Mathew Boulton was concerned in different manufactories, that is to say, with John Hodges, as manufacturers of plated goods; with William Nelson and John Bonus, as button makers; with James Smith and Benjamin Smith, as buckle makers; with Mathew Robinson Boulton, James Watt, and Gregory Watt, as engine makers. Besides which Mathew Boulton carried on two other manufactories on his own sole account. It farther appeared that the money and part of the silver were kept in a countinghouse, which was used for transacting the money concerns, and keeping the accounts of all the different businesses in which Mathew Boulton was engaged; that other part of the silver was in a room, being one of several where the plate business was carried on, which rooms and counting-house formed a centre, having two wings adjoining, consisting of a dwelling-house inhabited by persons engaged in Mathew Boulton's manufactories; that one of them was inhabited by Mathew Robinson Boulton, but that had no internal communication with the centrebuilding at the time of the offence being committed, a room in his house which communicated with the centre-building having been allotted to the purposes of the plating business, with which he had nothing to do, the door into it was shut up, and a working bench placed against it so as to stop the passage; that one Bush, a workman of Mathew Boulton, occupied another of the dwelling houses in the same wing, and from his house there was no way into the centre-building, but there was in it a window which looked into a passage that ran the whole length of the centre-building; that in the other wing was the dwelling-house of William Nelson, the partner of Mathew Boulton in the button business, which had no internal communication with the centre, and in that wing other persons lived; that in the front of this building was a terrace or front-yard fenced round in different ways, and at the end of the pile of building above described, by a wall with gates for horses and carriages, and a door for foot passengers. It further appeared that the prisoners had some time previous to the breaking into the centrebuilding applied to one Joseph Phillips, who was employed as a watchman to the manufactory at Soho, to assist them in robbing it, to which he assented, and informed first some of Mathew Boulton's servants and assistants, and afterwards Mathew Boulton himself of what was intended, of the manner and time they were to come, that they were to go into the countinghouse, and that he was to open the door into the front-yard to the prisoners; that Mathew Boulton told him to carry on the business; 1801. The KING v. EGGINTON and Others. 1801. The KING v. EGGINTON and Others. business; that Mathew Boulton was to bear him harmless, and that Mathew Boulton consented to his opening the door leading to the front yard, and to his being with the prisoners the whole time; that in consequence of this information Mathew Boulton removed from the counting-house every thing but 150 guineas and some silver ingots, which he marked, to furnish evidence against the prisoners, and lay in wait to take them when they should have accomplished their purpose; that on the 23d of December, about one o'clock in the morning, the prisoners came, and Phillips opened the door into the front-yard, through which they went along the front of the building, and round it into another yard behind it, called the middle-yard; and from thence they and Phillips went through a door, which was left open, up a stair-case in the centre-building leading to the counting-house and rooms where the plate-business was carried on; that this door the prisoners bolted, and then broke open the counting-house, which was locked, and the desks, which were also locked, and took from thence the ingots of silver and guithat they then went to the story above into a room where the plate-business was carried on, and broke the door open, and took from thence a quantity of silver, and returned down stairs, when William Foulds unbolted the door at the bottom of the stairs, which had been bolted on their going in, and went into the middle-yard, when all except William Foulds (who escaped) were taken by the persons placed to watch them. neas; On this case two points were made for the prisoners; 1st, that no felony was proved, as the whole was done with the knowledge and consent of Mathew Boulton, and that the acts of Phillips were his acts. 2dly, That if the facts proved amounted to a felony, it was but simple larceny, as the building broken into was not the dwelling-house of any of the persons whose house it was charged to be, and as there was no breaking since the door was left open. The jury found the prisoners guilty; but Lawrence, J., reserved the above points for the consideration of the Judges, before eleven of whom (absente Lord Eldon, then Lord Chancellor as well as Lord Chief Justice of the Common Pleas) it was argued on the 9th of May last. Clifford, for the prisoners, began by arguing the second objection. The place in which the offence was committed was so completely separated from the dwelling-house as not to be the subject of burglary. The case of The King v. Gibson, Mutton, and Wiggs, 1 Leach, 396. ed. 1800. which is the strong est est authority in support of the proposition that this offence is a burglary, is very distinguishable from the present. There the person in whom the property of the house was laid was the sole occupier of the house to which the shop in which the offence was committed was attached, though he had leased part of his house with the shop to another person. But here, though M. R. Boulton was the sole occupier of the adjoining house in the wing of the building, yet the centre-part, where the offence was committed, was separated from the wing, and neither belonged to nor was in the sole occupation of M. R. Boulton; but was in the joint occupation of the several partners in the business. It appears from 1 H. P. C. 557. that a separation of a shop from a mansion-house by lease is a sufficient separation in law to prevent the former from being the subject of burglary. Indeed in The King v. Martha Jones, 2 Leach, 607. ed. 1800. where the rent of a house is paid from the partnership fund of A. and B., the property, so as to constitute burglary, was held to be ill laid in both, the house being in the single occupation of B. Clearly in an ejectment brought for these premises, the demise would not have been well laid in M. R. Boulton, and if so the property is not well laid to support the offence