Upon an indictment for burglary and stealing, if it be proved that the prisoner broke and entered, but not in the night time, he may be convicted of housebreaking if any goods are stolen.(7) So on an indictment for house-breaking, if it be not proved that the prisoner broke into the house, he may be convicted of stealing therein to the amount of £5, if in fact he stole goods in the dwelling-honse to that amount; and if the value of the things stolen were under £5, he may be convicted of simple larceny.

Upon the trial of an indictment for house-breaking the jury may, under the 14 & 15 Vict. c. 100, s. 9, convict the defendant of an attempt to commit the same, and thereupon he may be punished as if he had been convicted on an indictment for such attempt.(m) But they can only convict of the attempt to commit the identical offence charged in the indictment. The prisoner was indicted for breaking and entering the dwelling-house of M. Fowler and stealing therein certain articles, his property. On the 11th of February all these articles were safe in the house: on the 19th the prisoner and another man were seen to unlock the door and enter the house the witness who saw this and another person went to the house, pushed open the door, and saw the prisoner coming down stairs; the other man came out of the kitchen and escaped, but the prisoner was secured about eighty yards from the house, and on him nothing was found except a skeleton key, with which he had unlocked the door. The other man had nothing in his hand, and nothing had been taken out of the kitchen. The rooms up stairs were all in confusion; indeed to such an extent as to make it quite impossible that all this could have been done by the prisoner and his companion during the time they had been in the house. the articles mentioned in the indictment were missing, and all, except an umbrella, had been taken from the rooms up stairs. The jury were of opinion that all the articles in question had been stolen, but by whom they could not say, before the prisoner so broke and entered the house. There were other goods of the prosecutor's still in the house, which might have been taken. The jury found the prisoner not guilty of the felony charged, but guilty of breaking and entering the house and attempting to steal the prosecutor's goods. Upon a case reserved, it was held that the conviction was wrong under the 14 & 15 Vict. c. 100, s. 9. The word "attempt" clearly conveyed with it the idea that if the attempt had succeeded, the offence charged would have been committed, and therefore the prisoner might have been convicted if any of the things mentioned in the indictment had been in the house; but attempting to commit an offence was clearly different from intending to commit it. An attempt must be to do that which, if successful, would amount to the offence charged; but here the attempt never could have succeeded, as the articles in question had already been removed from the house. (n)

*78]

*CHAPTER THE FOURTH.

OF STEALING IN A DWELLING-HOUSE, ANY PERSON THEREIN BEING PUT IN FEAR.

THE former enactments on this subject(a) are repealed, and by the 24 & 25 Vict. c. 99, s. 61, "Whosoever shall steal any chattel, money, or valuable security (b) in any dwelling-house, and shall by any menace or threat put any one being therein in bodily fear, (c) shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years-or to be imprisoned

(1) Rex v. Compton, 3 C. & P. 418 (14 E. C. L. R.), Gaselee, J. (m) See the section, ante, vol. 1, p. 1.

(n) Reg. v. M'Pherson, D. & B. 197.

(a) 3 W. & M. c. 29, s. 1, 7 & 8 Geo. 4, c. 29, s. 12, and 7 Will. 4, and 1 Vict. 86, s. 5. (b) As to what property is included in these words, see sec. 1, post, Larceny.

(c) The words in the 7 & 8 Geo. 4, c. 29, s. 12, were, fear," which might be without any menace or threat.

any person therein being put in C. S. G.

for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(d)

Principals in the second degree and accessories before the fact are punishable like principals in the first degree; and accessories after the fact (except receivers of stolen property) are liable to imprisonment for two years, by sec. 98, of the Act."(e)

Sec. 53 prevents any building, although within the same curtilage, from being deemed part of the dwelling-house, unless there be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage leading from one to the other. And the observations in the preceding chapter, upon questions which may arise as to what shall be deemed a dwelling-house, will apply to the offence now under consideration. It is clear that no breaking of the house is necessary to constitute this offence; and it should seem that property might be considered as stolen in the dwelling-house within the meaning of the statute, if a delivery of it out of the house should be obtained by threats, or an assault upon the house by which some person therein should be put in fear.(ƒ) But questions of difficulty may perhaps arise as to the degree of fear which must be excited by the thief. Where, however, the prosecutor, in consequence of the threat of an armed mob, fetched provisions out of his house and gave them to the mob, who stood outside the door, this was holden not to be stealing in the dwellinghouse.(g).

