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T R E A TI SE

ON

CRIMES

AND

INDICTABLE

MISDEMEANORS.

IN TWO VOLUMES.

VOL. II.

SECOND EDITION,

WITH CONSIDERABLE ADDITIONS.

BY WILLIAM OLDNALL RUSSELL, Esq.

OT LINCOLN'S INN, SERJEANT AT LAW.

LONDON:

JOSEPH BUTTERWORTH AND SON,

LAW-BOOKSELLERS, 43, FLEET-STREET.

1828.

A

TREATISE

ON

Crimes and Misdemeanors.

BOOK THE FOURTH.

OF OFFENCES AGAINST PROPERTY, PUBLIC OR

PRIVATE

CHAPTER THE FIRST.

OF BURGLARY.

It is laid down in the more ancient authorities that the offence of Definition of burglary may be committed by the felonious breaking and entering the offence. of a church, and the walls or gates of a town, in time of peace, as well as by the felonious breaking and entering of a private house. (a) But the more material enquiry at the present day relates to the breaking and entering of private houses, or, in the language of the books, the mansion-houses of individuals : and

(a) Staundf. P. C. 30. 22 Ass. pl. nanced by the more ancient authors; 95. Britt. c. 10. Dalt. c. 99. Crom. and that the general tenor of the old 31. Spelm. in verb. Burglaria. In 3 books seeins to be that burglary may last. 64, Lord Coke gives as a reason be committed in breaking houses, or for considering the breaking and en- churches, or the walls, or gates of a tering the church as a burglary, that town. I Hawk. P. C. c. 38. S. 17. And the church is domus mansionalis om- in 4 Black. Com. 224. it is stated that nipotentis Dei: but Hawkins says that breaking open a church is undoubthe does not find this nicety counte- edly burglary. VOL. II.

B

this species of the offence appears to be well described, as--A breaking and entering the mansion-house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. (b)

Pursuing the order of this definition, we may consider, I. Of the breaking and entering: II. Of the mansion-house: III. Of the time; namely, the night : IV. Of the intent to commit a

felony. A breaking I. Notwithstanding some loose opinions to the contrary, which and entering may have been fornierly entertained, it is now well settled that are both ne

both a breaking and entering are necessary to complete the cessary.

offence of burglary. (c)

With respect to the breaking, it is agreed that it is not every entrance into a house, in the nature of a mere trespass, which will be sufficient, or satisfy the language of the indictment, felonice et burglariter fregit. (d) Thus, if a man enter into a house by a door, or window, which he finds open, or through a hole which was made there before, and steal goods; or draw goods out of a house through such door, window, or hole, he will not be guilty of burglary. (e) There must either be an actual breaking of some part of the house, in effecting which more or less of actual force is employed; or á breaking by construction of law, where an entrance is obtained by threats, fraud, or conspiracy.

(6) 3 Inst. 63. i Hale 549. Sum. 79. England have always shewn an espei Hawk. P. C. c. 38. s. I, 4 Black. cial regard, herein agreeing with the Com. 224. 2 East. P. C. c. 15. S. 1. p.

