into the yard was through a pair of gates which opened into a covered way; over this way were some of the warehouses, and there was a loop-hole and crane over the gates to admit of goods being craned up; and there was also a trap door in the roof of the covered way; there was free communication from the warehouses to the dwelling-house: the prisoners broke open the gates in the night with intent to steal, and entered the yard, but did not enter any of the buildings; and, upon a case reserved, the Judges were unanimous that the outward fence of the curtilage, not opening into any of the buildings, was no part of the dwelling-house, and the prisoners were discharged. (k) So an area gate opening into the area only is not such part of the dwelling-house, that the breaking of the gate will be burglary, if there be any door or fastening to prevent persons in the area from entering the house, although such door or other fastening may not be secured at the time. The prisoners opened an area gate in a street in London, and entered the house through a door in the area which happened to be open, but which was always fastened when the family went to bed, and was one of the ordinary barriers against thieves. Having stolen in the house to the value only of thirty-nine shillings, a question was made whether the breaking the area gate was breaking the dwelling-house so as to constitute burglary, and as there was no free passage in time of sleep from the area into the house, the Judges held unanimously that the breaking was not a breaking of the dwelling-house. (7) (k) Rex v. Bennett and another, Hil. T. 1815, MS. Bayley, J., and Russ. & Ry. 289. (1) Rex v. Davis and another, Hil. T. 1817, MS. Bayley, J., and Russ. & Ry. 322. Punishment. Principals in the second degree and accessories. CHAPTER THE SEVENTH. OF BREAKING, &c. AND STEALING IN ANY SHOP, WAREHOUSE, OR COUNTING-HOUSE. THE 7 and 8 Geo. 4. c. 29. s. 15. enacts, "that 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 hereinbe"fore last mentioned." By the clause here referred to (s. 14.) the offender is liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such impri sonment. Principals in the second degree, and accessories before the fact, are punishable in the same manner as principals in the first degree and accessories after the fact (except receivers) are liable to be imprisoned for any time not exceeding two years. (a) (a) See the Act, s. 61., Addenda to this volume. As to the proceedings for the trial, &c. of accessories, see 7 Geo. 4. c. 64. ss. 9, 10, 11. Addenda to the first volume. CHAPTER THE EIGHTH. OF ROBBERY FROM THE PERSON. ROBBERY from the person appears to be well defined as a felo- Definition of ❝nious taking of money or goods of any value from the person of the offence. "another, or in his presence, against his will, by violence, or 66 putting him in fear." (a) c. 29. s. 6. This offence is subject to capital punishment. The 7 & 8 Geo. 7 & 8 Geo. 4. 4. c. 29. s. 6. enacts, "that if any person shall rob any other per"son of any chattel, money, or valuable security, every such of"fender, being convicted thereof, shall suffer death as a felon." And by the general provisions of s. 61. principals in the second degree, and accessories before the fact, are punishable with death as the principals in the first degree and accessories after the fact (except receivers of stolen property) are liable to imprisonment for two years. (b) This statute provides also for the punishment of offenders who steal from the person, under circumstances which do not amount to robbery. (c) It also enacts, "that if any person shall assault "any other person with intent to rob him, or shall with menaces "or by force demand any such property of any other person with "intent to steal the same, every such offender shall be guilty of "felony, and being convicted thereof, shall be liable, at the dis"cretion of the court, to be transported beyond the seas for life or "for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall "so think fit) in addition to such imprisonment." The statute has been passed since the publication of the first volume of this work, or this enactment would have been introduced in the section upon aggravated assaults. (d) 66 An important provision is contained in the 7th section of the Robbery by 7 & 8 Geo. 4. c. 29. which declares and enacts "that if any 66 person shall accuse, or threaten to accuse any other person of any infamous crime as thereinafter defined, with a view or in (a) 2 East. P. C. c. 16. s. 124. p. 707. Hickman's case, 1 Leach 280. 4 Black. Com. 243. 1 Hawk. P. C. c. 34. Hale 532. 