*The 3 Wm. & Mary, c. 9, enacted that every person who should felo[*79 niously take away any goods or chattel being in any dwelling-house, the owner or any other person being therein and put in fear, should not have the benefit of clergy. It does not appear to have been expressly decided upon that statute whether or not it was necessary to prove the actual sensation of fear felt by some person in the house, or whether fear was to be implied, if some person in the house were conscious of the fact at the time of the robbery. But it was suggested as the better opinion, and was said to have been the practice, that proof should be given of an actual fear excited by the fact when committed out of the presence of the party, so as not to amount to a robbery at common law. (h) And it was observed that where the fact was committed in the presence of the party, possibly it would depend upon the particular circumstances of the transaction, whether fear would or would not be implied; but that clearly if it should appear that the party in whose presence the property was taken was not conscious of the fact at the time, the case was not within that statute.(1) The time, place, and circumstances ought to be considered by the jury in order to determine whether they were such as would put a person of reasonably sound mind in fear. Upon an indictment upon the 7 & 8 Geo 4, c. 29, for stealing in a dwelling-house, a person therein being put in fear, it appeared that the prosecutor's wife, about eleven at night, was going to bed, when she saw the prisoner under the bed, in which her husband was asleep, and she immediately screamed out in alarm, on which the prisoner, without offering her any sort of violence, or saying anything, passed out of the room; Tindal, C. J., told the jury that it was not necessary there should be any violence used; but if, from the circumstances, taking into consideration the time of night, and the place where the prisoner was found, a person in a dwelling-house was put in fear (those circumstances operating on a reasonably sound mind) it was a putting in fear within the statute.(j)

(d) This clause is taken from the 7 Will. 4, and 1 Vict. c. 86, s. 5. As to hard labor, see sec. 118; as to solitary confinement, see sec. 119; and as to sureties, see sec 117, ante, p. 67. The Act does not extend to Scotland.

(e) See ante, p. 67. As to the procedure against accessories, see vol. 1, p. 67, et seq. (f) See Burglary, ante, p. 8, and 2 East P. C. c. 16, s. 55, p. 623.

(g) Reg. v. Leonard, Cheshire Special Com. 1842; Arch. C. P. 340. It is submitted, with all deference, that this decision is erroneous; the law looks on an act done under the compulsion of terror as the act of the person causing that terror just as much as if he had done it actually with his own hands. Any asportation, therefore, of a chattel under the effects of terror is in contemplation of law the asportation of the party causing the terror.

(h) 2 East P. C. c. 16, s. 71, p. 635; Rex v. Etherington, Id. Ibid. (i) Id. Ibid. (j) Little's case, 1 Lewin 201. It should seem that this case would not come within the new Act, no menace or threat having been used. See note (c), ante, p. 78. C. S. G.

Upon sec. 45 of the new Act, which relates to demanding any property "with menaces or by force," it has been held that the menaces must be of such a nature and extent as to unsettle the mind of the person on whom they operate, and to take away from his acts that element of free voluntary action which alone constitutes consent; and it is a question for the jury whether the evidence in any particular case comes within that principle. (4) There is, however, a marked distinction between the two sections. Under sec. 61, not only must menaces be used, but they must put some one "in bodily fear;" but, under sec. 45, if menaces are used with the intent there specified, no one need be put in fear.

