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may also be committed by breaking the gates or walls of a town in the night (w); though that perhaps sir Edward Coke would have called the mansion-house of the garrison or corporation. Spelman defines burglary to be, “nocturna diruptio alicujus *habitaculi, vel ecclesiae, [ *225) etiam murorum portarumve burgi, ad feloniam perpetrandam." And therefore we may safely conclude, that the requisite of its being domus mansionalis is only in the burglary of a private house : which is the most frequent, and in which it is indispensably necessary to form its guilt, that it must be in a mansion or dwelling-house. For no distant barn, warehouse, or the like, are under the same privileges, nor looked upon as castle of defence, nor is a breaking open of houses wherein no man resides, and which therefore for the time being are not mansion-honses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath only left for a short season, animo revertendi, is the object of burglary, though no one be in it at the time of the fact committed (w). And if the barn, stable, or warehouse, be parcel of the mansion-house and, within the same common fence (y), though not under the same roof or contiguous, a burglary may be comınitted therein ; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall (2). A chamber in a college or an inn of court, where each inhabitant hath a distinct property, is, to all other purposes as well as this, the mansion-house

(20) Spelm. Gloss. t. Burglary, 1 Hawk. P. C. (y) K. v. Garland, P. 16 G. III. by all the judges. 103.

(2) I Hal. P. C. 558. 1 Hawk. P. C. 104. (z) i Hal. P. C. 566. Fost. 77. deemed his dwelling-house, until he has taken it will still be his ma ion. As, if a man has possession and began to inhabit it. i Leach, a house in town, and another in the country, 185. Nor will it make any difference, if one and goes to the latter in the summer, the noctur. of the workmen engaged in the repairs, sleep nal breaking into either, with a felodious de. there, in order to protect it. I Leach, 186. in sign, will be burglarious. Fost. 77. And, notis. Nor, though the house is ready for the though a nan leaves his house, and never means reception of the owner, and he has sent his to live in it again, yet if he uses part of it as a property into it preparatory to his own remo- shop, and lets a servant and his family live and val, will it become for this purpose, his man sleep in another part of it, for fear the place sion. 2 Leach, 771. And where the owner should be robbed, and lets the rest to lodgers, has never, by himself or by any of his family, the habitation by his servant and family will slept in the house, it is not his dwelling-house, be a habitation by him, and the shop may still 80 as to make the breaking therenf burglary, be considered as part of his dwelling-house. though he has used it for his meals, and all 1 Burn J. 24th edit. 503. Russ. & Ry. C. C. the purposes of his business. Russ. & Ry. 442. S. c. But in an indictment for larceny C. C. 138. So, if the landlord of a house pur. from a dwelling-house, where the prosecutor chase the furniture of his out-going tenant, left his house without any intention of living and procure a servant to sleep there, in order in it again, and intending to use it as a ware to guard it, but without any intention of mak. house only, though he bad persons (not of his ing it his own residence, á breaking into the family) to sleep in it to guard the property, i: house will not amount to burglary.°2 Leach, was beld, it could not be considered the pro876. But if the agent of a pubiic company secutors dwelling house, to support the charge. reside at a warehouse belonging to his em Russ. & Ry. C. C. 187. And if the occupier ployers, this crime may be committed by break. of a house removes from it with his whole faing it, and he may be considered as the owner. mily, and takes away so much of his goods as 2 Leach, 931. And it seems that if a man die to leave nothing fit for the accommodation of in his house, and his executors put servants in inmates, and has no settled idea of returnir.g it, and keep them there at board wages, bargla- to it, but rather intends to let it, the offence vy may be committed in breaking it, and it may will be merely larceny. Fost. 76. And the be laid to be the executors' property, 2 East, mere casual use of a tenement will not sufP. C. 499.