3 Inst. 68. (b) See the stat. in the Addenda; and as to proceedings against accesso ries, see 7 Geo. 4. c. 64. ss. 9, 10, 11. (c) Post Chapter, Of Stealing from (d) Ante, vol. 1. p. 616. threats. Of the felonious taking. value of the "tent to extort or gain from him, and shall, by intimidating him "by such accusation or threat, extort or gain from him any chat"tel, money, or valuable security, every such offender shall be "deemed guilty of robbery, and shall be indicted and punished "accordingly." The statute then provides for the punishment of persons sending threatening letters, or threatening to make accusations with a view to extort money, &c. which enactment will be noticed in a subsequent part of this work. (e) It then proceeds to define what shall be deemed an infamous crime. The 9th section is in these words: "And for defining what shall be an infamous crime within "the meaning of this act, be it enacted, that 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 endeavour 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.' Recurring to the foregoing definition of this offence, and keeping in mind that robbery is an aggravated species of larceny, (f) we may inquire, first, as to the felonious taking; secondly, as to the taking against the will of the party; and, thirdly, as to the violence, or putting in fear. 1. As to the felonious taking. The taking may be of money or goods "of any value." The Amount of the value therefore, of the property taken is quite immaterial: a penny as well as a pound, forcibly extorted, makes a robbery; the gist of the offence being the force and terror. (g) But something must be taken, and it must be of some value; (h) otherwise the offence will be only that of an assault with intent to rob. (i) property immaterial. But it must be of some value, and taken from the peaceable possession of the owner. The property taken must not only be of some value, but it must be taken from the peaceable possession of the owner. In a case where the prisoner had obtained a note of hand from a gentleman by threatening with a knife held to his throat to take away his life; and it appeared that she had furnished the paper and ink with which it was written, and that the paper was never out of her possession; it was holden not to be robbery. The Judges were of opinion that the note was of no value; that as the legislature at the time of passing the statute 2 Geo. 2. c. 5. s. 3., whereby the stealing a chose in action was made felony, could not possibly have a case like this in contemplation, it was not within that act of parliament; that the note did not, on the face of it, import either a general or a special property in the prosecutor ; (e) Post. Book 5. Of Threats, &c. M. c. 4. s. 1. (g) 3 Inst. 69. 1 Hale 532. 1 Hawk. P. C. c. 34. s. 16. 4 Black. Com. 243. 2 East. P. C. c. 16. s. 125. P. 707. (h) Phipoe's case, 2 Leach 673, 680. (i) Ante, 61. and that it was so far from being of any the least value to him, that he had not even the property of the paper on which it was written, as it appeared that both the paper and ink were the property of the prisoner, and the delivery of it by her to the prosecutor could not, under the circumstances, be considered as vesting it in him; but that if it had, as it was a property of which he was never, even for an instant, in the peaceable possession, it could not be considered as property taken from his person, so as to constitute the crime of robbery. (j) By the "taking," necessary in this offence, is implied that the robber must be in possession of the thing taken. So that if a man, having a purse fastened to his girdle, be assaulted by a thief, and the thief, in order the more easily to take the purse, cut the girdle, and the purse thereby fall to the ground, this is no taking; for the thief never had the purse in his possession. (k) And, upon the same principle, in a case where it appeared that the prisoner stopped the prosecutor as he was carrying a feather-bed on his shoulders, and told him to lay it down or he would shoot him, and the prosecutor accordingly laid the bed on the ground, but the prisoner was apprehended before he could take it up so as to remove it from the spot where it lay; the Judges were of opinion that the offence of robbery was not completed. (7) But if in the former case the thief had taken up the purse from the ground, and afterwards let it fall in the struggle, this would have been a taking, though he had never taken it up again; for the purse would have been once in his possession. (m) And it is not necessary that the property should continue in the possession of the thief. Thus, where a robber took a purse of money from a gentleman, and returned it to him immediately, saying, "If you value your purse, you will please to take it back, and give me the contents of it;" but was apprehended and secured before the gentleman had time to give him the contents of the purse; the court held that there was a sufficient taking to complete the offence, although the prisoner's possession continued only for an instant. (n) And in a case where, while a lady was stepping into her carriage, the prisoner snatched at her diamond ear-ring, and separated it from her ear by tearing the ear entirely through; but there was no proof of the ear-ring ever having been seen in his hand, and, upon the lady's arrival at home, it was found amongst the curls of her hair; the Judges, upon the case being submitted for their consideration, were all of opinion, that there was a sufficient taking from the person to constitute robbery. They thought that it was sufficient, as the ear-ring was in the possession of the prisoner separate from the lady's person, though but for a moment, and though he could not retain it, but probably lost it again the same instant. (o) It should, however, be observed, with respect to cases of this de (j) Phipoe's case, 2 Leach 673. The form of the note was-"Two months "after date I promise so pay to Miss "Maria Theresa Phipoe, or order, the "sum of two thousand pounds ster"ling, for value received. - John Courtoy, Oxendon-street." 66 (k) 3 Inst. 69. Hale 533. (1) Farrell's case, O. B. 1787, 1 |