CHAPTER VI.

HAMESUCKEN.

THE crime of hamesucken consists in "the felonious seeking and invasion of a person in his dwelling-house." The mere breaking into the house, without the personal violence, does not constitute the offence; nor does the personal violence without an entry with intent to commit an assault. It is the combination of both which completes the crime.

1. It is necessary that the invasion of the house should. have proceeded from forethought malice; but it is sufficient if, from any illegal motive, the violence has been meditated, although it have not proceeded from the desire of wreaking personal revenge properly so called.

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1. It is an undoubted requisite of the crime of hamesucken, that the entry of the house have been effected with a view to the perpetration of personal violence; for it is in the premeditated seeking of the person at his home to assault him, that the aggravated and distinctive character of the crime lies. No outrage, therefore, how violent soever, which a person suffers in his own house, is to be regarded as hamesucken, if it happen in consequence of a quarrel taken up at the moment, or of an altercation with the invaders, who came there peaceably and lawfully at first. Accordingly, in the case of William Den, Aberdeen, April 1827, Lord Mackenzie found an indictment for hamesucken relevant which did not specify that the entry to the house was with a view to an assault. Nay, the same will hold if the invasion of the house has taken place in consequence of a scuffle in the street, or on the outside, and the assailant has merely followed the person assaulted into his own

1

Hume, i. 312; Burnett, 86.-2 Burnett, 86. Hume, i. 319. Ibid.

house, whither he had fled to avoid the violence; for, though the entry has here taken place during the heat of passion, it is not that deliberate and premeditated intention of violence, which constitutes the essence of the crime.1 In the case of Thomson and Inglis, November 1719, accordingly, which was a case of one person pursuing another into his house and assaulting him, after a scuffle in the street, the prosecution, after a full argument, was restricted, and the charge of hamesucken departed from.2

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But though this is well established on the one hand, it is equally fixed on the other, that, if the house has been entered with the design of committing violence, the crime of hamesucken is committed, though the ulterior, and possibly the principal, object was not violence, but depredation, rape, abduction, or any other offence. It is sufficient, in the estimation of the law, if, in the prosecution of this felonious design, the assailants have resolved to commit violence to the persons of the inmates of the house; the existence of other motives will not take away the legal effects of a resolution to commit violence. Accordingly, in the case of Campbell, July 1. 1673, and Carnegy and others, June 20. 1681, the crimes charged were abduction, rape, and hamesucken; the object in both cases being the carrying off of young women, although no trial took place in either instance. Farther, in the case of the Macgregors, July 1752, and January 1753, the object was a forcible marriage, but nevertheless hamesucken was charged, and sustained as relevant by the Court, though objected to in the prisoner's information, on the ground that injury to the person was not charged as the primary object of the violence.5 In like manner, in the case of Potts, Glasgow, spring 1792, the indictment bore a charge of hamesucken, and stated that the assault was made in the dwelling-house with intent to commit a robbery; and this was sustained as relevant. To the same purpose, in the case of Gray, Glasgow, April 1800, the indictment charged hamesucken among other crimes, and the minor set forth that the prisoners entered the house armed with bludgeons," with a wicked and forethought intent to assault and injure the persons of the said Ludovick Colquhoun and his servants, and by that means commit a theft or robbery in the said house." The relevancy of this charge was objected to on the

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1 Hume, i. 319; Burnett, 86.-2 Ibid. Burnett, 87.-1 Ibid. 88.—” Ibid. Burnett, 90, 91.

ground that the usual incentive of personal enmity was here awanting, and that entry done animo lucri could not support a charge of hamesucken; but to this it was sustained as a sufficient answer, that personal violence was considered as a means necessary to attain the end, and that malitia in the eye of law means any wicked and felonious purpose. The prisoner accordingly was convicted and executed.1 Hamesucken was

found to be a relevant charge where the intent libelled was " to assault and commit a rape," at Glasgow, winter 1828, in the case of Richard Beats.

It will not, however, be sufficient to support a charge of hamesucken, if the entry have taken place with an intent to commit not a crime of violence, but a crime of stealth, as theft, fire-raising, &c., and the violence has ensued in consequence of the offender being detected, and in the course of the efforts made to apprehend or secure him.2 The mere felonious intent will not be sufficient, if it be not a felonious intent in which violence is contemplated as a principal ingredient. Farther, if the house have been entered under some mistaken idea of right, or in prosecution of some irregular act, as under an irregular warrant, or by mistake for some other person, and in consequence violence ensues; certainly this is a point of dittay, but cannot be considered as hamesucken.3 Much less would it be construed to amount to that crime, if the error lay in excessive and undue execution of a warrant in itself correct and lawful.4

2. The place where the assault was committed must have been the proper dwelling-house of the party injured, and not a place of business, visit, or occasional residence.

