1791. PELERYMAN AND RANDAL'S CASE. 1792. CASE CCLIII. feloniously ob that the indictment was not sufficient in form to sustain the charge of a highway robbery; for that it is essential in describing this offence to state that the assault was feloniously made with an offensive weapon, which was not done in the present indictment; it only stated that the prosecutor was feloniously put in fear and danger of his life (a). MR. JUSTICE HEATH and MR. BARON HOTHAM were both of opinion that the indictment was, for this reason, insufficient, and that it was impossible to give judgment upon this record for a highway robbery. THE Grand Jury, therefore, not being discharged, the Court ordered the prisoners to be remanded to Newgate; and the prosecutor found another bill against them, on which they were convicted. THE ensuing day this point was mentioned to several of the JUDGES; and upon the authorities 1 Hawk. P. C. ch. 34. s. 3. 1 Hale, P. C. 534. 3 Inst. 68. Co. Ent. 358. b. West. Symb. and Office of Clerk of the Peace, Pulton, 131, b. pl. 27. 2 Roll. Rep. 154. they were unanimously of opinion that the indictment was defective, and that the judgment had been properly arrested. 66 (a) Hale says that an indictment for robbery MUST run, Quod vi et armis apud B in regia via ibidem, &c. 40s. in pecuniis numeratis felonicè et violenter cepit a personâ, and therefore if the word violenter be omitted in the indictment, or not proved upon the evidence, though it were in alta via regia et felonicè cepit a personá, it is but larceny. 1 Hale, 534, for which he cites, Dyer, 224. THE KING against JAMES CAMPBELL. A Bank-note AT the Old Bailey in January Session 1792, the prisoner was tried before SIR JAMES EYRE, Knt. Lord Chief Baron, present MR. JUSTICE BULLER and MR. JUSTICE WIL tained in the house by a lodger from his landlord, SON, on the statute 12 Ann. c. 7. on an indictment charging, under pretence of going to his banker to get it changed, is not a capital offence within the statute 12 Ann. c. 7. for where the taking is from the person, it is not a stealing in the dwellinghouse. S. C. 2 East, 644. 1792. CASE. That James Campbell, late of the parish of St. Martin in the Fields, in the county of Middlesex, labourer; alias John Campbell, late of the same, labourer; alias James Pitt, late of the same, CAMPBELL'S labourer; alias John Douglas, late of the same, labourer, on the 6th day of May, in the twenty-ninth year of the reign of George the Third, King of Great Britain, &c. with force and arms, at the parish aforesaid, in the county aforesaid, in the dwelling-house of Charlotte Margaretta' Adams, widow, there situate, feloniously did steal, take, and carry away, one promissory note, called a Bank-note, of the value of twenty-five pounds (the said note at the time of committing the felony aforesaid being the property of the said Charlotte Margaretta Adams, the said sum of twenty-five pounds payable and secured by the said note being then due and un satisfied to the said Charlotte Margaretta Adams, the proprietor thereof), against the statute, &c. and against the peace," &c. It appeared in evidence, that the prosecutrix, Mrs. Adams, kept a common lodging-house in Buckingham-street, in Yorkbuildings. In the month of May 1789, the prisoner, in the name of Major or Colonel Campbell, hired Mrs. Adams's firstfloor, and insinuated himself into her confidence and good opinion by telling her that he was well acquainted with her family, particularly with her brother, a young gentleman, then in his Majesty's service at Gibraltar. On the morning of the ensuing day the Overseer of the parish called on Mrs. Adams for the payment of certain taxes, and she took the BANK-NOTE (a) of twenty-five pounds, as described in the indictment, from her pocket, and gave it to the Overseer to change; but he not having sufficient cash for that purpose, she gave it to her servant, Ann Morgan, who, by Mrs. Adams's desire took it to the prisoner in the first-floor, with her mistress's compliments, requesting that he would give her change for it. The prisoner took out his purse, and examining its contents, told her that he had not gold enough about (a) See Rex v. William Dean, July Session 1795, that Bank-notes are money within the meaning of 12 Ann. c. 7. 1792. CAMPBELL'S See Owen's him for the purpose, but that he would go immediately to his banker's and get it changed; and he accordingly left the house with the Bank-note in his hand, but never returned. Mrs. Adams soon afterwards suspecting the prisoner's integrity, gave information of the circumstances at Bow-street; but he was not apprehended until the month of January 1791. THE statute 12 Ann. c. 7. intitled, "An Act for the more effectual preventing and punishing robberies that shall be committed in dwelling-houses," recites, "That divers wicked and ill-disposed servants, and other persons, are encouraged to commit robberies in houses by the privilege, as the law now is, of demanding the benefit of their clergy;" and enacts, "That all and every person or persons that shall feloniously steal any money, goods or chattels, wares or merchandises, of the value of forty shillings, or more, being in any dwelling-house, or out-house thereunto belonging, although such house or out-house be not actually broken by such offender, and although the owner of such goods, or any other person or persons be or be not in such house or out-house, or shall assist or aid any person or persons to commit any such offence, shall be absolutely debarred of the benefit of clergy." A