Commitment for Bestiality with a Cow.

County of J. P., esquire, one of his majesty's justices of the peace

to wit.

}

for the said county of
the parish of

to the constable of in the said county, and to the

keeper of the common gaol at

county.

in the said

THESE are in his majesty's name to charge and command you

in his majesty's name, forthwith to custody of the said keeper of the said day brought before me J. P. esquire, the peace in and for the said county, and charged on the oath of 1. K. last past, at

"

day of

in

the said constable of convey and deliver into the gaol, the body of A. B., this one of his majesty's justices of by O. P. constable of with having on the the parish of in the said county, in a certain cow-house, with a certain cow then and there being, feloniously had a certain venereal and carnal intercourse, and with having then and there carnally known the said cow, and with having then and there committed the abominable crime of buggery with the said cow, against the order of nature, and against the form of the statute in that case made and provided: And you the said keeper of - are hereby required to receive him the said A. B. into your custody in the said gaol, and him there safely to keep until he be delivered from your custody by due course of law. Given under my hand and seal · day of

the

A. D. 182-.

J. P.

(L. S.)

Burglary.

Offences against the House of another, which fall short of
Burglary, belong to tit. Larceny, and are to be found
under the head Larceny from the House.

§ I. Definition of Burglary.
Breaking and Entering.

Mansion-House.

Inhabitancy.

Ownership.

Indictment.

II. Verdict and Judgment.

III. Punishment.

IV. Recompense to Prosecutors, &c.

I. Definition of Burglary.

THE word burglar seemeth to have been brought unto us out of Derivation of Germany by the Saxons, and to be derived of the German burglary. burg, a house, and larron, a thief, probably from the Latin latro,

latronis.

Definition of burglary.

Breaking.

Trespass only.

Actual breaking.

Entering by a chimney.

Forcing a window fastened with wedges.

Burglary is a felony at common law, in breaking and entering the mansion house of another, in the night, with intent to commit some felony within the same, whether the felonious intent be executed or

not.

Hale's Sum. 79.

To amount to a breaking within this branch of the definition, the entrance must be obtained either by fraud, conspiracy, threat, or force. 2 Russ. 2.

But every entrance into the house by a trespasser is not a breaking in this case; there must be an actual breaking. As, if the door of a mansion house stand open, and the thief enter, this is not breaking. So, if the window of the house be open, and a thief with a hook or other engine draweth out some of the goods of the owner, this is no burglary, because there is no actual breaking of the house. But if the thief breaketh the glass of a window, and with a hook or other engine draweth out some of the goods of the owner, this is burglary, for there was an actual breaking of the house. 3 Inst. 64.

And Lord Hale says, these acts amount to an actual breaking; viz. opening the casement or breaking the glass window, picking open the lock of a door, or putting back the lock, or the leaf of a window, or unlatching the door that is only latched. 1 Hale, 552.

So, if a thief enter by the chimney it is a breaking; for that is as much closed as the nature of things will permit. 1 Haw. c. 38. § 4. 4 Black. Com. 226.

Getting into a 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.

Rex v. Brice, E. T. 1821. C. C. R. 450. The prisoner got in at the top of a chimney, and got down to just above the mantelpiece of a room on the ground floor. Case on question, whether this was a breaking and entering of the dwelling-house. Holroyd and Burrough Js. thought not, on the ground that he was not in the dwelling-house till he was beyond the chimney. The ten other judges held otherwise for the chimney was part of the dwelling-house; the getting in at the top was a breaking of the dwelling-house, and the lowering himself an entry into the dwellinghouse.

Rex v. Hall, York Sp. Ass. 1818, reserved per Bayley J., C.C. R. 355. H. was convicted at York Sp. Ass. 1818, of burglary. It appeared that the prisoner entered the prosecutor's house by lifting up a large iron grating, which was placed over the cellar (for the admission of light only), and opening a window in a passage leading from that cellar. The cellar opened into a passage, which led into the house, and the window was within the walls of the house; the cellar was beyond the walls. The grating weighed eight stone, and was usually fastened inside by a large iron chain, but it was not so fastened at the time the prisoner entered. The window opened upon hinges, and was fastened by two nails which acted as wedges, but those nails would open by pushing. It was objected by the prisoner's counsel, that the lifting up the grate was no breaking, because it was kept down by its own weight only; and that the forcing open the window was no breaking, because it was done by pushing only. Mr. J. Bayley thought the forcing the window was a breaking, but reserved both points for the consideration of the judges, who held the conviction right, and the

prisoner received sentence of death, but was afterwards reprieved,

and transported for fourteen years.

