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348 Breaking, &c. a Shop, Warehouse, or Counting-house.

this offence, unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage leading from the one to the other.

3. That the house is in the occupation of C. D., the prosecutor, as in burglary; see ante, p. 336; and is situate as described in the indictment. See ante, p. 339.

4. The larceny, as in ordinary cases; the value of the thing stolen is immaterial. Where it appeared that the prisoner, after breaking and entering the house, took two half-sovereigns from a bureau in one of the rooms, but being immediately detected, he threw them under the grate in that room: Park, J., held that this was a sufficient asportation, to constitute a stealing within this clause of the statute. R. v. Amier, 6 Car. § P. 344.

Verdict.] If you fail to prove a breaking and entering, the defendant may still be found guilty of stealing in the dwellinghouse, if the thing stolen be stated and proved to be of the value of 51. or upwards, or of simple larceny, if less. Or if you fail to prove the house to be a dwelling-house or parcel thereof, as in burglary, the defendant may be convicted of simple larceny. See ante, p. 118. If you prove the breaking and entering, but fail to prove the larceny, the defendant may be convicted of an attempt to commit the offence charged. 14 & 15 Vict. c. 100, s. 9, ante, p. 124. See R. v. Lawes et al., 1 Car. § K. 62.

6. Breaking and Entering a Shop, Warehouse, or Countinghouse, and Stealing.

Indictment.

The jurors for our Lady the Queen, upon their

to wit. Soath present, that A. B., on the

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day of

in the year of our Lord feloniously did break and enter the shop ["shop, warehouse, or counting-house"] of C. D., situate at in the county of and then in the said shop feloniously did steal, take, and carry away certain money of the said C. D., and one cloth coat, and one linen shirt, of the goods and chattels of the said C. D. ["chattel, money, or valuable security"], in the said shop then being found: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

Felony; 7 & 8 G. 4, c. 29, s. 15; transportation for not more than fifteen years, nor less than ten; or imprisonment,

Breaking, &c. a Shop, Warehouse, or Counting-house. 349

with or without hard labour, for not more than three years. 1 Vict. c. 90, s. 2. As to the punishment of accessories before and after the fact, see ante, pp. 16, 19.

Evidence.

To maintain this indictment, the prosecutor must prove

1. A breaking and entering of the shop, in like manner as in burglary; see ante, pp. 330, 332; except that it need not be in the night time. If, however, it turn out in evidence that the offence was committed in the night time, still it should seem that the defendant may be convicted, even although it appear that the shop, warehouse, or countinghouse was parcel of the prosecutor's dwelling-house; for the words of the statute are-"If any person shall break and enter" (without saying in the day or in the night) "any shop, warehouse, or counting-house" (without saying whether parcel of the dwelling-house or not) "and steal therein," &c. But where the evidence appears from the depositions clearly to prove burglary or housebreaking, the indictment properly should be framed accordingly.

2. That the shop, warehouse, or counting-house was then in the occupation of the prosecutor. See ante, p. 336. What is a shop or counting-house has in some cases been a matter of doubt. Where a blacksmith, who also dealt in coals, had a room beyond his workshop for holding his coals, and persons wishing to purchase went to this room for the purpose; a person being indicted for stealing coals from this place, as from a shop, Alderson, B., held that this was not a shop within the meaning of the statute; a workshop, such as a blacksmith's or carpenter's shop, was not within the act. R. v. Saunders, 9 Car. § P. 79. But, in a subsequent case, where a blacksmith's workshop alone, used for no other purpose, and not parcel of a dwelling-house, was broken open and robbed, Lord Denman, C. J., held it to be within the Act. R. v. Carter, 1 Car. & K. 173. Where a prisoner was indicted for breaking and entering a counting-house, and stealing a quantity of copper coins therein, it appeared that the place he broke and entered was a part of some extensive chemical works, called the machine-house, where all goods were weighed, and the weights entered in a book kept there by one of the prosecutor's servants, that an account of the men's time and the amount of their wages was taken there and entered in a book brought on each occasion there for the purpose, and then taken back to a room called the office, where the general books and accounts of the concern were

kept the prisoner being convicted, and the question whether this was a counting-house within the meaning of the Act being reserved for the court of appeal, Lord Campbell, C. J., said that the only question that could be submitted to the judges was, whether there was evidence that the building was a counting-house, and he thought there was abundant evidence for the purpose; and the other judges concurred. R. v. Potter, 20 Law J. 170, m.

3. The local situation of the shop, &c., as stated in the indictment. Where the prisoner was indicted for breaking and entering a warehouse in the parish of St. Peter the Great, in the county of Worcester, but the evidence was, that the parish was partly in the county of Worcester, and partly in the county of the city of Worcester: it was objected that this was a variance, and that the indictment should have stated the warehouse to be in that part of the parish of St. Peter which was in the county of Worcester; Patteson, J., held that to be so, and the prisoner was convicted of the simple larceny only. R. v. Brookes et al., Car. & M. 543. But now such a mistake as this may be rectified by amending the indictment. See stat. 14 & 15 Vict. c. 100, s. 1, ante, p. 100.

