ces, to hold that the letter contained none, would be equivalent to holding that, whenever the menaces came from one person, and the letter from another, neither could be indicted; and, at all events, it was a question for the jury whether the letter did contain menaces. Bolland, B., then left it to the jury to say, whether the letter contained menaces, and they convicted the prisoner ; but, upon a case reserved, the majority of the judges eight in number were of opinion that the conviction was wrong; but the other four judges (Tindall, CJ, Garrow, B, Park, J., and Bosanquet, J. thought the letter was one demanding money with menaces. (1)

In a later case, it was, however, decided that a very similar letter was a letter demanding money with menaces, within the same statute of Geo. 4; the letter being one written to a banker, stating that it was intended by a cracksman to burn his books, and cause the bank to stop, and that if £250 were put in a certain place, the writer of the letter would prevent the mischief, but if the money were not put there it would happen. (2)

404. Demanding with intent to steal.-Every one is guilty of an indictable offence and liable to two years' imprisonment who, with menaces, demands from any person, either for himself or for any other person, anything capable of being stolen with intent to steal it.

This article is to the same effect as sec. 45 of 24 and 25 Vie, c. 96

In order to bring a case within this article, the demand must be such as would, if successful, amount to stealing; and the menace contemplated by the article must be of such a nature as to unsettle the mind of the person upon whom it operates, and to take away from his acts that element of voluntary action which alone constitutes consent. It must therefore be left to the jury to say whether the conduct of the prisoner is such as to have had that effect on the prosecutor. (3)

The gist of the offence is the demand itself accompanied by menaces and an intent to steal; and, therefore, if such a demand is successful it amounts to an actual theft.

Where a policeman, professing to act under legal authority, threatened, that, unless money were given to him he would imprison a person on a charge not amounting to an offence in law, and the person believing him gave him money, it was held that he might be indicted under the Imperial statute 24-25 Vict., c. 96, s. 45; although he might also have been indicted for stealing the money. (4)

As menaces are of two kinds,-by words or by gestures, it seems that it is not necessary to prove an express demand in words, but that if the words or gestures of the defendant at the time were plainly indicative of what he required and tantamount in fact to a demand, though not in actual words, it would seem to be sufficient proof of the allegation, in the indictment, of a demand. (5)

405. Extortion by threats to accuse of a capital or infamous crime, -Every one is guilty of an indictable offence and liable to fourteen year's imprisonment who, with intent to extort or gain anything from any person—

(a) accuses or threatens to accuse either that person or any other person, whether the person accused or threatened with accusation is guilty or not, of

(1) R. v. Pickford, 4 C. & P. 227.

(2) R. v. Smith, 1 Den. 510; 2 C. & K. 882; 19 L. J. (M. C.) 80.

(3) R v. Walton, L. & C. 288; 32 L. J (M. C.) 79.

(4) R. v. Robertson, L. & C. 483; 34 L. J. (M. C.) 35.

(5) R. v. Jackson, 1 Leach, 269.

(i.) any offence punishable by law with death or imprisonment for seven years or more;

(ii.) any assault with intent to commit a rape, or any attempt or endeavour to commit a rape, or any indecent assault;

(iii) carnally knowing or attempting to know any child so as to be punishable under this Act;

(iv) any infamous offence, that is to say buggery, an attempt or assault with intent to commit buggery, or any unnatural practice, or incest;

(v.) counselling or procuring any person to commit any such infamous offence; or

(b.) threatens that any person shall be so accused by any other person; or

(c.) causes any person to receive a document containing such accusation or threat, knowing the contents thereof;

(d.) by any of the means aforesaid compels or attempts to compel any person to execute, make, accept, endorse, alter or destroy the whole or any part of any valuable security, or to write, impress or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or couverted into or used or dealt with as a valuable security. R.S.C., c. 173, ss. 3, 4, 1 and 5.

