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CHAPTER THE ELEVENTH.

OF MAIMING, &c. BY THE FURIOUS DRIVING, &c. OF STAGE

COACHMEN.

THE 1 Geo. 4, c. 4, enacts, "that if any person whatever shall be maimed, or otherwise injured by reason of the wanton and furious driving or racing, or by the wilful misconduct of any coach

man or other person having the charge of any stage coach or
any stage coach or public
carriage, such wanton and furious driving or racing, or wilful mis-
conduct of such coachman or other person, shall be and the same
is hereby declared to be a misdemeanor, and punishable as such
by fine and imprisonment: provided always, that nothing in this
act contained shall extend or be construed to extend to hackney
coaches, being drawn by two horses only, and not plying for hire as
stage coaches."

By the 2 & 3 Wm. 4, c. 120, s. 34, a penalty is imposed for carrying a greater number of passengers than is authorized by the license, of 51. for each passenger above the number.

By the 7 & 8 Geo. 4, c. lxxv., s. 38, every person convicted of working or navigating any wherry, boat, or other vessel licensed to carry persons or passengers on the river Thames, in which any greater number of persons or passengers shall be taken or carried than are allowed to be carried therein, in case any one or more of them shall by reason thereof be drowned, besides being liable to be punished for a misdemeanor, is disfranchised and not allowed at any time thereafter to work, row, or navigate any wherry, boat, or other vessel, or to enjoy any of the privileges of a freeman of the company of "The Master, Wardens, and Commonalty of Watermen and Lightermen of the River Thames."

Where any person is injured by the wanton and furious driving, misconduct of the coachman of any public carriage, such wanton driv

or wilful

ing, &c., is declared to be a

misdemeanor.

CHAPTER THE TWELFTH.

7 & 8 Geo. 4,

c. 18. Persons placing spring

setting or

guns, man traps, &c., guilty of a misdemeanor.

Sec. 2. Proviso for traps for destroying

vermin.

Sect 3. Per

sons permitting

guns, traps, &c., set by

OF SETTING SPRING GUNS, &c.

THE 7 & 8 Geo. 4, c. 18, s. 1, enacts and declares, “That if any person shall set or place, or cause to be set or placed, any spring gun, man trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent that the same, or whereby the same may destroy or inflict grievous bodily harm, upon a trespasser or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor."

By sec. 2, "Nothing herein contained shall extend to make it illegal to set any gin or trap, such as may have been or may be usually set with the intent of destroying vermin."

By sec. 3, "If any person shall knowingly and wilfully permit any such spring gun, man trap, or other engine, as aforesaid, which may have been set, fixed, or left in any place, then being in, or afterwards coming into his or her possession or occupation, by some tinue, deemed other person or persons, to continue so set or fixed, the person so permitting the same to continue, shall be deemed to have set and fixed such gun, trap, or engine, with such intent as aforesaid."

others, to con

to have set the same.

Sec. 4. Proviso

for guns, traps,

By sec. 4, "Nothing in this act shall be deemed or construed to make it a misdemeanor, within the meaning of this act, to set or &c., set for the cause to be set, or to be continued set, from sun-set to sun-rise, any protection of dwellingspring gun, man trap, or other engine, which shall be set, or caused houses. or continued to be set, in a dwelling-house, for the protection thereof."

By sec. 5, the act is not to affect proceedings touching any matter or thing done or committed previous to its passing. And by sec. 6, the act is not to extend to Scotland.

BOOK THE FOURTH.

OF OFFENCES AGAINST PROPERTY, PUBLIC OR

PRIVATE.

CHAPTER THE FIRST.

OF BURGLARY.