*80] Higgins and Murphy were indicted for stealing two pistols and *a watch in a dwelling-house, and by menaces putting J. Lewellyn and J. Evans, Clerk, then being in the house, in bodily fear; and a second count charged them with stealing in the house to the value of £5. Higgins pleaded guilty. The prisoners and four others went to the house in the evening, some of them having their faces blackened, and others having crape over their faces. Higgins and the four other men went into the house, and ordered the servant boy and maid to sit to the wall with their backs to them, and on no account to look round. A lady ran to the rectory for assistance, and the Rev. J. Evans ran to the rescue, and was caught by both shoulders by a man, who said, "You are the very man we want," and forced him gently forward, without hurting him or trying to hurt him, to the front door, where he was received by a man with crape over his face and a pistol in his hand, who made him sit down in the hall, with his face to the wall, and ordered him to make no noise. There he found by his side two or three more of his neighbors, who, on coming to the rescue, had been caught and treated in the same way. In the meantime some other of the robbers ransacked the house, and, when that was done, Mr. Evans was taken into the dairy, and three men, with pistols in their hands, taking him for the master of the house, required him to tell where the money was. He said he was a stranger. One of them proceeded to search his pockets; another said, "Blow out his brains, and do not waste time." He was a little frightened at this, and at the sight of the pistols. His pockets were searched, and £20 taken from him. Murphy had admitted that he was at the robbery, but that he merely met the parties outside, and handed them to the front door, and denied that he knew of the violence or the robbery of Mr. Evans, and said that he had told the others that if they hurt any one he would leave them. Two pistols and a watch were stolen from the house. Lewellyn, the servant, said he was not alarmed when he was put against the wall. Williams, J., "The question is, whether Murphy took such a part as to be responsible for the acts of the others. If you think he was one of the party who went to rob, and was there standing at the door to render assistance, then he is responsible for the robbery equally with the persons actually taking the money; so if their common purpose was by their conduct to inspire terror, then the prisoner is responsible for the acts of the others. If you think there was a common purpose to rob, you will say so; and if you think there was a common purpose to use threats, you will say so. As to the first question, to which the second count applied, there cannot be any doubt, if you believe the evidence. Then as to the first count, the prisoner's own statement put it beyond a doubt that the plan was to put the persons' faces to the wall. You will say whether that is not an intention to obtain money by threats. Then comes the question whether the persons were not put in bodily fear. The threat to blow out Mr. Evans's brains was done outside the house. That alone is not sufficient within the words of the statute; but it is a circumstance from which you may infer the line of conduct within the house. You cannot doubt that such conduct, and the use of such language, must inspire fear, however unwilling the witnesses may be to admit they were terrified."(/) *It was decided upon the 3 Wm. & Mary, c. 9, that the indictment must *81] expressly allege that some person in the house was put in fear by the prisoner. The form was (after stating a stealing of goods in the dwelling-house of one J. G.),

(k) Reg. v. Walton, L. & C. 288; 9 Cox C. C. 268. See this case, post.

(1) Reg. v. Murphy, 6 Cox C. C. 340. It is not stated, but it is presumed, that the pistols and watch were worth £5, and that the money stolen from Mr. Evans was not taken into account.

"he the said J. G., and one M. E., and one M. G., the wife of the said J. G., then being in the said dwelling-house, and being put in fear therein;" and, on the first consideration of the case, most of the judges inclined to think that the indictment was good, in pursuing the words of the statute; but they ultimately agreed that the prisoners were entitled to their clergy for the defect in the indictment, in not stating that the persons in the house were put in fear by the prisoner.(m) But in this case the judges held, that the prisoners were properly convicted of the larceny.(n)

So where a prisoner was indicted for house-breaking and stealing in the house goods of more than five shillings value, and the indictment did not state whether any person was in the house, the judges were unanimously of opinion that although clergy was taken away equally, whether any person was in the dwelling-house or not, the property stolen being above five shillings in value, (either under the 39 Eliz. c. 15, or the 3 Wm. & Mary, c. 9, s 1), yet the indictment ought to show upon what charge the case was founded, otherwise the prisoner could not have the means of knowing as he ought, which charge he was to meet, and that the prisoner was therefore entitled to his clergy.(0)

Upon the trial of any offence mentioned in this chapter, the jury may, under the 14 & 15 Vict. c. 100, s. 9, convict of an attempt to commit such offence; and thereupon the prisoner may be punished as if he had been convicted on an indictment for such attempt.(p)

An indictment for attempting to steal goods in a dwelling-house described them simply as "the goods and chattels of T. Roe:" and on a case reserved it was held good. Where an indictment charges an actual stealing, the goods must be specified; but where an attempt to steal only is charged, it is not necessary to specify the goods, for it cannot be said beforehand what the prisoner intended to steal.(pp)

*CHAPTER THE FIFTH.

[*82

OF STEALING IN A DWELLING-HOUSE TO THE VALUE OF FIVE POUNDS OR MORE.

THE former enactments on this subject(a) are repealed; and by the 24 & 25 Vict. c. 96, s. 60, "Whosoever shall steal in any dwelling-house any chattel, money, or valuable security, (b) to the value in the whole of five pounds or more, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years.-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(c) Principals in the second degree and accessories before the fact are punishable like principals in the first degree; and accessories after the fact (except receivers of stolen property) are liable to imprisonment for two years; by s. 98 of the Act.(d)

(m) Rex v. Etherington, 2 Leach 671; 2 East P. C. c. 16, s. 71, p. 635, in which last authority it is said, that the judges came to their conclusion, upon being referred to some precedents of indictments for burglary, in which, to oust the offenders of their clergy in case of their standing mute or challenging more than twenty, they were charged with putting persons in fear who were in the houses (within 1 Edw. 6, c. 12), and also to some other books and precedents.

(n) 2 Leach 673.

(0) Rex v. Marshall, R. & M. C. C. R 158.

(p) See the section, ante, vol. 1, p. 1.