sentiments of ancient Rome, as ex484. 1 Burn, Just. Burglary, S. 1. pressed in the words of Cicero : Quid The word burglar is supposed to bave enim sanclius, quid omni religione mubeen introduced from Germany by nilius, quàm domus uniuscujusque cithe Saxons; and to be derived from vium ? Hie aræ sunt, hic foci-hoc the German, burg, a house, and perfugium est ila sanctum omnibus, ut larron, a thief; the latter word being inde abripi neminem fas sit. The from the Latin, lalro. 1 Burn. Just. learned editor of Bacon's Abridgment Burgl. S. 1. 2 East. P. C. c. 15. s. 1. p, says that his researches had not enabled 484. But Sir H. Spelman thinks that bim to discover at what particular the word burglaria was brought here period time was first deemed essential by the Normans, as he does not find to the offence; but that it must have it amongst the Saxons : and he says been so settled before the reign of that burglatores, or burgatores, were E. VI. as in the fourth year of that so called, quod dum alii per campos king it is expressly laid down that it latrocinantur eminus, hi burgos perli- shall not be adjudged burglary, nisi nacius effringunt, et deprædantur. The ou le infreinder del mcason est per crime, bowever, appears to have been noctem, (Bro. tit. Corone, pl. 185) and noticed in our earliest laws, in the that, two years before, per noctem is common genus of offences deno- introduced (Id. pl. 180.) as of course minated Hamsecken; and by the an- in the mention of the offence. 1 Bac. cient laws of Canulus, and of H. 1. to Ab. Burglary, 539. (ed. 1807.) And have been punishable with death. LI. see 3 Inst. 65. Canuti, c. 61. Hen. I. c. 13. 1 Hale, (c) 1 Hawk. P. C. c. 38. S. 3. 1 547. citing Spelm. Gloss. tit. Ham- Hale 551. 4 Black. Com. 226. secken, and ibid. tit. Burglaria. Ori- (d) 3 Inst. 64, 1 Hawk. P. C. c. 38. ginally, the circumstance of time, i Hale 551, 552. which is now of the very essence of (e) Id. Ibid. For if a person leaves the offence, does not seem to have his doors or windows open, it is his been material; and the malignity of own folly and negligence ; and if a the crime was supposed to consist man enters therein it is no burglary. merely in the invasion on the right 4 Black. Com. 226. of habitation, to which the laws of

S. 4.

An actual breaking of the house may be by making a hole in Of an actual the wall; by forcing open the door ; by putting back, picking, or

breaking opening the lock with a false key; by breaking the window; by taking a pane of glass out of the window, either by taking out the nails or other fastenings, or by drawing or bending them back, or by putting back the leaf of a window, with an instrument. And even the drawing or lifting up the latch, where the door is not otherwise fastened; the turning the key where the door is locked on the inside ; or the unloosing any other fastening, which the owner has provided, will amount to a breaking. (f)

Thus where a window opening upon hinges, is fastened by a wedge, so that pushing against it will open it, and such window be forced open by pushing against it, there will be a sufficient breaking. It appeared that the prisoner got into the prosecutor's cellar, by lifting up a heavy grating, and into his house by forcing open a window which opened on hinges, and was fastened by two nails, which acted as wedges, but would open by pushing. He was convicted; and upon a case reserved, the Judges held the forcing open the window to be a sufficient breaking, and that the conviction was right.(3) So pulling down the sash of a window is a breaking, though it has no fastening, and is only kept in its place by the pulley weight: and it makes no difference that there is an outer shutter which is not closed. The prisoner entered a house by pushing down the upper sash of a window, which 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. A case was reserved upon the question whether the pushing down the sash was a breaking, and all the judges were unanimous that it was. (h)

It was doubted on one occasion whether a thief, getting into a house by creeping down the chimney, could be found guilty of burglary, as the house, being open in that part, could not be said to have been actually broken ; (i) but it was afterwards agreed that such an entry into a house will amount to a breaking, on the ground that the house is as much closed as the nature of things will permit. (k)

And it has lately been decided, that getting into the 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. The prisoner got in at the top of a chimney, and got down to just above the mantle-piece of a room on the ground floor. A case was reserved upon the question, whether this was a breaking and entering of the dwelling-house; and two of the judges thought it was not, because the party could not be considered as being in the

(f) i Hale 552. 3 Inst. 64. Sum, 80. 1 Hawk. P. C. c. 38. S. 6. 2 East. P. C. c. 15. s. 3. p. 487.

(g) Rex v. Hall, East. T. 1818. Russ. & Ry. 355.

(h) Rex v. Haines and Harrison, East. T. 1821. Russ. & Ry. 451.

(0) i Hale 552, where the learned author says that he was doubtful whether it was burglary, and so were

some others; but that

upon

examination it appeared that in the creeping down of the prisoner, some of the bricks of the chimney were loosened, and fell down in the room, which put it out of question ; and direction was given to find it burglary.

(k) Crompt. 32 (0) Dalt. 253. 1 Hawk. P. C. c. 38, s. 6. 2 East, P. C. c. 15. s. 2. p. 485.

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