fice; and, therefore, the circumstance of a It seems quite settled, as above observed, servant sleeping in a barn, or porter in a warethat the proprietor of the house need not be ac- house, for particular and temporary purposes, tually within it, at the time the offence is com. will not so operate as to make a violent entry mitted, provided it is one of his regular places in the night, in order to steal, a burglury. 1 of abode. For if he leaves it animo reverlendi, Hale 567, 8. though no person resides there in his absence,

of the owner (6) Só also is a room or lodging, in any private house, the mansion for the time being of the lodger; if the owner doth not himselí dwell in the house, or if he and the lodger enter by different outward doors. But if the owner himself lies in the house, and hath but one outward door at which he and his lodgers enter, such lodgers seem only to be inmates and all their apartments to be parcel of the one dwelling-house of the owner (6). Thus too' the house of a corporation, inhabited in seperate apartments by the officers of the body corporate, is the mansion-house of the corporation, and not of the respective officers (c). But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie there ;

it is no dwelling-house, nor can burglary be committed therein ; for [*226] by the lease *it is severed from the rest of the house, and there

fore is not the dwelling-house of him who occupies the other part: neither can I be said to dwell therein, when I never lie there (d). Neither can burglary be committed in a tent or booth erected in a market or fair ; though the owner may lodge therein (e); for the law regards thus highly nothing but permanent edifices ; a house or church, the wall or gate of a town; and though it may be the choice of the owner to lodge in so fragile å tenement, yet his lodging there no more makes it burglary to break it open, than it would be to uncover a tilted waggon in the same circumstances.

3. As to the manner of committing burglary : there must be both a breaking and an entry to complete it. But they need not be both done at once : for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars (f). There must in general be an actual breaking ; not a mere legal clausum fregit (by leaping over invisible ideal boundaries, which may constitute a civil trespass), but a substantial and forcible irruption. As at least by breaking, or taking out the glass of, or otherwise opening, a window : picking a lock, or opening it with a key ; nay, by lifting up the lateh of a door, or unloosing any other fastening which the owner has provided (15). But 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 : yet, if he afterwards unlocks an inner or chamber door, it is so (p) (16). But to come down a chimney is (a) 1 Hal. P. C. 556.

(e) I Hawk. P. C. 104. (b) Kel. 84. 1 Hal. P. C. 536.

I Hal. P. C. 553. (c) Foster, 38, 39.

(8) Ibid. (d) I Hal. P. C. 558.

(15) So to push open massive doors which c. 157. And it is to be observed, that even shut by their own weight, is burglarious, when the first entry is a mere trespass, being though there is no actual fastening. 2 East, as per janua aperta, if the thief afterwards P. C. 487. Pulling down the sash of a win. breaks open any inner room, he will be guilty dow is a breaking, though it has no fastening, of burglary i 'Hale, 553: and this may be and is only kept in its place by the pulley done by a servant who sleeps in an adjacent weight; it is equally a breaking, although roon, unlatching his master's door, and enter. there is an outer shutter which is not put to. ing his apartment, with intent to kill him. 1 Russ. & Ry. C. C. 451. And where a win. Hale, 344. But lord Hale doubts whether a dow opens upon hinges, and is fastened by a guest at an inn is guilty of burglary by rising wedge, so that pushing against it will open it, in the night, opening his own door, and steal. forcing it open by pushing against it is suffi

. ing goods from other rooms. 1 Hale, 554. cient to constitute a breaking. Russ. & And it seems certain that breaking open a C. C. 355. But where the prisoner broke out chest or trunk, is not in itself burglarious, of a cellar by lifting up a heavy flap, by which Fost. 108, 9: and according to the better opi the cellar was closed on the outside next the nion, the same principle applies to cupboards, street ; the Alap was not bolted, but it had presses, and other fixtures, which, though atbolts. Six of the learned judges were of tached to the freehold, are intended only the opinion that there was a sufficient breaking better to supply the place of move able deposi. to constitute burglary; the remaining six tories. Fost. 109. were of a contrary opinion. Russ. & Ry. C. (16) It will be larglary to unlatch an inner

neld a burglarious entry; for that is as much closed as the nature of things will permit (k). So also to knock at the door, and upon opening it to ruski in, with a felonious intent: or under pretence of taking lodgings, to fal upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house ; all these entries have been adjudged burglarious,

hough there was *no actual breaking; for the law will not suf- [*227) fer itself to be trifled with by such evasions, especially under the cloak of legal process (i). And so, if a servant opens and enters his master's chamber-door with a felonious design; or if any other person lodging in the same house or in a public inn, opens and enters another's: door, with such evil intent, it is burglary. Nay, if the servant conspires with a robber and lets him into the house by night, this is burglary in both (k); for the servant is doing an unlawful act, and the oppurtunity afforded him of doing it with greater ease, rather aggravates than extenuates the guilt. As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient ; as to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries (1) (17)." The entry may be before the breaking, as well as after : for by statute 12 Ann. c. 7. if a person enters into the dwelling-house of another, without breaking in, either by day or by night, with intent to commit felony, or being in such a house, shall commit any felony; and shall in the night break out of the same, this is declared to be burglary; there having before been different opinions concerning it: lord Bacon (m) holding the affirmative, and sir Matthew Hale (n) the negative. But it is universally agreed, that there must be both a breaking, either in fact or by implication, and also an entry, in order to complete the burglary (18). with a felonious intent, otherwise it is only a trespass. And it is the same,