QUESTION arose, Whether, under the circumstances of this case, the prisoner was debarred by the above statute of the benefit of clergy, the statute having been made to protect such property as might be deposited in the house, and not that which was on the person of the party? THE Jury found the prisoner GUILTY; and the case was saved for the opinion of the JUDGES. THE JUDGES were of opinion, that it was not a capital offence within the 12 Ann. c. 7. and the prisoner was seu post. page 572. tenced to be transported for seven years. Case 256, 1792. THE KING against SAMUEL MOUNCER AND OTHERS. CASE CCLIV. breakers, AT the Essex Lent Assizes 1792, Samuel Mouncer, Robert The 3&4 Wil. Garrat, and Robert Smith were tried before MR. BARON & Mary, c. 9. takes away HOTHAM, on the statute 39 Eliz. c. 15. for that they, "On the benefit of the 5th September, 1791, about the hour of three in the clergy from persons aidafternoon of the same day, with force and arms at the dwell- ing and assisting-house of Daniel Hull, there situate, feloniously did breaking houseand enter, (no person in the said dwelling-house then being) under the and one child's fustian coat, &c. of the value of ten shillings, S. C. 2 East, of the goods and chattels of the said Daniel Hull, in the 639. same dwelling-house, then and there being found, then and there feloniously did steal, take and carry away, against the peace of our said Lord the King, his crown and dignity." Ir appeared in evidence that Mouncer only had broke and entered the house, and taken the goods, and that the other two prisoners waited at some distance in order to receive the goods, and assist him in carrying them away but there was some doubt as to the property being of the value of five shillings. THE prisoners' counsel contended that only Mouncer himself could be found guilty on this evidence; for that the statute 39 Eliz. c. 15. extended to principals in the first degree only; and not to persons present, aiding and abetting. 39 Eliz. C. 15. THE COURT. It was determined in the case of Evans and Finch, that the rule of law, which in cases of burglary makes persons waiting at a distance to assist the burglar, constructively present at the commission of the offence, does not apply to the crime for which these prisoners are indicted; for the statute 39 Eliz. c. 15. only excludes those from the benefit of clergy "who shall be found guilty; for the felonious taking 4 Black, away, in the day-time, of any money, goods or chattels, being Com. 240. of the value of five shillings or upwards, in any dwellinghouse or houses, or any part thereof, or any out-house or out-houses belonging to and used with any dwelling-house or houses, although no person shall be in the said house or 1792. MOUNCER'S CASE. Sed vide 2 Hawk. c. 33. sect. 98. T out-house at the time of such felony committed;" and therefore, in the case before-mentioned, where Evans, by a ladder, climbed to the upper window of a set of chambers in the Inner Temple, belonging to a Mr. Audley, and took away forty pounds; and his accomplice, Finch, only stood upon the ladder without going into the room, it was adjudged, on a special verdict, that Finch was intitled to the benefit of clergy, although the verdict found that he was within view of Evans, and saw Evans in the chamber, and was assisting and helping to the committing of the robbery, and received part of the money; for Finch was never in the house, and in so penal a law the words shall be strictly construed, and intended. only to apply to the person actually breaking the house and taking the money there in, and not of a constructive breaking and larceny, as in cases of burglary (a). But by the statute 3 and 4 Will. & Mary, c. 9. s. 1. "All and every per (a) Hale says, "the 39 Eliz. c. 15. binds up the exclusion of clergy to stealing in the house, 1 Hale, P. C. 528, 537. See also Foster, 108, 356, 418;"" that it only excludes the parties who actually take the property in the dwelling-house; not those that are present and assisting," 1 Hale, P. C. 528; Simpson was indicted on this statute at the Lent Assizes for Cambridge, 16 Car. II. and it appeared, that he had taken plate out of. a trunk in which it was contained, and laid it on the floor; but before he carried it away he was surprised and apprehended; and it was agreed by all the Judges, that this amounted to a stealing in the house within the meaning of the statute, for the felony is at common law; and by the common law, breaking the house and taking of goods and removing them from. one place to another in the same house with an intent to steal them, is felony; for by thus taking them he hath the possession of them, and that is stealing and felony. Kely. Rep. 31. Foster, 109.-In Smith's Case also, Old Bailey October Session 1698, three persons were tried on this statute for breaking' and entering the house of Miles Singleton in the day-time, no person being therein, and it appeared that a servant, in confederacy with the prisoners, let them into the house; in which they broke open several inner doors, and carried off goods to a great value, and it was objected that the servant being in the house, took the case out of the statute; but on reference to the JUDGES it was held to be well laid, for the house was equally defenceless' with so treacherous a servant in it as if no person had been in fact therein. MS. And this case is referred to by Mr. East (2 Vol. 638.), to shew that such a breaking in the day-time as would constitute burglary if done in the night is sufficient. |