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TR E A TISE

ON

CRIMES

AND

INDICTABLE

MISDEMEANORS.

IN TWO VOLUMES.

VOL. II.

SECOND EDITION,
WITH CONSIDERABLE ADDITIONS.

BY WILLIAM OLDNALL RUSSELL, Esq.

OF LINCOLN'S INN, SERJEANT AT LAW.

LONDON:
JOSEPH BUTTERWORTH AND SON,
LAW-BOOKSELLERS, 43, FLEET-STREET.

J. AND T. CLARKE, PRINTERS, ST. JOHN-SQUARE, LONDON.

А

TREATISE

ON

Crimes and Misdemeanors.

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 of Definition of burglary may be committed by the felonious breaking and entering the offence. of a church, and the walls or 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 enquiry 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

(a) Staundf. P. C. 30. 22 Ass. pl. 95. Britt. c. 10. Dalt. c. 99. Crom. 31. Spelm, in verb. 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 counte

VOL. II.

nanced by the more ancient authors; and that the general tenor of the old books seeins to be that burglary may be committed in breaking houses, or churches, or the walls, or gates of a town. I Hawk. P. C. c. 38. s. 17. And in 4 Black. Com. 224. it is stated that breaking open a church is undoubtedly burglary.

A breaking and entering are both necessary.

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 bc executed or not. (b)

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.

(6) 3 Inst. 63. i Hale 549. Sum. 79. 1 Hawk. P. C. c. 38. s. I, 4 Black. Com. 224. 2 East. P. C. c. 15. s. ). p. 484. 1 Burn. Just. 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, and larron, a thief; the latter word being from the Latin, latro. 1 Burn. Just. 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 Canulus, and of H, 1. to have been punishable with death. LI. Canuti, c. 61. Hen. I. c. 13. 1 Hale, 547. citing Spelm. Gloss. tit. Hamsecken, and ibid. tit. Burglaria. Orin ginally, 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 which the laws of

England have always shewn an especial regard, herein agreeing with ihe sentiments of ancient Rome, as expressed in the words of Cicero : Quid enim sanctius, quid omni religione munilius, quàm domus uniuscujusque civium ? Hic arce sunt, hic foci-hoc perfugium est ita sanctum omnibus, ut inde abripi neminem fas sit. The Icarncd editor of Bacon's Abridgment 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 scttled before the reign of E. VI. 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. Burglary, 539. (ed. 1807.) And see 3 Inst. 65.

(c) | Hawk. P. C. c. 38. S. 3. 1 Hale 551. 4 Black. Com. 226.

(d) 3 Inst. 64, I Hawk. P. C. c. 36. s. 4. 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 Black. Com. 226.

na window which heavy gratings oner got into the a suffici

An actual breaking of the house may be by making a hole in Of an actual the wall; by forcing open the door ; by putting back, picking, or breaking. 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 putting back the leaf of a window, with an instrument. And even the drawing or lifting up the latch, 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. (f)

Thus where a window opening upon hinges, is fastened by a wedge, so that pushing against it will open it, and such window be forced open by pushing against it, there will be a sufficient breaking. It appeared that 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. He was convicted; and upon a case reserved, the Judges held the forcing open the window to be a sufficient breaking, and that the conviction was right.(8) 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. (h)

It was doubted on one occasion whether a thief, getting into a house by creeping down the chimney, could be found guilty of burglary, as the house, being open in that part, could not be said to have been actually broken ; (i) but it was afterwards agreed that such an entry into a house will amount to a breaking, on the ground that the house is as much closed as the nature of things will permit. (K)

And it has lately been decided, that getting into the chimney of a house is a sufficient breaking and entering to constitute burglary, though the party does not enter any of the rooms of the house. The prisoner got in at the top of a chimney, and got down to just above the mantle-piece of a room on the ground floor. A case was reserved upon the question, whether this was a breaking and entering of the dwelling-house ; and two of the judges thought it was not, because the party could not be considered as being in the

(f) i Hale 552. 3 Inst. 64. Sum, some others; but that upon examina80. 1 Hawk. P. C. c. 38. s. 6. 2 East. tion it appeared that in the creeping P. C. c. 15. s. 3. p. 487.

down of the prisoner, some of the (g) Rex v. Hall, East. T. 1818. bricks of the chimney were loosened, Russ. & Ry. 355.

and fell down in the room, which put (h) Rex v. Haines and Harrison, it out of question ; and direction was East. T. 1821. Russ. & Ry. 451. given to find it burglary.

(i) i Hale 552, where the learned (k) Crompt. 32 (b) Dalt. 253. 1 author says that he was doubtful Hawk. P. C. c. 38, s. 6. 2 East, P. C. whether it was burglary, and so were c. 15. s. 2. p. 485.

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