*CHAPTER THE THIRD.

Of House-Breaking.

BESIDES the nocturnal house-breaking or burglary, which has been treated of in the first chapter of this book, the law of England, in its especial regard for the safety and security of the habitation of man, has, in many cases, provided, that the forcible invasion of the dwelling-house of another, or house-breaking, when accompanied with felony, shall be liable to capital punishment, though committed in the day-time. The 1 Edw. VI. c. 12. s. 10. enacts, that no person or persons attainted or convicted of breaking of any house by day or by night, any person being then in the same house, where the same breaking shall be committed, and thereby put in fear dayornight, or dread;" or being indicted or appealed of any such ofany person fence, and found guilty; or confessing upon arraignment, in, and put or not answering directly, or standing wilfully mute; shall be admitted to the benefit of clergy. (a)

1 Edw. VI.

c. 12. s. 10. Breaking a house by

in fear.

Construc

The "breaking" mentioned in this statute, must be an action of this tual breaking; such as, if done in the night, would have amounted to burglary. (b) And the breaking must be *attend

statute.

[* 966] ed with some felony; so that though a house be broken in

Aiders and

the day-time with a felonious intent, it will not be an offence within the statute, if nothing be taken. (c) And there must be a putting of some person within the house in fear. (d)

Aiders and abettors at the fact of such a breaking and accessories, stealing, though they do not enter the house, are ousted of clergy by this statute. And so also are accessories before by the particular provisions of the 4 and 5 Ph. and M. c. 4., because the felonious taking, being accompanied with a breaking, seems properly enough to come under the notion of robbery in a dwelling-house; all accessories to which before the fact are expressly excluded from their clergy by that statute. (e)

a This statute did not exclude from clergy persons challenging peremptorily above twenty; but they were afterwards excluded by 3 and 4 W. and M. c. 9.

b 1 Hale 548. 2 Hawk. P. C. 33. s. $S. Fost. 108. 2 East. P. C. c. 16. s. 68. p. 631. Ante, 901. In the marginal note to the case of Hamilton and Chesser, 1 Leach 348, there is a quare whether an indictment on this statute would be supported by proof of breaking open an inner door and the lock of a cupboard, where admission to the house had been obtained by fraud. But see ante, 905, 908.

c 2 Hale 353. 2 East. P. C. c. 16. s. 68. p. 631. Lord Hale, however, had laid down a contrary doctrine in the former part of his

work, namely, that an entry with intent to commit a felony, though nothing were stelen, was within the statute. 1 Hale 543, 562,

563.

d 2 Hale 353. 2 East P. C. c. 16. s. 68. p. 631.

e 2 Hawk. P. C. c. 33. s. 87. 1 Hale 563. 2 East. P. C. c. 16. s. 63. p. 631. But if this offence were considered as complete without any felonious taking, and only by a breaking and entering, and putting in fear; accessories before would not be deprived of their clergy, 1 Hale 563. 2 Hale 353, 354, 361, 362. It should be observed of this statute 4 and 5 Ph. and M. that though it is general as to all robberies, in any dwelling-house, yet it is re

4. Robbing

houses,

within the

precinct of

waking.

The stat. 5 and 6 Edw. VI c. 9., after reciting a former 5 & 6 Edw. act of 23 H. VIII. c. 1. concerning robbing persons in their VI. c. 9. s. dwelling-houses, and some doubts which had arisen upon its any persons construction, (f) enacts and ordains “that if any person or in their *persons be found guilty for robbing of any person or per- [* 967] sons, in any part or parcel of their dwelling-houses, or dwellingdwelling-places; the owner or dweller in the same house, the owner, or his wife, his children, or servants being then within the &c. being same house or place, where the same robbery and felony shall be committed; or in any other place within the pre- the house, cinct of the same house or dwelling-place; such offenders either shall in no wise be admitted to their clergy, whether the sleeping or owner or dweller in the same house, his wife or children then and there being, shall be waking or sleeping." (g) The fifth section further enacts, "that no person or persons who shall be found guilty of robbing any person or persons in any booth or tent in any fair or market, the owner, his wife, his children, or servants, or servant, then being within the same booth or tent, shall (not) from hence- market, the forth be admitted to the benefit of clergy, but utterly be owner, &c. excluded, &c." without respect to the consideration whe- being withther the owner or dweller in such booths and tents, his sleeping or wife, children, or servants being in the same, at the time waking. of such robberies and felonies committed, were sleeping or

waking.

bing any

S. 5. Rob

persons in

any booth or tent, in

any fair or

in, either

Upon this statute the construction has been, that though the statute does not mention a breaking, yet an actual breaking, such as would make a burglary, if committed in the night, is necessary; and the reason given is, that the statute speaking of robbing imports more than a bare taking of goods, &c.; and implies some actual violence. (h) An intent to rob is not sufficient: there must be an actual felonious *taking away of some property. (i) And it is said, that [* 968] the value of the property stolen must be above twelvepence; on the ground that the statute did not alter the nature of the offence, but only took away clergy where clergy was allowed before, namely, where the offence was capital, as in grand larceny. (k) It is not enough that a stranger, or sojourner, be in the house at the time of the robbery : either the owner, or his wife, children, servants, or ser

g 5 and 6 Edw. VI. c. 9. s. 4.