4. As to the intent; it is clear, that such breaking and entry must be whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, *a murder, (*228] a rape, or any other felony, is burglary; whether the thing be actual ly perpetrated or not. Not does it make any difference, whether the of fence were felony at common law, or only created so by statute ; since' that statute which makes an offence felony, gives it incidentally all the properties of a felony at common law (0) (19).

(!) I Hal. P. C. 555. 1 Hawk. P. C. 103. Fost.

(h) 1 Hawk. P. C. 102. I Ha). P. C. 552. (6) 1 Hawk. P. C. 102.

(k) Stra. 881. I Hal. P. C. 553. 1 Hawk. P. C. 103.

108.

(m) Elm. 65.
(-) 1 Hal. P. C. 534.

door with a felonious intent, and whatever however, an instrument has been thrust into would be a breaking of an outer door, will also the window, not for the purpose of taking out be a breaking of an inner door to constitute property, but only calculated to form the aper burglary. See 2 East, P. C. 488.

tore, this will not be regarded as an entry, 1 But it does not seem to be a burglary to Leach, 406; or if a house be broken open, break the dours of cupboards, presses, and and the owner through the fear occasioned by closets. Ibid.

the circumstance, throw out his money, the (17) So if the prisoner breaks open a shop burglary will not be completed. I Hale, 555. window, and with his hand takes out goods, It seems doubtful whether shooting through a the offence is complete. Fost. 107. Russ. & window is sufficient, by the entry of the shot Ry. C. C. 499. S. P: Introducing the hand discharged ; but it seems the better opinion between the glass of an outer window and an that it is; as in this case, a felony by killing inner shutter is sufficient entry to constitute is as much attempted, as in the introduction burglary. Russ. & Ry. C. Č. 341. And of an instrument, a felony by stealing is at where several having broken open a house, tempted. I Hale, 555. Hawk. b. 1. c. 38. s. and attempting to enter, are opposed by the See 4 Camp. 220. 1 Stark. 58. owner and in making a pass at him the hand (18) The act now in force is 7 & 8 Goo fone of the party is within the threshold, he IV. c. 27. will be guilty of burglary. 1 Hale, 553. If,

Thus much for the nature of burglary; which is a felony at common law, but within the benefit of clergy. The statutes however of 1 Edw. V1. c. 12. and 18 Eliz. c. 7. take away clergy from the principals, and that of 3 & 4 W. & M. c. 9, from all abettors and accessaries before the fact (P) (20). And in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime (9).

CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

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The next and last species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace ; larceny, and malicious mischief : and one, that is equally injurious to the rights of property, but attended with no act of violence ; which is the crime of forgery. Of these three in their order."

I. Larceny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person (1). (0) I Hawk. P. C. 105.

be single felony, and punished with transportation (pj Burglary in any house belonging to the plate for seven years (21). glass company, with intent to steal the stock or (9) Pott. Antiq. b. 1, c. 26. utensilo, is by statute 13 Geo. III. c. 38. declared to

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(19) But if a servant, intrusted by his mas. was before the commencement of this Act; ter to sell goods, receives money to his use, and every court, whose power as to the trial conceals it in the house instead of paying it of larceny was before the commencement of over, and after his dismissal, breaks the house this Act limited to petty larceny, shall have and steals it, the entry is not burglarious, be- power to try every case of larceny, the punishcause there was no felony in the original tak- ment of which cannot exceed the punishment ing. I Show. 53. And even where prisoners hereinafter mentioned for simple larceny, and were proved to have broken open a house in also to try all accessaries to such larceny." the night time, to recover teas seized for want By 9 3, every person convicted of simple of a legal permit, for the use of the personlarceny, or of any felony thereby made punish from whom they were taken, an indictment for able like simple larceny, shall (except in the burglary with intent to steal, was holden not cases thereinafter otherwise provided for) be to be supported. 2 East, P. C. 510.