The provisions of the Imperial law on the subjects of the above article 405 are contained in sections 46 and 47 of 24 and 25 Vict c. 96, which are as follows;

Whosoever shall send, deliver or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing, accusing or threatening to accuse any other person of any crime punishable by law with death, or penal servitude for not less than seven years, or of any assault with intent to commit any rape, or of any attempt or endeavor to commit any rape, or of any infamous crime as hereinafter defined, with a view or intent, in any of such cases, to extort or gain, by means of such letter or writing, any property, chattel, money, valuable security or other valuable thing from any person, is guilty of felony, and being convicted thereof shall be liable at the discretion of the court, to be kept in penal servitude for life, or to be imprisoned [etc]; and the abominable crime of buggery, committed either with mankind or with beast, and every assault with intent to commit the said abominable crime, and every attempt or endeavor to commit the said abominable crime, and every solicitation, persuasion, promise or threat offered or made to any person whereby to move or induce such person to commit or permit the said abominable crime, shall be deemed to be an infamous crime within the meaning of this Act:" (section 46)

"Whosoever shall accuse, or threaten to accuse, either the person to whom such accusation or threat shall be made or any other person, of any of the infamous or other crimes lastly herein before mentioned, with the view or intent, in any of the cases last aforesaid, to extort or gain from such person so accused or threatened to be

accused, or from any other person, any property, chattel, money, valuable security or other valuable thing, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life; [etc.] (Section 47).

It will be seen that, under the provisions of the above article, 405, the accusation or threat to accuse may be either verbal or in the shape of document; and that under the English sections the accusation or threat may be either verbal or in the shape of a letter or writing; and as both refer in effect, to the same offences there is very little difference between the English section and our article 405. But article 406, post, extends the above provisions so as to cover accusations or threats to accuse of any other offence.

It seems that the threat need not be a threat to accuse before a judicial tribunal; but that a threat to make the accusation before a third party is sufficient (1). So that if A. with intent to extort money from B. were to threaten to accuse him, before his wife of having committed an infamous offence, it seems that this would make A. liable under the above article.

The article expressly states that it shall be immaterial whether the accusation be true or not; and, therefore, it would be no defence that the prosecutor was guilty of the offence of which he was accused or threatened to be accused; (2) for the gist of the crime is the accusing or threatening to accuse with intent to extort or gain anything.

The prosecutor's guilt or innocence of the crime imputed to him may, however, be material where the question arises as to whether, under the circumstances, the prisoner had an intention to extort money. (3)

If the prisoner's intent do not appear from the accusation or threat itself, it may be proved by circumstances from which the jury may fairly presume it; as by subsequent expressions of the defendant. (4)

Proof that the prisoner went to the prosecutor, and threatened to accuse his son of an unnatural offence with a mare unless the prosecutor would buy the mare for £3, was held to sustain an indictment for threatening to accuse of an abominable crime, with intent thereby to extort money. (5)

As to threats to murder, see article 233, ante; and as to threats to burn see article 487, post.

406. Extortion by Threats to Accuse of any other offence.-Every one is guilty of an indictable offence, and liable to imprisonment for seven years who—

(a.) with intent to extort or gain anything from any person accuses or threatens to accuse either that person or any other person of any offence other than those specified in the last section, whether the person accused or threatened with accusation is guilty or not of that offence: or

(b.) with such intent as aforesaid, threatens that any person shall be so accused by any person; or

(c.) causes any person to receive a document containing such accusation or threat knowing the contents thereof; or

(1) R. v. Robinson, 2 M. & Rob. 14.

(2) R. v Cracknell, 10 Cox, 408.

(3) R. v Richards, 11 Cox, 43.

(4) R. v. Cain, 8 C. & P. 187.

(5) R. v. Redman, L. R., 1 C. C. R. 12 ; 35 L. J. (M. C.) 89.

(d.) by any of the means aforesaid, compels or attemps to compel any person to execute, make, accept, endorse, alter or destroy the whole or any part of any valuable security, or to write, impress or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or converted into, or used or dealt with as a valuable security.