1 Hale 522, 523. 2 Hale 352, 353. 1 Hawk. P. C. c. 34. s. 2 Hawk. P. C. c. 33. s. 92. 2 East. P. C. c. 16. s. 72. p. '636. But quare if any other violence amounting to a robbery would not bring a case within this statute as well as a breaking of the house. See Kel. 68, 69.

i Hale 522, 526. 2 Hale 355, 1 Hawk. P. C. c. 34. s. 6.

k 1 Hale 531. 2 East, P. C. c. 16. s. 70. p. 631. And see post, 971.

Principals aiders and accesso

ries.

vant (according to the words of the statute) must be within the precinct of the house at the time: () but it is not necessary that they should be in the same room where the robbery is committed. (m) It has been ruled that robbing a shop, such as was formerly kept in Westminster Hall, and like those which are now kept in Exeter Change, is not robbing a booth or tent, within the meaning of this statute. (n)

Principals in this offence of robbing in a dwelling-house, and also aiders and abettors, though they do not actually enter the house, are ousted of clergy; and so also are accessories before, by the provisions of 4 and 5 Ph. and M. c. 4. and 3 W. and M. c. 9. (0) But it does not appear that accessories before to a robbery in a booth or tent are ousted of clergy by any statute, unless the robbery be from the person; in which case the statute 3 W. and M. c. 9. will apply, the other statute 4 and 5 Ph. and M. c. 4. extending only to dwelling-houses.

It is suggested by Lord Hale, that an indictment against [* 969] *an aider and abettor should charge such person not generally, as "present, aiding, and abetting;" but as "maliciously commanding, hiring, or counselling to commit the fact," so as to comply with the words of the statute 4 and 5 Ph. and M. c. 4: but that learned Judge gives his own opinion that the words "maliciously present, aiding, and abetting," are sufficient; as being tantamount to the former, and more. (p) And he also states his opinion, that all may be indicted, quod fregerunt et intraverunt, as in cases of burglary or robbery. (q)

This statute of the 5 and 6 Edw. VI. c. 9. is spoken of as having been at one time in great and daily use; (r) but it appears now, together with the former act of 1 Edw. VI. c. 12. s. 10. to have been rendered of less importance (s) by a subsequent statute 3 W. and M. c. 9. which takes away clergy from persons robbing any dwelling-house in the daytime, any person being therein. The robbing in the statute of W. and M. implies a breaking; and as the statute does not require that the party in the house should be put in fear, which is necessary under the 1 Edw. VI. c. 12. s. 10, and

71 Hale 522. 2 Hale 355. 1 Hawk. P. C. c. 34. s. 3. 2 Hawk. P. C. c. 33. s. 93. An indictment was laid upon this statute, for breaking the king's mansion at Whitehall, and stealing Sir H. Hungate's goods there, divers of the king's servants then being in the house. 1 Hale 522. Rex v. Williains and others 14 Car 1.

m 1 Hale 522.

n 1 Hawk. P. C. c. 34. Robbery in a Booth, &c. s. 2. 1 Hale 524.

o 2 East. P. C. c. 16. s. 72. p. 637. p 1 Hale 522.

q Id. Ibid. And see ante, 37. post. 975. r 1 Hale 520.

s The later books do not supply many cases upon either of these statutes. In 1784, an indictment in a case at the Old Bailey contained a count upon the statute 1 Edw. VI. c. 12. but an objection was taken that the breaking of the house was not sufficiently proved; and the prisoner was convicted upon a second count in the indictment, upon the statute 12 Anne, c. 7. for stealing goods in the dwelling-house to the value of forty shillings. Hamilton's case, 1 Leach 318.

as it applies to cases where any person is in the house, and not like the 5 and 6 Edw. VI. c. 9. to cases only where the "owner or dweller, his wife, children, or servants," may be there, it appears to be more comprehensive than either of the former statutes.

