CHAPTER THE SECOND. OF SACRILEGE, OR OF BREAKING ANY CHURCH OR CHAPEL, AND THE 23 Hen. 8, c. 1, and 1 Edw. 6, c. 12, which related to this offence, were repealed by the 7 & 8 Geo. 4, c. 27. But the 7 & 8 Geo. 4, c. 29, s. 10, enacted, "That if any person shall break and enter any church or chapel, and steal therein any chattel, or having stolen any chattel in any church or chapel shall break out of the same, every such offender being convicted thereof, shall suffer death as a felon." The 5 & 6 Wm. 4, c. 81, reciting the 36 Geo. 3, (I.) and 5 & 6 Wm. 4, the 52 Geo. 3, c. 143, relating to letter stealing, and that by the c. 81. 7 & 8 Geo. 4, c. 29, and the 9 Geo. 4, c. 55, "it is amongst other things enacted, that if any person shall break and enter any church or chapel, and steal therein any chattel, or having stolen any chattel in any church or chapel, shall break out of the same, every such offender, being convicted thereof, shall suffer death as a felon," (a) repealed "so much of each of the said acts as inflicts the punishment of death upon persons convicted of any of the offences therein and hereinbefore specified," and enacted, that "from and after the passing of this act (10th September, 1835,) every person convicted of any of the offences in the said act so specified, or of aiding or abetting, counselling, or procuring the commission thereof, shall be liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years.' The 6 & 7 Wm. 4, c. 4, reciting the 5 & 6 Wm. 4, 6 & 7 Wm. 4, c. 81, and that "by reason of a clerical error in copying the c.4. same, a doubt may be entertained, whether persons guilty of such offences are now by law liable to any punishment," enacts, that "the same act shall be read as if, instead of the words, in the said act so specified,' the words, in the said acts so specified,' had been inserted in the said act of the last session; and that all persons who may hereafter be duly convicted of any of the (a) The 9 Geo. 4, c. 55, s. 10, enacted that "if any person shall break and enter any church, meeting house, chapel, or other place of divine worship, and shall steal therein, or therefrom, any chattel, or having stolen any chattel in or from any church, meeting house, chapel, or other place of divine worship, shall break out of the same, every such offender being convicted thereof shall suffer death as a felon." The recital in the 5 & 6 Wm. 4, is so much narrower than the clause in the 9 Geo. 4, c. 55, that offences mentioned in the said act of the last session shall and may be sentenced, by the Court or judge by or before whom such offenders may be tried, to transportation for life, or for any term of years not less than seven, or to be imprisoned for any term not exceeding three years, with or without hard labour, and for any period of solitary confinement during such imprisonment, at the discretion of such Court or judge." But by the 1 Vict. c. 90, s. 5, after the 1st of October, 1837, "it shall not be lawful for any Court to direct, that any offender shall be kept in solitary confinement for any longer periods than one month at a time, or than three months in the space of one year." A larceny, therefore, committed in a church or chapel, accompanied with a breaking of such church or chapel, is no longer a capital offence, and the provisions of the 1 Edw. 6, c. 12, which made the felonious taking of any goods out of a church or chapel a capital offence, though there was no breaking, are not re-enacted. The tower of a parish church, having an internal communication with, and not being separated from the body of the church, is a part of the church within the meaning of the 7 & 8 Geo. 4, c. 29. Upon an indictment for breaking into a parish church, and stealing two surplices and a scarf, it appeared that the surplices and scarf were stolen from a box kept in the church tower; this tower was built higher than the church, and had a separate roof, but it had no outer door, the only way of going into it being through the body of the church, from which the tower was not separated by a door or partition of any kind: it was objected that the stealing these articles deposited in the tower was not sacrilege; but it was held that a tower, circumstanced as this tower was, must be taken to be part of the church, and that the stealing of these articles in the tower was a stealing in the church within the meaning of the 7 & 8 Geo. 4, c. 29, s. 10. (b) The word "chapel," in the 7 & 8 Geo. 4, c. 29, s. 10, means a chapel where the rites and ceremonies of the Church of England are performed, and does not include the chapels of Dissenters. Upon an indictment for breaking and entering a chapel, which, upon the evidence, turned out to be a Dissenting chapel; Gaselee, J., and Vaughan, B., were of opinion, that as Dissenting chapels were mentioned expressly in the 7 & 8 Geo. 4, c. 30, which makes the burning of churches, &c., a capital offence, and were not mentioned at all in the 7 & 8 Geo. 4, c. 29, s. 10, which stands in the statutebook, as the chapter next preceding it, the omission must have been intentional, and consequently that a Dissenting chapel was not within the 7 & 8 Geo. 4, c. 29, s. 10. (c) The words "any chattel," would probably be deemed to extend to articles in a church or chapel, though not used for divine service. The words "any goods," in the repealed statute 1 Edw. 6, c. 12, were held not to be confined to goods used for divine service, but to extend to articles used in the church to keep it in proper order; and it was considered that such articles were under the protection (b) Rex v. Wheeler, 3 C. & P. 585, Parke, J. J. (c) Rex v. Warren, 6 C. & P. 335, note (a); S. P. Rex v. Richardson, 6 C. & P. 335; Rex v. Nixon, 7 C. & P. 442, Patteson, J., and Gurney, B. It should seem that these cases are not applicable to the Irish act; see the section, ante, note (a). C. S. G of the statute, whilst the church was in a course of being repaired, if they had not been brought in merely for the purpose of such repairs. Whilst a church was being repaired, the prisoner stole from it a pot used to hold charcoal for airing the vaults, and a snatch-block, used to raise weights, if the bells wanted repair. These articles had been kept in the church for years, and were not brought in for the repairs which were then in progress. Upon a case reserved, the judges were unanimous that such goods were under the protection of the