It is laid down in the more ancient authorities, that the offence Definition of of burglary may be committed by the felonious breaking and en- the offence. tering of a church, and the walls and gates of a town, in time of peace, as well as by the felonious breaking and entering of a private house. (a) But the more material inquiry at the present day relates to the breaking and entering of private houses, or, in the language of the books, the mansion-houses of individuals: and this species of the offence appears to be well described, as-A breaking and entering the mansion-house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. (b)

(a) Staundf. P. C. 30. 22 Ass. pl. 95. Britt. c. 10. Dalt. c. 99. Crom. 31. Spelm. in verbo Burglaria. In 3 Inst. 64, Lord Coke gives as a reason for considering the breaking and entering the church as a burglary, that the church is domus mansionalis omnipotentis Dei; but Hawkins says that he does not find this nicety countenanced by the more ancient authors; and that the general tenor of the old books seems to be that burglary may be committed in break. ing houses, or churches, or the walls, or gates of a town. 1 Hawk. P. C. c. 38,

s. 17.

And in 4 Blac. Com. 224, it is stated that breaking open a church is undoubtedly burglary.

(b) 3 Inst. 63. 1 Hale, 549. Sum. 79. 1 Hawk. P. C. c. 38, s. 1. 4 Blac. Com, 224. 2 East, P. C. c. 15, s. 1, p. 484. Burn. Just. tit. Burglary, s. 1. The word burglar is supposed to have been introduced from Germany by the Saxons; and to be derived from the German, burg, a house, VOL. I.

and lurron, a thief; the latter word being from the Latin, latro. Burn. Just. tit. Burgl. s. 1. 2 East, P. C. c. 15, s. 1, p. 484. But Sir H. Spelman thinks that the word burglaria was brought here by the Normans, as he does not find it amongst the Saxons and he says that burglatores, or burgatores, were so called, quod dum alii per campos latrocinantur eminus, hi burgos pertinacius effringunt, et deprædantur. The crime, however, appears to have been noticed in our earliest laws, in the common genus of offences denominated Hamsecken; and by the ancient laws of Canutus, and of Hen. 1, to have been punishable with death. Ll. Canuti, c. 61. Hen. 1, c. 13. 1 Hale, 547, citing Spelm. Gloss. tit. Hamsecken, and ibid. tit. Burglaria. Originally, the circumstance of time, which is now of the very essence of the offence, does not seem to have been material; and the malignity of the crime was supposed to consist merely in the invasion on the right of habitation, to EEE

A breaking and entering

are both necessary.

Pursuing the order of this definition, we may consider, I. Of the breaking and entering: II. Of the mansion-house; III. Of the time-namely, the night: IV. Of the intent to commit a felony.

I. Notwithstanding some loose opinions to the contrary, which may have been formerly entertained, it is now well settled that both a breaking and entering are necessary to complete the offence of burglary. (c)

With respect to the breaking, it is agreed that it is not every entrance into a house, in the nature of a mere trespass, which will be sufficient, or satisfy the language of the indictment, felonice et burglariter fregit. (d) Thus, if a man enter into a house by a door or window, which he finds open, or through a hole which was made there before, and steal goods; or draw goods out of a house through such door, window, or hole, he will not be guilty of burglary. (e) There must either be an actual breaking of some part of the house, in effecting which more or less of actual force is employed; or a breaking by construction of law, where an entrance is obtained by threats, fraud, or conspiracy.

Where, therefore, a cellar window, which was boarded up, had in it a round aperture of considerable size, to admit light into the cellar, and through this aperture one of the prisoners thrust his head, and, by the assistance of the other prisoner, he thus entered the house, but the prisoners did not enlarge the aperture at all; it was held that this was not a sufficient breaking. (f) So where a hole had been left in the roof of a brewhouse, part of a dwellinghouse, for the purpose of light, and it was contended that an entry through this hole was like an entry by a chimney: it was held that this was not a sufficient breaking. Bosanquet, J., "The entry by the chimney stands upon a very different footing; it is a necessary opening in every house, which needs protection; but if a man choose to leave an opening in the wall or roof of his house, instead of a fastened window, he must take the consequences. The entry through such an opening is not a breaking." (g)

