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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 The words in the 7 & 8 Geo. 4, c. 29, s. 10, "any chattels,” must be held, like the words, “any goods,” in the repealed statute 1 Ed. 6, c. 12, to extend to articles deposited in a church, though not used for divine service.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. (6) 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.
Proof of assembling armed to assist smug- Proof of being in company with others gling 853 having prohibited goods
855 Proof of being assembled together - 854 Service of indictment in certain cases, Proof of being armed with offensive wea- and entering plea for prisoners
855 pons 854 | Certain rules of evidence
856 Proof of shooting at a vessel belonging Limitation of prosecutions
.856 to the navy, &c. 854 Venue
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, barbor, or creek thereof, be so aiding or assisting, every person so offending, and every person aiding, abetting, or assisting therein, #shall, being thereof convicted, [ *354 ] 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, i Leach, 313.
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
than 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.
Geo. 2, c. 35, Fletcher's case, i Leach, 23; and, under the 6 Geo. 4, c. 138, bals, which are poles used by smugglers to carry tubs, were held not to be offensive weapons. Noake's case, 5 C. and P. 326 (a). If in a sudden affray, a man snatch up a hatchet, this does not coine within the statute. Rose's case, 1 Leach, 342, (n.)
Proof of shooting at a boat belonging to the navy, &c.] By s. 59, of the 3 and 4 Wm. 4, "if any person shall maliciously shoot at any ( *855 ] *vessel or boat belonging to his Majesty's navy, or in the service of the revenue, within one hundred leagues of any part of the coast of the United Kingdom, or shall maliciously shoot at, maim, or dangerously wound any officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer of customs or excise, or any person acting in his aid or assistance, or duly employed for the prevention of smuggling, in the due execution of his office or duty, (see s. 117 and 118, post, p. 856,) every person so offending, and every person aiding, abetting, or assisting therein, shall, being lawfully convicted, be adjudged guilty of felony, [and suffer death as a felon."] See now as to the punishment, ante, p. 854.
Upon an indictment under the first part of this section, the prosecutor must prove-1, the shooting ; 2, the malice ; 3, that the vessel shot at was belonging to the navy, or in the service of the revenue ; 4, that the vessel was within 100 leagues of the coast.
Upon the statute 52 Geo. 3, c. 143, it was held that if a custom-house vessel chased a smuggler, and fired into her without hoisting such a pendant and ensign, as the statute 56 Geo. 3, st. 2, c. 104, s. 8, required, the returning the fire by the smuggler was not malicious within the act. Reynold's case, Russ. and Ry: 465 (b).
Proof of being in company with others having prohibited goods.] By the 3 and 4 Wm. 4, c. 53, s. 60, "if any person being in company with more than four other persons be found with any goods liable to forfeiture, under this or any other act relating to the revenue of custoins or excise, or in company with one other person, within five miles of the sea coast, or of any navigable river leading therefrom, with such goods, and carrying offensive arms or weapons, or disguised in any way, every such person shall be judged guilty of felony, and shall, on conviction of such offence, be transported as a felon for the space of seven years."
For s. 61, relative to assaults on officers employed to prevent smuggling, see ante, p. 266.
Service of indictment in certain cases, and entering plea for prisoner.] By the 3 and 4 Wm. 4, c. 53, s. 108, “the judges of the King's Bench are empowered to issue warrants for apprehending offenders prosecuted by indictment or information, and such offenders neglecting to give bail, may be committed to gaol, and where any person, either by virtue of such warrant of commitment, or by virtue of any writ of capias ad respondendum issued out of the said court, is now detained or shall hereafter be committed to and detained in any gaol for want of bail, it shall be lawful for the prosecutor of such indictment or information to cause a
(a) Eng. Com. L. Rep. xxiv. 342. (6) 1 Eng. C. C. 465.
copy thereof to be delivered to such person, or to the gaoler, keeper, or
Certain rules of evidence. The 3 and 4 Wm. 4, c. 53, creates va-
other act relating to the customs, the averment that the commis-
By s. 117,“ all persons employed for the prevention of smuggling under the direction of the commissioners of his Majesty's customs, or of any officer or officers in the service of the customs, shall be deemed and taken to be duly employed for the prevention of smuggling; and the averment, in any information or suit, that such party was so duly employed, shall be