(PP) Reg. v. Johnson, 10 Cox C. C. 13; L. & C. 489.

(a) 12 Anne c. 7; 7 & 8 Geo. 4, c. 29, s. 12, and 9 Geo. 4, c. 55, s. 12 (J.).

(b) As to what property is included in these words, see sec. 1, post, Larceny.

(e) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 12, and 9 Geo. 4, c. 55, s. 12 (I.).

As to hard labor, see sec. 118; as to solitary confinement, see sec. 119; and as to sureties, see sec. 117, ante, p. 67. The Act does not extend to Scotland.

(d) See ante, p. 67. As to the proceedings against accessories, see vol. 1, p. 67, et seq.

VOL. II.-5

According to the construction put upon the 12 Anne, c. 7 (which related to a stealing of this kind to the value of forty shillings), the dwelling-house must be one in which burglary might be committed.(e) But with respect to buildings within the curtilage, the 24 & 25 Vict. c. 96, s. 53, enacts, that no building, although within the same curtilage with the dwelling-house and occupied therewith, shall be deemed to be part of such dwelling-house, for any of the purposes of this Act, unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered or inclosed passage leading from the one to the other.(f)

The repealed statute of 12 Anne, ousted of clergy every person who should feloniously steal any money, goods, &c., of the value of forty shillings or more, being in any dwelling-house; the recent statute enacts, that if any person shall steal in any dwelling-house any chattel, &c.; but it has been construed upon the same principle, and considered as intended to give greater security only to property deposited in a house, so as to be under the protection of the house, and not to property about the person of the party from whom it is stolen. It may be useful, however, to notice

some of the cases decided upon the repealed statute. It was decided upon *83] *that statute that its provisions did not extend to a stealing in a man's own

house; on the ground that the statute was not intended to protect property, which might happen to be in a house, from the owner of the house, but from the depredations of others.(g) And, upon the same principle, where it appeared that the prisoner was a married woman and had stolen the property in the dwelling-house of her husband, it was holden that she could not be convicted of the capital part of the charge, as the house of the husband must be construed to be her house also: and she was therefore found guilty only of the simple larceny.(h) But where an indictment charged the prisoner with stealing in his own house various chattels above the value of five pounds, and the prisoner was convicted, the question was reserved whether the offence amounted to that of stealing to the value of five pounds in the dwelling-house (the house being that of the prisoner himself), or only to a charge of simple larceny, in order to determine what sentence would be legal, and the judges all thought the conviction for the whole offence right.(i) But a lodger who invited a man to his room, and there stole his goods to the value of forty shillings, when not about his person, was holden liable to be found guilty of stealing in the dwelling-house under that statute; the goods of a lodger's guest being under the protection of the dwelling-house. The prisoner lodged at Wakefield's, and having invited the prosecutor to sleep in his room, stole the prosecutor's watch whilst it was hanging at the bed's head; and he was convicted of stealing to the value of forty shillings in the dwelling-house of Wakefield; [neither Wakefield nor any of his family knew of the prosecutor's being there; so that he was the guest of the prisoner, and it was doubted whether the prisoner was not to be considered as the owner of the house with respect to the prosecutor; but] upon a case reserved, seven judges against three held the conviction right.(j) If a person go to bed leaving a watch on the table in the room, and it is stolen while he is asleep, this is a stealing in the dwelling-house. Upon an indictment for stealing in the dwellinghouse under the 7 & 8 Geo. 4, it appeared that the prosecutor had gone with the prisoner, who was a prostitute, to a house, where they were shown into a room, for which he paid; he fastened the door, and put his watch in his hat, which he placed upon a table, and then went to bed with the prisoner, and went to sleep, and she,

(e) 2 East P. C. c. 16, s. 81, p. 644; Davies's alias Silk's case, ante, p. 22; and other cases cited in the Chapter on Burglary, ante, p. 15, et seq.

(f) See ante, p. 16, et seq.

(9) Rex v. Thompson, 1 Leach 338; 2 East P. C. c. 16, s. 81, p. 644.

(h) Gould's case, 1 Leach 217; 2 East P. C. c. 16, s. 81, p. 644, in which last book it is said that the prisoner was the mistress of a brothel, and stole the money from a sailor who lodged in her husband's house.

(i) Reg. v. Bowden, 2 M. C. C. R. 285. In 1 C. & K. 147 (47 E. C. L. R.), it is stated that the facts were that the prosecutor had left a box of jewelry goods in the prisoner's house which the prisoner stole.

(j) Rex v. Taylor, MS., Bayley, J., and R. & R. 418. I have inserted the statement between the brackets from R. & R. C. S. G.