The vestry of a parish church was broken open and robbed. It was formed out of what before had been the church-porch, but had a door opening into the churchyard, which could only be unlocked from the inside. It was held by Coleridge, J., that this vestry was part of the fabric of the church, and within the act. R. v. Evans, Carr. & M. 298. Proof of the stealing of goods.] The words in the 7 and 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 "any chattels," must be held, like the words, "any goods," in the repealed statute, 1 Ed. 6, c. 12, to extend to articles deposited in a church, though not used for divine service.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 snatchblock, 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 were within the protection of the act, which was intended to prevent the violation of the sanctity of the place. Rourke's case, Russ. & Ry. 386. 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 and 8 Geo. 4, c. 29, s. 15, (the 9 Geo. 4, c. 55, I.) "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 hereinbefore last mentioned." By the section referred to, (s. 14,) the punishment was transportation for life, &c. Now by the 7 Wm. 4 and 1 Vict. c. 90, (E. & I.) s. 2, so much of the above section as relates to the punishment of persons convicted of the offences therein mentioned, is repealed, and persons convicted of such offences are liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than seven years, or to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 labour and solitary confinement, see ante, p. 429. As to the punishment of accessaries, see ante, pp. 218, 436. 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. 429; 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. 431,) would be held applicable to prosecutions for this offence. An indictment under the 7 & 8 Geo. 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. & Rob. 115. But where an indictment for house-breaking averred, that the prisoner "fortytwo pieces of the current gold coin, &c. in the same dwelling-house then and there being found, then and there feloniously did steal," &c.; Coleridge, J. held it sufficient without the words, "in the same dwelling-house," in the last allegation. The learned judge, on Roger Smith's case being cited, said, that Mr. Justice Patteson now doubted the correctness of that decision. R. v. Andrews, Carr. & M. 121.a A workshop, such as a carpenter's shop, or a blacksmith's shop, is not within the 7 and 8 Geo. 4, c. 29, s. 15; to come within its provisions the shop must be for the sale of articles. Per Alderson, B., *R. v. Sanders, 9 Carr. & P. [*919] But it has recently been held by Lord Denman, C. J., in R. v. Carter, 1 C. & K. 173, that a person who breaks into an ordinary blacksmith's shop, containing a forge, and used as a workshp only, not being inhabited, nor attached to any dwelling-house, and who steals goods therein, may be convicted of breaking into a shop, and stealing goods under the foregoing section. SMALL DEBT COURTS-OFFENCES RELATING TO. By the 7 and 8 Vict. c. 19, (E.) (an act for regulating the bailiffs of inferior courts,) s. 5, "for every such (inferior) court a seal shall be made under the direction of the judge of such court, and all summonses and other process issuing out of the said court shall be sealed or stamped with such seal; and every person who shall forge the seal or any process of the court, or who shall serve or enforce any such forged process, knowing the same to be forged, or deliver, or cause to be delivered to any person, any paper, falsely purporting to be a copy of any summons, or other process of the said court, knowing the same to be false, or who shall act, or profess to act, under or by the authority of such summons or process, knowing the same to be false, or who shall take upon himself to act as a bailiff of any such court without lawful authority shall be guilty of felony." Eng. Com. Law Reps. xli. 72. b Id. xxxviii. 42. • Id. xlvii. 173. Proof of being in company with others having prohibited goods Service of indictment in certain cases, and entering plea for prisoners 920 921 921 921 922 922 923 924 924 The statutes against the offence of smuggling were included in the 6 Geo. 4, c. 108, but other statutes having been subsequently passed, the whole were consolidated in the 3 and 4 Wm. 4, c. 53. This latter statute, and the parts of acts subsequently passed for the amendment of the law are now consolidated in the 8 and 9 Vict. c. 87 (U. K.) which contains various regulations with regard to prosecutions by the customs in general. Proof of assembling armed to assist in smuggling.] By the 8 and 9 Vict. c. 87, s. 63, "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, harbour, or creek thereof, be assembled in order to be aiding and assisting in the illegal landing, running, or carrying away of any prohibited goods, or any goods liable to any duties 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, harbour, or creek thereof, be so aiding or assisting, every person so offending, and every person aiding, abetting, or assisting therein, shall, being thereof convicted, be adjudged guilty of felony, and shall be liable, at the dis[*921] cretion of the court before which he shall be convicted, *to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." On the part of the prosecution, the evidence will be-1, that the defendants to the numder 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. & Ry. 386, ante, p. 558), were armed; 4, with offensive weapons. 