of burglary. With respect to the 1st objection, the consent of the prosecutor removes all criminality from the prisoners. In almost every species of offence committed against the property of another, it is of the essence of the offence that it should be committed against the will of the owner. Bracton, lib. 3. tr. 2. c. 32. fo. 150. b. defines theft thus, contractatio rei alienæ fraudulenta cum animo furandi invito illo Domino cujus res illa fuerit: and Lord Ch. J. Willes, in The King v. Donally, 1 Leach, 232. ed. 1800. seems to take it for granted that robbery must be against the will of the owner, when he says, "Wherever one man obtains property from the possession of another against his will, the law presumes the act to proceed from a felonious intention." The prosecutor's assent to the commission of the crime would undoubtedly have made him an accessary before the fact, had it not been an assent to the stealing of his own property. In The King v. M'Daniel, Fost. 125. it is laid down as incontrovertible, "that whoever procureth a felony to be done is a felon; if present, he is a principal; if absent, an accessary before the fact;" and the statutes 4 & 5 Ph. & M. c. 4. and 3 and 4 W. & M. c. 9. are referred to; which, in describing the offence, speak of persons who "ma liciously 1801. The KING v. EGGINTON and Others. 1801. The KING v. EGGINTON and Others. liciously counsel, hire, command, comfort, aid, abet, or assist.” Sir Edward Coke, in his commentary on the statute of West. 1. c. 14. 2 Inst. 182. says, that under the word "aid" is comprehended all persons "assenting and consenting" to the act. Now in this case the prosecutor did assent and consent, and if his crime be done away by the circumstance of the property, to the stealing of which he assented, being his own, the same circumstance does away the crime of the prisoners also; for if this was a felony, the prosecutor is criminal as an accessary, and he can only shew himself not criminal as such by shewing that the prisoners committed no felony. Suppose Phillips the watchman had been indicted for the burglary, what could have prevented his being convicted of the crime but the assent of the prosecutor? Now that assent extends to all the persons concerned, and will operate to save the prisoners in the same way as it would have operated in his favour. To shew that without such assent Phillips must have been convicted, Joshua Cornwell's case, 10 Harg. St. Tr. 433. in the notes, may be referred to, where the opening the door of his master's house by the prisoner in the night-time, and letting in two persons to rob him, was adjudged by the twelve Judges to be burglary. In The King v. M'Daniel, all the prisoners were acquitted on account of the robbery having been committed in consequence of a previous agreement, and it is there said to be "of the essence of robbery and larceny that the goods be taken against the will of the owner." The only case in which the assent of the party robbed has been held not to take away the felony is that of Norden, cited in the judgment of The King v. M'Daniel, Fost. 129. but the answer to that case is there given, viz. that it was uncertain whether the robber would come or not, the officer having no concert with the highwayman, but only going upon the road in expectation of being robbed, and submitting to the robbery. In this case there was a regular plan for the robbery of the prosecutor's premises carried on through the intervention of the accomplice with the prosecutor himself. Manley, on the part of the prosecution. 1st, With respect to the burglary, it is not necessary that a communication should exist between the part broken into and the rest of the house; it is sufficient if the former be parcel of the latter and under the same roof; this point seems clearly established by the case of The King v. Gibson, Mutton, and Wiggs. Nor is it any objection that the place place where the offence was committed was used in the business of several other persons jointly with M. R. Boulton, for being under the same roof with his dwelling-house it may well be considered as parcel of that house. If one of the partners in a banking-house occupy the dwelling-house to which the shop belongs, and the shop be broken into, there can be little doubt that it would amount to a burglary in the dwelling-house of the partner residing there. The case of the King v. Martha Jones is distinguishable from the present, it being expressly stated there that the two houses were perfectly distinct and separate from each other at the time the offence was committed. 2dly, It has been argued, that if the offence of the prisoners amount to a felony the prosecutor has made himself an accessary to that felony by his conduct, and that if he be not an accessary it must be because no felony was committed. But the essence of the felony consists in the felonious intent. Thus Bracton in the place cited on the other side, after saying that theft must be committed cum animo furandi, adds, cum animo dico, quia sine animo furandi non committitur. The prosecutor therefore was not particeps criminis, inasmuch as his consent was only given for the purpose of promoting the detection of the prisoners. The present resembles Nordon's case, who went out with a view to be robbed in order that he might apprehend the robber. But in neither case was there any concert between the party committing the offence and the party on whom it was committed. Such also was the case of the man tried some little time back at Worcester Assizes, who being suspected of robbing in an inn there, a great-coat was placed in his way with a pocket-handkerchief hanging out of the pocket, and the man being watched and detected in stealing the handkerchief, was convicted before Mr. Baron Thompson, who overruled the objection that he was induced to commit the offence by the persons who placed the great-coat in his way. There is also a case in Fitzherbert's Justice of the Peace, by Crompton, Ed. 1617. p. 31. b. which is precisely in point. There the servant of an Alderman of London agreed with strangers to steal the plate of his master on a certain night in his house, and they had a false key of the place where the plate was kept; afterwards the servant revealed the design to his master, who on the appointed night had certain men ready at the place, et apres ils vient et enter in le dit lieu, with intent to steal the plate, and were taken and arraigned for burglary at Newgate, found guilty and hanged. The 1801. The KING v. EGGINTON and Others. |