Rer v. Haines and Harrison, E. T. 1821. C. C. R. 451. The Pulling down prisoner entered a house by pushing down the upper sash of a a sash. window; it 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. Case on question, whether the pushing down the sash was a breaking, and the twelve judges were unanimous that it was; and Abbott C. J. observed, without animal force the sash would keep its place.

cellar fastened

Brown's case, Winton Spring Ass. 1799, cor. Buller J. 2 East's Opening foldP. C. 487. On indictment for burglary in the dwelling-house of ing doors. G. A., it appeared that the place which the prisoner entered was a mill under the same roof, and within the same curtilage as the dwelling-house. Through this mill was an open entrance or gateway capable of admitting waggons, and intended for the purpose of loading them more easily with flour, through a large aperture or hatch over the gateway communicating with the floor above. This aperture was closed by folding doors with hinges, which fell over it, and remained closed by their own weight, but without any interior fastening; so that those without under the gateway could push them open at their pleasure by a moderate exertion of strength in this manner the prisoner entered the mill in the night, with the evident intention to steal the flour. Buller J. held this to be a sufficient breaking to constitute the offence, and the prisoner was accordingly convicted. But this doctrine appears to Whether openbe extremely doubtful, from Callan's case, C. C. R. 157., who was ing a trap door tried before Lord Ellenborough C. J. at the O. B. Nov. Sess. 1809, or flap of a on an indictment for stealing three bottles of wine in the dwelling- by compression house of the prosecutor, and afterwards burglariously breaking only caused by out of the said house. — The wine was stolen from a bin in the its natural cellar belonging to the dwelling-house of the prosecutor, who weight, be a kept the Cock public-house, in Tottenham Court, and had been sufficient breakremoved by the prisoner from thence to the flap by which the ing to constitute burglary? cellar was closed on its outside next to the street. The flap had bolts belonging to it, by which it might have been bolted within; but whether it was so bolted on the night of the burglary the prosecutor could not say, but he was sure the flap was down. It did not appear whether the prisoner had entered by the flap of the cellar, or not, as a door which communicated with the cellar in another direction, and which the prosecutor had left locked, was broken open. The probability, therefore, was that the prisoner had entered that way; but if he had entered by raising up the flap, it would (unless prevented) have closed after him by its own weight, and, in order to get out after it had so closed, it would have required the degree of force necessary to lift up such a flap, to be applied to it. The flap was a large one, being made to cover the opening of a cellar, through which the liquors consumed in the public-house were usually let down into the cellar. The prisoner, when first discovered, had his head and shoulders out of the flap of the cellar, and upon being seized made a spring, got out, and ran away: he was immediately pursued, caught, and brought back, and the flap through which he had got was then found fallen down and closed. Upon this evidence it was doubted, whether there was a sufficient breaking to constitute the crime

Difference be

and Callan's

of burglary, and the prisoner having been convicted, the question was saved for the opinion of the twelve judges, who it is understood entertained great doubts upon the question. - No opinion was ever delivered, but the prisoner was discharged out of custody.

The only difference between this and Brown's case appears to tween Brown's be, that in B.'s case there were no interior fastenings. — In this, there were, but in neither case were any in fact used, but the compression or fastening, such as it was, was produced by the mere operation of natural weight in both cases.

cases.

Lifting up the

flap of a cellar usually kept down by its own weight, is

a sufficient breaking.

Aperture left for admission of light.

Breaking open an external gate not opening into any building, no burglary.

Opening an

area gate with a skeleton key, and thereby effecting an entrance into the

house, adjudged not burglary.

Breaking inner door.

Breaking inner door.

The prisoner got into prosecutor's dwelling-house by raising up the flap of a cellar which was let down, but which the jury found not to have been nailed; and from the cellar there was an internal communication with the house. On Ca. Res., after a verdict of guilty, the judges held that there was a sufficient breaking, and that the conviction was right. E. T. 1833. R. v. G. Russell, 1 M. 377. Semb., that this decision supersedes a contrary ruling on a like point in R. v. Lawrence & Weaver, 4 C. & P. 231.

Where a cellar window was boarded up, but an aperture left for the admission of light, through which a thief entered in the night, this was held to be no burglary. R. v. Lewis, 2 C. & P. 628.