Articles 405 and 406 are to the same effect as sections 295 and 296 of the English Draft Code, except, that under the first of these two sections the punishment is penal servitude for life, (with one whipping in the case of a male offender under sixteen,) and seven years penal servitude, under the other section.

Upon section 296 of their Draft the English Commissioners have the following remark :

"The provisions as to Robbery and Extortion re-enact the existing law, with the exception of section 296, which is new. At present a policeman or game keeper who levies blackmail under threats of accusing of larceny or poaching, is, if criminally responsible at all,—only punishable with imprisonment and fine."

A obtained five shillings from B. by pretending to be a bailiff, and threatening to distrain. It was held that his guilt depended on the question whether or not he made the threat in such a way as to unsettle B's mind, and take away from his acts that element of free voluntary action which alone constitutes consent. (1)

A demand with menaces of money actually due is not a demand with intent to steal. (2)

PART XXX.

BURGLARY AND HOUSEBREAKING.

According to some of the more ancient authorities, burglary was the felonious breaking and entering of houses, or churches, or the walls or gates of a town.

Lord Coke gives as a reason for considering the breaking and entering of a church as a burglary, that the church is domus mansionalis omnipotentis Dei. (3)

But it has generally been considered as having reference to the breaking and entering of private houses, and in that sense it is 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. (4)

The word burglar is supposed to have been introduced from Germany by the Saxons; and to be derived from the German, burg, a house, and larron, a thief: the latter word being from the Latin, latro (5). 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 effrin

(1) R. v. Ogden, L. & C. 288.

(2) R. v. Johnson U. C. Q. B., 569.

(3) 3 Inst. 63.

(4) 4 Bl. Com. 224; Hawk. P. C., c. 38, s. 1; 2 East, P. C. 484. (5) Burns Just. Tit. Burglary, sec. 1.

gunt, 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 Canute and of Henry I., to have been punished with death. (1)

Originally the circumstance of time does not seem to have been material; and the malignity of the offence was supposed to consist entirely in the invasion on the right of habitation, to which the laws of England have always shewn special regard.

The learned editor of Bacon's abridgement says that his researches had not enabled him to discover at what particular period time was first deemed essential to the offence, but that it must have been so settled before the reign of Edward VI. (2)

There is no material difference between the above description or definition of burglary and that contained in article 410, post. A verbal change, however is necessary, on account of the abolition of the distinction between felony and misdemeanor. The general definition of burglary, therefore, will now stand thus,-A breaking and entering of a dwelling-house, by night with intent to commit an indictable offence therein. Clause (b), of article 410, however, makes it burglary, also, to break out of a dwelling-house, by night, after having committed an indictable offence therein or after having entered it with intent to commit an indictable offence therein.

407. Meanings of terms. In this part, the following words are used in the following senses :

(a.)" Dwelling-house" means a permanent building the whole or any part of which is kept by the owner or occupier for the residence therein of himself, his family or servants, or any of them, although it may at intervals be unoccupied ;

(i.) A building occupied with, and within the same curtilage with any dwelling-house shall be deemed to be part of the said dwelling-house if there is between such building and dwellinghouse a communication, either immediate or by means of a covered and inclosed passage, leading from the one to the other, but not otherwise :

(b.) To "break means to break any part, internal or external, of a building, or to open by any means whatever (including lifting, in the case of things kept in their places by their own weight), any door, window, shutter, cellar-flap or other thing intended to cover openings to the building, or to give passage from one part of it to another;

(i.) An entrance into a building is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by him, is within the building ;

(ii) Every one who obtains entrance into any building by any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, shall be deemed to have broken and entered that building. R.S.C., c. 164, s. 2.

(1) 1 Hale, 547, citing Spelm. Gloss. Tit. Hamsecken and Burglaria. (2) 1 Bac. Ab. Tit. Burglary, 551; 3 Inst. 65.