An actual breaking of the house may be by making a hole in the wall; by forcing open the door; by putting back, picking, or opening the lock with a false key; by breaking the window; by taking a pane of glass out of the window, either by taking out the nails or other fastenings, or by drawing or bending them back, or by

which the laws of England have always
shewn an especial regard, herein agreeing
with the sentiments of ancient Rome, as
expressed in the words of Cicero: Quid
enim sanctius, quid omni religione munitius,
quam domus uniuscujusque civium? Hic
ara sunt, hic foci-hoc perfugium est ita
sanctum omnibus, ut inde abripi neminem fas
sit. The learned editor of Bacon's Abridg-
ment says that his researches had not
enabled him to discover at what particular
period time was the first deemed essential to
the offence; but that it must have been so
settled before the reign of Ed. 6, as in
the fourth year of that king it is expressly
laid down that it shall not be adjudged
burglary, nisi ou le infreinder del meason est
per noctem, (Bro. tit. Corone, pl. 185), and

that, two years before, per noctem is introduced (Id. pl. 180), as of course in the mention of the offence. 1 Bac. Ab. tit. Burglary, 539 (ed 1807.) And see 3 Inst. 65.

(c) Hawk. P. C. c. 38, s. 3. 1 Hale, 551. 4 Blac. Com. 226.

(d) 3 Inst. 64. 1 Hawk. P. C. c. 38, s. 4. 1 Hale, 551, 552.

(e) Id. ibid. For if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein it is no burglary. 4 Blac. Com.

226.

(f) Rex v. Lewis, 2 C. & P. 628, Vaughan, B.

(9) Rex v. Spriggs, 1 M. & Rob. 357.

putting back the leaf of a window with an instrument. And even the drawing or lifting up the latch (h), where the door is not otherwise fastened; the turning the key where the door is locked on the inside or the unloosing any other fastening which the owner has provided, will amount to a breaking. (i)

Where a pane of glass had been cut for a month, but there was no opening whatever, as every portion of the glass remained exactly in its place, and the prisoner was both seen and heard to put his hand through the glass, this was held a sufficient breaking. (j)

So where a window opening upon hinges, is fastened by a Opening wedge, so that pushing against it will open it, if such window be windows. forced open by pushing against it, there will be a sufficient breaking. The prisoner got into the prosecutor's cellar, by lifting up a heavy grating, and into his house by forcing open a window which opened on hinges, and was fastened by two nails, which acted as wedges, but would open by pushing: upon a case reserved, the judges held the forcing open the window to be a sufficient breaking. (k) So pulling down the sash of a window is a breaking, though it has no fastening, and is only kept in its place by the pulley weight and it makes no difference that there is an outer shutter which is not closed. The prisoner entered a house by pushing down the upper sash of a window, which had no fastening, and was kept in its place by the pulley weight only. There was an outer shutter, but it was not put to. A case was reserved upon the question, whether the pushing down the sash was a breaking, and all the judges were unanimous that it was. (1)

So raising a window, which is shut down close, but not fastened, is a breaking, although there be a hasp, which could have been fastened to keep the window down. (m)

But if a window be partly open, but not sufficiently so as to admit a person, the raising it higher, so as to admit a person, is not a breaking. The prisoner was seen very near a window, which in the morning had been shut quite down, but when the prisoner was seen was raised about a couple of inches, and he immediately afterwards threw the sash quite up, and entered: and upon a case reserved the judges were unanimous that this was not a breaking. (n) But where a square of glass in a kitchen window, through which the prisoners entered, had been previously broken by accident, and half of it was out at the time when the prosecutor left the house, and the aperture was sufficient to admit a hand, but not to enable a person to put his arm in, so as to undo the fastening of the casement, and one of the prisoners thrust his arm through the aperture, thereby breaking out the residue of the square, and having so done, he removed the fastening of the casement; Mr. J. Alderson, and Mr. J. Patteson, entertaining a doubt, from the difficulty they had to distinguish satisfactorily the case of enlarging a hole already existing, from the

(h) Owen's case, 1 Lewin, 35, per Bayley, J., whether it be an outer or inner door, and see Rex v. Lawrence, 4 C. & P. 231, and Rex v. Jordan, 7 C. & P. 432.

(i) 1 Hale, 552. 3 Inst. 64. Sum. 80. 1 Hawk. P. C, c. 38, s. 6. 2 East, P. C. c. 15, s. 3, p. 487.

(j) Reg. v. Bird, 9 C. & P. 44, Bosanquet, J.

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