Rex v. Bennett and Turnwell, O. B. Dec. 1814. cor. Sir J. Silvester, Recorder. W. B. and J. T. were convicted at the O. B. Dec. Sess. 1814, of burglariously breaking and entering the dwelling-house of W. A. Frampton in the night of the 15th of November, with intent to steal his goods and chattels, in the said dwelling-house. It appeared in evidence, that the place broken was an external gate not opening into any building, but only into the yard, through which access might be had without interruption to the dwelling part of the prosecutor's premises. But upon reference to the judges on case reserved, they unanimously held this not to be burglary, the place broken being the outward fence of the curtilage only. C. C. R. 289.

So also in the case of John Davis and James Lemon, who were convicted of burglary at the O. B. Jan. Sess. 1817, before Abbott J. A question arose, whether the opening an area gate by means of a skeleton key, and thereby effecting an entrance through the kitchen door, which was open, would constitute the crime of burglary. At Feb. Sess. 1817, Graham B. stated, that nine judges assembled to consider this case, were unanimously of opinion that, the area gate not being part of the dwelling-house, there was not a sufficient breaking to constitute the crime of burglary. C. C. R. 322.

But a burglary may, notwithstanding, be committed by a breaking on the inside: for though a thief enter a dwelling-house in the night-time through the outer door being left open, or by an open window, yet, if when within the house, he turn the key or unlatch a chamber door, with intent to commit felony, this is burglary. 2 East's P. C. 488.

A servant lay in one part of the house and his master in another, between them was a door at the foot of the stairs, which was latched; the servant in the night drew the latch, and entered his master's chamber in order to murder him: this was held to be burglary. 2 East's P. C. 488.

So where one of the servants in the house opened his lady's Breaking chamber door (which was fastened with a brass bolt), with design inner door. to commit a rape; it was ruled to be burglary, and the defendant was convicted. Gray's case, 1 Stra. 481.

door of cupboard let into

At a meeting of the judges upon a special verdict, in January Breaking open 1690, they were divided upon the question, whether breaking open the door of a cupboard let into the wall of the house were burglary the wall of a or no. Concerning which, Mr. J. Foster (Fost. 108, 109.) thinks, house. that with regard to cupboards, presses, lockers, and other fixtures of the like kind, in favour of life, a distinction ought to be made between cases relating to mere property, and such wherein life is concerned. He says, " In questions between the heir or devisee, and the executor (see 2 Vern. 508. 1 P.Wms. 94.), those fixtures may with propriety enough be considered as annexed to, and parts of, the freehold. The law will presume, that it was the intention of the owner, under whose bounty the executor claimeth, that they should be so considered; to the end that the house might remain to those who, by operation of law, or by his bequest, should become entitled to it, in the same plight he put it or should leave it, entire and undefaced. But in capital cases, I am of opinion that such fixtures, which merely supply the place of chests and other ordinary utensils of household, should be considered in no other light than as mere moveables, partaking of the nature of those utensils, and adapted to the same use." And Lord Hale, in another passage, seems to have inclined to the same opinion. 1 Hale, 555. 2 East's P. C. 489.

So, if the thief enter by the open door, and in the house break Breaking trunk a trunk or box which was locked, this is no breaking, to constitute locked. a burglary; because such things are no part of the house. 2 East's P.C. 488.

of a house.

Some doubts having been formerly raised, whether, if a person Breaking out entered a dwelling-house, without breaking it, with intent to commit a felony, and afterwards broke the house in the night-time to get out, it amounted to burglary, it is declared by 7 & 8 G. 4. c. 29. 11., that if any person shall enter the dwelling-house of another with intent to commit felony, or being in such dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night-time, such person shall be deemed guilty of burglary.

Where it appeared that the sash of a window had been a little opened, but not sufficiently to allow of a person entering through it, and the prisoners threw the sash up and got in, held, that it did not constitute a breaking. H. 1828. (a) R. v. Smith, R. & M. 178. N. B.- This was not a case of burglary, but of house-breaking, and committing larceny therein.

Opening a sash which was already in part opened.

Part of a pane of glass in a window was broken, and prisoner Glass of winput his hand through to undo the fastening of the window, but dow already could not reach sufficiently far without breaking the residue of the broken, fasten pane: he did so, unfastened and opened the window, and got in; ing undone. and whether this was a sufficient breaking was the question. Thir

(a) The ground of the judges' opinion was, that there was no decision which went the length of holding this a breaking; and they thought they ought not to go beyond what had been decided unless the case were within some settled principle, which this was not. MS, Bayley B.