statute, and that a capital sentence ought to be passed upon the prisoner, as they thought that the violation of the sanctity of the place was what the statute was intended to prevent. (d) act. The word "chattel" does not include anything affixed to the Fixtures are freehold. Upon an indictment for breaking into a chapel, and not within the stealing a bell and divers other articles, it appeared that the bell was the only thing not fixed in the chapel, and it was held that the case must be confined to the stealing of the bell; for although the same statute, sec. 44, said that stealing fixtures might be the subject of larceny, yet it did not say that fixtures should be considered as chattels, which they must be to bring them within the section, upon which that indictment was founded. (e) The goods of a Dissenting chapel, vested in trustees, cannot be Statement of described as the goods of a servant, who has merely the care of the property. chapel and the things in it, to clean and keep them in order, though he have the key of the chapel, and no person except the minister have another key. (f) But books belonging to a society of Dissenters, and stolen from their chapel, may be described as the property of one of the members of the society by name " and others." Upon an indictment for stealing a bible and hymn-book, the property of J. Bennett and others, it appeared that the books had been presented to the Society of Wesleyan Methodists, from whose chapel they had been stolen, and they had been bound at the expense of the society; Bennett was one of the trustees of the chapel, and a member of the society, but no trust deed was produced; it was held that as Bennett was one of the society, the property in the books was well laid in him "and others.” (g) It has been holden that where the bells, books, or other goods belonging to a church are stolen, they may be laid in the indictment to be the goods of the parishioners. (h) And it is said, that he who takes away the goods of a chapel or abbey, in time of vacation, may be indicted, in the first case, for stealing bona capella, being in the custody of such and such; and, in the second, for stealing bona domús et ecclesia, &c. (i) By the 7 & 8 Geo. 4, c. 29, s. 61, (j) "in the case of every Principals in felony punishable under this act, every principal in the second the second degree, and every accessory before the fact, shall be punishable with accessories. (d) Rex v. Rourke, East. T. 1819, MS. Bayley, J., Russ. & Ry. 386. (e) Rex v. Nixon, 7 C. & P. 442, Patteson, J. (f) Rex v. Hutchinson, Russ. & Ry. 412, post, tit. Larceny. (g) Rex v. Boulton, 5 C. & P. 537, Parke, J. J. (h) Hale, 512. Hale, 81. 1 Hawk. P. C. c. 33, s. 45. 2 East, P. C. c. 16, (i) 1 Hale, 512. 2 Hale, 81. 1 Hawk. (j) Mr. Londsdale, Cr. L. 130, treats this section as repealed as far as relates to principals in the second degree and accessories before the fact, but subsisting as degree, and death, or otherwise, in the same manner as the principal in the first degree is by this act punishable; and every accessory after the fact, to any felony punishable under this act, shall, on conviction, be liable to be imprisoned for any term not exceeding two years." And by sec. 4, "where any person shall be convicted of any felony or misdemeanor punishable under this act, for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offenders to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also to direct that the offenders shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the Court in its discretion shall seem meet." (k) The proceedings for the trial of accessories are regulated by 7 Geo. 4, c. 64, ss. 9, 10, 11. (7) to accessories after the fact; but as the words are," any felony punishable under this act," and as sacrilege is not now punishable under the 7 & 8 Geo. 4, c. 29, it may be doubted whether accessories after the fact are punishable under this section. If they are not, it should seem that they are punishable under the 7 & 8 Geo. 4, c. 28, ss, 8 & 9, and 1 Vict. c. 90, s. 5, as for a felony, for which no punishment is specially provided. See note, ante, p. 116. C. S. G. (k) But see the 1 Vict. c. 90, s. 5, (ante, p. 844,) as to the limitation of solitary confinement. (1) Ante, p. 29, et seq. CHAPTER THE THIRD. OF HOUSE-BREAKING. BESIDES the nocturnal house-breaking, or burglary, which has been treated of in the first chapter of this book, the law of England, in its especial regard for the safety and security of the habitation of man, provided by several statutes (a) that the forcible invasion of the dwelling-house of another, or house-breaking, when accompanied with felony, should be liable to capital punishment, though committed in the day time. Persons break The ancient statutes upon this subject have been repealed by 7 & 8 Geo. 4, the 7 & 8 Geo. 4, c. 27. But the 7 & 8 Geo. 4, c. 29, s. 12, enacts, c. 29, s. 12. that "if any person shall break and enter any dwelling-house, and ing and ensteal therein any chattel, money, or valuable security, to any value tering a whatever," (b) every such offender being convicted thereof shall suffer dwellingdeath as a felon. house and stealing, &c. The 4 Wm. 4, c. 44, repealed this provision as far as related to 4 & 5 Wm. 4, the punishment of death, and sec. 61 of the same act, as to the pu- c. 44. nishment of principals in the second degree, and accessories before the fact, and enacted, that every person convicted of house-breaking as principals, or accessories before the fact, should be liable to be transported for life, or for not less than seven years, and previously to transportation imprisoned for not exceeding four years, nor less than one year, &c. The Vict. c. 90, s. 1, recites the 4 Wm. 4, c. 44, and 1 Vict. c. 90. repeals so much of that act "as relates to the punishment of any person convicted of the offence of breaking and entering any dwelling-house and stealing, as in that act mentioned," and enacts, that after the 30th of September, every person convicted of any such offence, "shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years." And by sec. 3, "it shall be lawful for the Court to direct such imprisonment to be with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretion shall seem meet." (a) 1 Edw. 6, c. 12, s. 39 Eliz. c. 15. 6, c. 9. 10. 5 & 6 Edw. 3 W. & M. c. 9. (b) The 9 Geo. 4, c. 55 (Irish Act), s. 12, is verbatim the same as this section. |