The principal circumstance which renders hamesucken so serious an offence is, the violation of the security of a man's proper home. It cannot, therefore, be committed on a tradesman in his booth, shop, or warehouse, as was found in the case of John Kirkwood, March 12. 1678;5 nor on a comedian in his theatre or place of business, as was determined in the case of Mungo Murray, June 4. 1669; 6 nor on a miller in his mill, a cobbler in his stall, a banker in his counting-house, or the like. As little is it hamesucken if the assault have taken

1 Burnett, 90, 91.—2 Hume, i. 319.—3 Ibid.—1 Ibid.—3 Ibid. i. 313.— 6 Ibid. Ibid.

place, not in the party's proper home, but under the roof of a stranger, or in an inn, hotel, or place of temporary residence.1 So it was found with respect to a lodger in an inn, in the case of Peter Leith, November 15. 1686; and with respect to troopers in a tavern, in the case of the Master of Tarbat and others, August 18. 1691.2

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But this high protection is not confined to the proprietor of the house; the privilege applies also to the tenant or possessor, even though the invasion have been committed by his own. landlord. So it was found in the case of Keith of Linbush, January 11. 1692, where the interlocutor of relevancy expressly required that not the property only, but the possession, should have been in the pannel at the time. And it applies not to the master of the family only, but his wife, children, and servants, and, in general, all the members of his household who are there at bed and board permanently at the time.5 Accordingly, in the case of Campbell and Mackinnon, June 1725, the pannels were executed on a charge of hamesucken, for having violently broken into the house of Fraser of Topachy, and beat and wounded his servants. The like judgment was given in the case of George Johnston, 1754, where the assault was on a lodger with the family, who had dwelt there for some months, and had no other home; 7 and in the case of Peter Gray, Glasgow, April 1800, where the Court were clearly of opinion that the crime of hamesucken was committed on servants.8 In the case of Richard Hamilton, 21st July 1807, the assault was committed on an old woman, who occupied a single apartment immediately over the pannel's dwelling-place, and a part of the same tenement or building, though entering by a separate stair from without, and not from any part of Hamilton's house. This was considered as hamesucken by the Court, and Mr Hume adds that the same principle holds in the case of lands or floors, which are certainly separate houses. This derives some support from the principle of the English law, which, in cases of burglary, holds apartments let to several lodgers, and of which they keep the keys, as their respective dwelling-places, though the entrance to them is by a common passage, if the owner of the premises do not occupy any part of the house. 10

1 Hume, i. 313.-2 Ibid.; Burnett, 92.-3 Hume, i. 314; Burnett, 92.4 Hume, i. 314.5 Burnett, 92; Hume, i. 314. Hume, i. 314.-7 Maclaurin, No. 65.--8 Burnet, 92.—9 Hume, i. 314.—1o Leach, i. 50, 118, 148, 198.

1

In the case of an innkeeper there is room for a distinction. It is not hamesucken to invade a publican, being already in his house, as was the opinion of the Court in Muir's case, 8th November 1675, but only an aggravated assault. The like was found in the case of John Torrance and William Baillie, March 15. 1726.2 But if the entry be made not after the usual fashion of coming into an inn, but violently and unlawfully, as by forcing his window in the night, the same protection applies to him as to any other individual. Accordingly, in just such a case, the petition of Bernard Clunes for bail was refused; and the Court found, after full argument, in the case of Johnston and Mason, 9th December 1754, held that it was hamesucken to enter a brothel with intent to assault a female lodger, and there perpetrate the violence.5

4

Hamesucken is not committed any where but within the dwelling-house. An assault, therefore, within the precincts, or in the court-yard or offices, is not this serious crime, but only a common assault. So it was found in the case of David Home, October 1723, where an assault committed in the close or court-yard of Seaton was found only relevant to infer an arbitrary punishment.7

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But, on the other hand, the crime is hamesucken, if the injury be inflicted within the house, in pursuance of a seeking to commit violence there, although the assailants have neither crossed the threshhold, nor in any way entered the house, as by firing at the inmate from without, or thrusting at him through an opening. Nay, it seems to be no lesser offence if the seeking be from without, and the safety of the house be violated, although the principal offence be committed on the outside; as if a band of ruffians go to the door, knock, and when the master opens, rush upon him, and drag him out into the highway or street, where the beating takes place. Here the assault begins within the premises, and is only continued on the outside. Accordingly, in the case of Robert Macgregor, January 1753, the pannel was convicted and executed for hamesucken, committed by the forcible abduction of Jean Key from the house, done without any beating or other violence, though in opposition to her struggles. The same will hold if

1 Burnett, 93, 94; Hume, i. 315.-2 Ibid.3 Hume, i. 35. Ibid. 5 Burnett, 94.6 Hume, i, 315, 316.- Ibid. i. 316. Ibid. Maclaurin, 62; Hume, i. 317.