liable to transportation for seven years, or im(20) All repealed by 7 & 8 Geo. IV. c. 27. prisonment not exceeding two years; and, if a (21) Re-enacted by 33 Geo. III. c. 17, Ø male, to one, two, or three public whippings; 33.

and by 04, where the sentence is imprisonment, (1) By statute 7 and 8 Geo. IV. c. 29, $ 2, the courts have a discretionary power to it is enacted, “ That the distinction between award hard labour or solitary confinement in grand and petty larceny stall be abolished, addition. This observation has been intro. and every larceny, whatever be the value of duced here that the reader may observe, how the property stolen, shall be deemed to be of far the present provisions of the law vary from the same nature, and shall be subject to the the text, in his progress through this impor ame incidents in all respects as grand larceny lant chapter, and to remind him that the cable

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And, first, of simple larceny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise (2). I shall therefore first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny then is “the felonious taking, and carrying away, of the personas goods of another. This *offence certainly [*230] commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his present use, seems to be the only offence of this kind incident to such a state.

But unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen (a), any violation of that property is subject to be punished by the laws of society : though how far that punishment shall extend, is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition. 1. It must be a taking (3es This implies the consent of the owner to

(a) See Book II. p. 8, &c. distinctions between grand and petty larceny grand larceny. Stealing public records, &c, are now entirely abolished.

is also the same offence : whether the thief By $ 61, in every felony punishable under be the officer having custody of them or an this Act, every principal in the second degree, other; any other than such officer may, how. and every accessary before the fact, shall be ever, be punished by fine, or by imprisonment punishable with death, or otherwise, in the in a state.prison or county jail, or by fine and same manner as the principal in the first degree; imprisonment. (Ib. 680.) See ib. as lo value and every accessary after the fact, (except only of property stolen. a receiver of stolen property.) shali on convic- (3) 'The cases upon this important requisite tion be liable to imprisonment for any term not of the offence of larceny are so numerous, exceeding two years; and every person aiding, and the distinctions so subtle, that it will be abetting, counselling, or procuring the commis necessary to go into considerable detail to give sion of any misdemeanor punishable under a complete view of the law upon the subject. this Act, shall be liable to be indicted and pu. See in general, 3 Chit. Crim. L. 2 ed. 917 to nished as a principal offender. As to the 924. venue in cases of larceny, see 7 Geo. IV. c. 64, Ist. When offender lawfully acquired the posss. 12 and 13.

session of goods, but under a bare charge, the (2) In New York, the stealing, taking, and owner still retaining his property in them, the carrying away the personal property of an- offender will be guilty of larceny at common other of the value of 25 dollars or under, is law in erbezzling them. Thus in addition to petit larceny, and punishable by imprisonment the instances put by the learned author, of the in a county jail not more than six months, and butler, the shepherd, and guest at an inn, if a by fine not more than 100 dollars. Grand lar- master deliver property into the hands of a ceny is seloniously taking and carrying away servant for a special purpose, as to leave it at personal property worth more than 25 dollars, the house of a friend, or to get change, or de. and is punishable by imprisonment in a state posit with a banker, the servant will be guilty prison for not more than 5 years. But if grand of felony in applying it to his own use, for it larceny be committed in a dwelling house, still remains in the constructive possession of ship, or other vessel, the imprisonment may its owner. 2 Leach, 870. 942; and see 2 be for 8 years : if committed in the night, and East P. C. 563. sed vide East P. C. 562. R. from the person of another, it may be for 10 & R. C. C. 215. 4 Taunt. 258. S. C. years. (2 R. S. 690, 1: and 679, 6, 63, &c.) banker's clerk is sent to the money-room to The severing from the soil of another, pro- bring cash for a particular purpose, and he Juce growing thereon worth more than 25 takes the opportunity of secreting som for dollars, or from any building, gate, fence, or his own use, I Leach, 344. he is guilty of lar. other railing or enclosure, any part thereof, ceny, and see I Leach, 251. Kel. 33. Cowp or any material of which it is formed of like 294. And if several persons play together 1: value, and taking and converting the same to cards, and deposit money for that purpose, nus one's own use with intent to steal, is also parting with iheir property therein, and ono Vol. II

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