ. and Ry. 386, ante, p. 506,) were armed; 4, with offensive weapons.
Proof of being assembled together.] It must be proved that the prisoners, to the number of three or more, were assembled together, and as it seems, deliberately, for the purpose of aiding and assisting in the commission of the illegal act. Where a number of drunken men came from an ale-house, and hastily set themselves to carry away some Geneva, which had been seized, it was considered very doubtful whether the case came within the statute 19 Geo. 2, c. 34, the words of which manifestly allude to the circumstance of great multitudes of people coming down upon the beach of the sea, for the purpose of escorting uncustomed goods. Hutchinson's case, 1 Leach, 343.
Reasonable proof must be given from which the jury may infer that the goods were uncustomed. See Shelly's case, 1 Leach, 340, (n.)
Proof of being armed with offensive weapons.] Although it may be difficult to define what is to be called an offensive weapon; yet, it would be going too far to say, that nothing but guns, pistols, daggers, and instruments of war are to be so considered; bludgeons, properly so called,, and clubs, and any thing not in common use for any other purpose than a weapon, being clearly offensive weapons within the meaning of the act. Cosan's case, 1 Leach, 342, 343, (n.) Large sticks, in one case, were held not to be offensive weapons; the preamble of the statute, showing that they must be what the law calls dangerous. Ince's case, 1 Leach, 342, (n.) But on an indictment with intent to rob, a common walking stick, has been held to be an offensive weapon. Johnson's case, Russ. and Ry. 492 (a), ante, p. 506. See also Sharwin's case, 1 East, P. C. 321. A whip was held not to be "an offensive weapon" within the 9
(a) 1 Eng. C. C. 492.