3

W. and

M. c. 9. s. *

970]

person be

The words of the 3 W. and M. c. 9. as applicable to this *subject, are "that all and every person or persons that shall rob any dwelling-house in the day-time, any person being therein; or shall comfort, aid, abet, assist, counsel, any house hire, or command any person or persons to commit the said in the day offence, or to break any dwelling-house, shop, or warehouse time, any thereunto belonging, or therewith used in the day-time, and ing therein. feloniously take away any money, goods, or chattel of the value of five shillings or upwards therein being, although no person shall be within such dwelling-house, shop, or warehouse" being convicted, or attainted, standing mute, not answering directly or challenging above twenty, shall not have the benefit of clergy. (t)

statute.

In a case in which the construction of this statute came Construcunder the consideration of the twelve Judges, Mr. Justice tion of this Gould in delivering their opinion, said, "The word rob, in a legal construction, always includes the idea of force and violence: and although the statute does not expressly signify that breaking and entering the house is necessary to constitute the crime, yet it has always been held upon this statute, as well as upon other acts of parliament penned in the same manner, that those ingredients are ex vi termini included in and implied by the word "rob." It is therefore essential to consider what degree of breaking and entering is necessary; and it is settled in a variety of determinations upon the statutes relating to this subject, that the breaking must be of a dwelling-house, in the same way as would be necessary to constitute the crime of burglary upon the rules of the common law; the only difference between the two offences being, that burglary must be committed in a dwelling-house in the night time, and this offence must be committed in a dwelling-house by day." (u)

It should, however, be observed, that in some respects *this offence differs from that of burglary; inasmuch as here, [* 971] by the necessary implication of the word "rob," there must be an actual taking of property; while in burglary, as we have seen, a felonious intent, though not executed, is sufficient (w) and with respect to the value of the property taken, it seems that, according to the usual interpretation of the statute, it must be above a shilling in order to oust the

13 W. and M. c. 9. s. 1.

937.

Trapshaw's case, 1 Leach 428. Ante, And see 2 East. P. C. c. 16. s. 69. p. VOL. II.

633., and s. 72. p. 636.
w Ante, 912. et sequ.

Principals

any shop or

offender of clergy; unless, indeed, it be taken in the presence of some person in the house, so as to amount in law to a robbery properly so called. (x)

It should also be observed, upon the construction of this breaking statute, that as it has ousted of clergy the accessories before warehouse, to a breaking of any "shop or warehouse" belonging to, or and steal- used with a dwelling-house, and stealing therein to the value of five shillings; it seems that it must necessarily, and by implication, be taken to have ousted the principals also under the like circumstances. (y)

value of five shillings.

39 Eliz. c.

15.

Robberies

in the day

time in

person be

66

A robbery committed in the day-time, in a house left without any person to protect it, was less penal, after the passing of the statutes of Edw. VI., than when committed in the daytime in a house while some person was within; and the stahouse, no tute 39 Eliz. c. 15. recites that this circumstance had eming therein. boldened wicked persons to watch their opportunity and time to commit many heinous robberies, in breaking and entering divers honest persons' houses, and especially of the poorer sort of people, who, by reason of their poverty, were not able to keep any servant, or otherwise to leave any body to look to their house, when they went abroad to hear divine service, or from home to follow their labour to get their living, to the hindrance and loss of good subjects, and the utter impoverishing of many poor widows, sole women, and other people."

[* 972]

39 Eliz. c.

15. s. 2. Taking in the daytime property to the

*The statute then enacts, "that if any person or persons shall be found guilty and convicted by verdict, confession, or otherwise, according to the laws of this realm, for the felonious taking away, in the day-time, of any money, goods or chattel, being of the value of five shillings or upwards, in any value of 5s. dwelling-house or houses, or any part thereof, or any outhouse in a house, or outhouses, belonging and used to and with any dwelling&c. no per- house or houses, although no person shall be in the said house son being therein, felony without clergy.

3 W. and

1. As to

aiders and

abettors,

or outhouses at the time of such felony committed;" such person and persons shall not be admitted to the benefit of clergy.

The 3 W. and M. c. 9. s. 1. enacts, that "every person or M. c. 9. s. persons that shall comfort, aid, abet, assist, counsel, hire, or command any person or persons to break any dwelling-house, shop, or warehouse thereunto belonging, or therewith used, in and acces- the day time, and feloniously take away any money, goods, or chattels, of the value of five shillings or upwards therein being, although no person shall be within such dwellinghouse, shop, or warehouse," being convicted, shall not have the benefit of clergy.

sories.

A breaking

Though the words of the enacting part of the statute of

x 2 East. P. C. c. 16. s. 70. p. 634. Ante

968.

y 2 Hale 345, 6, 7. Fost. 330. 2 East.

P. C. c. 16. s. 68. p. 631, s. 73. p. 637. s. 76. p. 639, 640. 6 Ev. Col. Stat. Pt. V. Cl. VII. No. 17. p. 471, note (7) Post. 974.