1 Eng. C. C. 386. 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 circumstances 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 Shelley'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. & Ry. 492, and Fry's case, 2 Moo. & R. 42, ante, p. 559. See also Sharwin's case, 1 East, P. C. 321. A whip was held not to be "an offensive weapon" within the 9 Geo. 2, c. 35, Fletcher's case, 1 Leach, 23; and, under the 6 Geo. 4, c. 138, bats, which are poles used by smugglers to carry tubs, were held not to be offensive weapons. Noake's case, 5 C. & P. 326. If in a sudden affray, a man snatch up a hatchet, this does not come within the statute. Rose's case, 1 Leach, 342, (n.) Proof of shooting at a boat belonging to the navy, &c.] By s. 64 of the 8 and 9 Vict. c. 87, "if any person shall maliciously shoot at any vessel or boat belonging to her 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 sects. 131 and 132, post, p. 923,) every person so *offending, and every [*922] person aiding, abetting, or assisting therein, shall, being lawfully convicted, be adjudged guilty of felony, and shall be liable, at the discretion of the court before which he shall be convicted, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." 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, Eng. Com. Law Reps. xxiv. 342. 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. & Ry. 465.° Proof of being in company with others having prohibited goods.] By the 8 and 9 Vict. c. 87, s. 65, "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 customs 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 term of seven years." 'As to assaults on officers employed to prevent smuggling, see the 8 and 9 Vict. c. 87, s. 66, which is verbatim the same as the 3 and 4 Wm. 4, c. 53, s. 61, ante, p. 298. Service of indictment in certain cases, and entering plea for prisoner.] By the 8 and 9 Vict. c. 87, s. 122, the judges of the queen'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 copy thereof to be delivered to such person, or to the gaoler, keeper, or turnkey of the gaol wherein such person is or shall be so detained, with a notice thereon indorsed that unless such person shall, within eight days from the time of such delivery of a copy of the indictment or information as aforesaid, cause an appearance and also a plea or demurrer to be entered in the said court to such indictment or information, and appearance and plea of not guilty will be entered thereto in the name of such person; and in case he or she shall thereupon, for the space of eight days after the delivery of a copy of such indictment or information as aforesaid, neglect to cause an appearance and also a plea or demurrer to be entered in the said court to such indictment or information, it shall be lawful for the prosecutor of such indictment or information, upon affidavit being made and filed in the court of the *923] delivery of a copy of such indictment or information, with *such notice indorsed thereon as aforesaid, to such person, or to such gaoler, keeper, turnkey, as the case may be, which affidavit may be made before any judge or commissioner of the said court authorized to take affidavits in the said court, to cause an appearance and the plea of not guilty to be entered in the said court to such indictment on information, for such person; and such proceedings shall be had thereupon as if the defendant in such indictment or information appeared and pleaded not guilty, according to the usual course of the said court; and that if upon trial of such indictment or information any defendant so committed and detained as aforesaid shall be acquitted of all the offences therein charged upon him or her, it shall be lawful for the judge before whom such trial shall be had, although he may not be one of the judges of the said court of queen's bench, to order that such defendant shall be forthwith discharged out of custody as to his or her commitment as aforesaid, and such defendant shall be thereupon discharged accordingly. Presumptions on proceedings under the 8 and 9 Vict. c. 87.] This statute creates 1 Eng. C. C. 465. |