4. The larceny in the shop, as in ordinary cases. The value is immaterial.

7. Breaking and Entering a Church or Chapel, and

to wit.

Stealing.

Indictment.

The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of

in the county of

[name it],

in the year of our Lord -, feloniously did break and enter the church ["any church or chapel"] of situate at and then in the said church feloniously did steal, take, and carry away one silver cup and one book ["any chattel"] then therein found, of the chattels of C. D. and E. F., churchwardens of the said parish: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [If it be doubtful whether the defendant broke in, or broke out, you may add another count, thus:] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., on the day and year aforesaid, being in the church of situate at in the county aforesaid, then in the said church feloniously did steal, take, and carry away one silver cup and one book, of the chattels

of the said C. D. and E. F., churchwardens of the said parish as aforesaid, in the said church then being; and that the said A. B., so being then in the said last mentioned church, and having so stolen the chattels last aforesaid in the said church, afterwards on the day and year aforesaid, the said last mentioned church feloniously did break to get out of the same, and then feloniously did break out of the same: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Counts may be added, varying the statement as to the ownership of the property, if necessary.

Felony; 7 & 8 G. 4, c. 29, s. 10; transportation for life, or not less than seven years;—or imprisonment, with or without hard labour, for not more than three years, and solitary confinement during any portion of the imprisonment. 6 W. 4, c. 4. As to accessories before and after the fact, see ante, pp. 16, 19.

Evidence.

To maintain the first count of this indictment, the prosecutor must prove

1. The breaking and entering, as in burglary; see ante, pp. 330, 332; except that it is immaterial whether it be in the night or in the day. The local situation of the church or chapel must also be proved. Where the vestry was broken and entered, and it appeared that it was formerly the church porch, but upon alterations being made in the church, it was made into a vestry, having one door opening into the church, and another into the churchyard, but it was used merely by the clergyman for robing, and for holding the sacramental plate: this was holden to be part of the church, Coleridge, J., saying that it was just as much a part of the church as the nave. R. v. Evans et al., Car. & M. 298. So, where the tower of a church was broken and entered, and it appeared that it was immediately connected with the body of the church, having a door opening into it, and no outer door: it was holden to be part of the church. R. v. Wheeler, 3 Car. & P. 585. As to chapels, the Act extends only to chapels of the church of England, and not to those of dissenters. Where persons

were indicted for breaking and entering a chapel, and it appeared from the evidence that it was a dissenting chapel, Gaselee, J., and Vaughan, B., held that this section of the statute did not extend to it; that in stat. 7 & 8 G. 4, c. 30, s. 2, relating to the burning of churches and chapels, where the legislature meant to protect the chapels of dissenters, they mentioned them expressly. R. v. Warren and Spencer,

6 Car. & P. 335, n. R. v. Nixon and Scroop, 7 Car. & P. 442, S. P.

Where the

2. The larceny, as in ordinary circumstances. stealing is in a parish church, the goods stolen must be described as the property of the churchwardens, or parishioners, or of the rector. The goods of the church, and which the churchwardens are bound to provide for the parishioners, are the property of the parishioners, but are deemed to be vested in the churchwardens as their representatives; so that they may be stated to be the "chattels " either, of the churchwardens or of the parishioners. The rector also, as the freehold of the church is in him, and he has the occupation of it, has a special property quasi as bailee in all goods in the church, whether goods of the church, or of individuals of the congregation, and they may be laid to be the "chattels " of the rector. Where in an indictment for breaking and entering a church, and stealing an ancient poor-box fixed in it, with the money contained in it, one count stated the money to be the property of C. D. and others, the second count as the property of E. F. and others, and a third count stated it to be the property of G. H. and others; C. D. was one of the churchwardens, E. F. was the rector, and G. H. was one of the parishioners, but they were not called so in the indictment; this was objected to, and upon the prisoners being convicted, the point was reserved for the opinion of the judges; and the case being afterwards argued before them, they held the conviction to be right. R. v. Wortley and Allen, 2 Car. § K. 283. Where the stealing is from a chapel, the goods may be laid as the "chattels" of the owner of the chapel, or, if it be vested in trustees, then as the "chattels" of one of the trustees (naming him) and others; or if it be the property of an individual of the congregation, it may be stated to be his property, as in ordinary cases of larceny. But if any objection be made for variance between the statement in the indictinent and proof in this respect, the indictment may now be amended by stat. 14 & 15 Vict. c. 100, s. 1. See ante, p. 100. A fixture, however, is not a "chattel" within the meaning of the act. R. v. Baker, 13 Shaw's J. P. 429. R. v. Nixon, 7 Car. & P. 442.

To maintain the second count of the indictment the prosecutor must prove

1. The larceny in the church or chapel, as above.

2. The breaking out, as ante, p. 343; and the local situation of the church or chapel, as in burglary. See ante, p. 339.

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