1786. FEARNLEY'S CASE. Where an allowance is made to a pauper before a Court having competent jurisdiction. 2 Hawk, P.C. 6th Edit. 359. Secondly, THAT the indictment only states, that the order was shewn and delivered, but does not state that the money directed by the Justices to be paid was demanded, either before or after it was due; and being ordered to be paid "weekly and every week," the defendant could not have been beginning of guilty of any disobedience before the expiration of the first week; and therefore it ought to have averred, that the woman was alive at the end of the week. WEEKLY, it is due at the the week. See Rex v. 25 Geo. II. B. R. Trinity Term, 1786. LAW contra. This being a demurrer to an indictment, no advantage can be taken of any want of form in the caption; and if advantage could be taken of any such defects, the present objection would not be well founded, because enough appears in the caption of this indictment to shew that the Session was adjourned till Thursday the 6th of October: for although in the former part of it the word JULY is erroneously inserted, yet immediately afterwards it is stated, "That on the said Thursday, the sixth day of October, the same General Quarter Sessions of the Peace is holden by adjournment as aforesaid." THE COURT.-It is a good objection, that by the caption of the indictment it appears that the Court had no jurisdiction; and upon a demurrer to an indictment, the Court must look into the whole record, to see whether they are warranted in giving judgment on it: it is therefore open to objections as well to the jurisdiction of the Court where the indictment was found, as to the subject-matter of the indictment itself. On the other point, the Court were of opinion, that the sum which was ordered to be paid weekly was due at the beginning of the week; but whether a sufficient demand was stated they gave no opinion. 1786. THE KING against WILLIAM TRAPSHAW. CASE CXCVIII. whole of which is let out in lodgone outer door ings, and has common to all AT the Old Bailey in August Session 1786, William Trap- A house, the shaw was convicted of breaking and entering the dwellinghouse of James Linney, in the day-time, Frances his wife being therein, and stealing several articles of wearing apparel, value 7s, and 4d. the property of the said James Linney: but the judgment was respited, and the question submitted to the the mansionconsideration of the TWELVE JUDGES, Whether, under the house of its following circumstances, the room broke open by the pri- bitants. soner was well laid in the indictment to be the dwelling-house S. C. 2 East, of James Linney? THE house was situated in the Temple-Mews, and belonged to the Earl of Radnor, who let the whole of it out in lodgings. It was inhabited by three families, and had only one outer door, which was common to all the inmates. James Linney rented the parlour on the ground-floor, and a single room up one pair of stairs, where he slept. It was the parlour on the ground-floor that was broke open, and the things mentioned in the indictment were taken from that room by the prisoner. THE JUDGES assembled at LORD LOUGHBOROUGH's cham bers on the first day of Hilary Term, to consider this case; and at the Old Bailey, in the February Session following, MR. JUSTICE GOULD publicly delivered their opinion. MR. JUSTICE GOULD.-The indictment upon which this question arises, is founded on the second part of that clause of the statute 3 & 4 Will. and Mary, c. 9. s. 1. which enacts, "That all and every person or persons that shall at any time rob any other person, or shall feloniously take away any goods or chattels being in any dwelling-house, the owner or any other person being therein, and put in fear; OR shall rob any dwelling-house in the day-time, any person being therein; OR shall comfort, aid, abet, assist, counsel, hire, or command any person or persons to commit any of the said offences; on to break any dwelling-house, shop, or warehouse there its inmates, is several inha 506-780. TRAPSHAW'S 1786. unto belonging, or therewith used in 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 dwelling-house, shop, or warehouse; OR shall counsel, hire, or command any person to commit any burglary, shall not have the benefit of his or their clergy." The word rob, in a legal construction, always includes the idea of force and violence; and although this part of 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 sub ject, 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. The next consideration therefore is, what shall be considered as a dwelling-house within the meaning of this Act of Parliament. In Mic. Term 1773, a case on a conviction of burglary was determined by the JUDGES, the circumstances of which were analogous to the present case. The owner of the house had let the whole of it to different lodgers. The prosecutor rented a room on the first floor, a shop and a parlour on the groundfloor, and a cellar underneath the shop, at 12l. 10s. a-year. The owner took back the cellar to keep lumber in, for which he allowed the prosecutor a rebate out of his rent of 10s. a-year. The entrance was into a passage by a door from the street, and on the side of the passage one door opened into the shop and another into the parlour; and beyond the parlour was the stair-case, which led to the upper apartments. The shop and parlour-doors were broke open; and the JUDGES determined that these rooms were properly laid to be the The King v. page 89, 1786. CASE. The King v. dwelling-house of the prosecutor; for it could not be called the mansion of the owner, as he did not inhabit any part of it, but only rented the cellar for the purposes before-men- TRAPSHAW's tioned. And the number of houses, especially in the metropolis, which are in a similar situation, must have been left entirely unprotected against burglary, had it been determined that the apartments of lodgers were not their dwelling-houses, when the owner has, as it were, abandoned the dwelling himself, and left the whole house to their enjoyment and possession. In February Session 1781, the case of The King v. Carrel for burglary, was reserved by Mr. Recorder. The page 237, house belonged to one Nash, who had let the whole of it in Case 118. separate tenements. Jordan, the prosecutor, as tenant at will to Nash, rented a sleeping-room up one pair of stairs, and a workshop in the garret; the door of this workshop was broke open; and the question was, Whether it could be considered as the mansion of John Jordan the prosecutor? and according to my note of this case, the JUDGES were unanimously of opinion in the affirmative; and they relied upon The King v. Ante, page Rogers as a case in point; but I have seen a manuscript of 89, Case 50. the same case by MR. JUSTICE BULLER, in which he takes notice, that only TEN of the TWELVE JUDGES were of this opinion; and from the known accuracy of that learned Judge, I must presume that the fact was as he stated it: but I have no recollection that either he or MR. BARON EYRE dissented at the time from the opinion of the other Judges (a). In the present case, however, all the JUDGES are of opinion, That the two determinations which I have recited are precisely in point; and that the present indictment properly charges the room broke open to be the dwelling-house of James Linney. The reason of this opinion becomes evident the moment it is stated. The owner of the house is, if I may so express (a) In Easter Term 1782, TEN JUDGES against Two held in Carrel's Case the offence well laid, upon the authority of R. v. Rogers; but BULLER J. and EYRE B. thought that it was not the mansion-house of Jordan, but that it might have been laid to have been the mansion-house of Nash, to which some of the others inclined, if it were not the mansion of Jordan, 2 East, P. C. 506. TRAPSHAW'S 1786. myself, THE LORD of it; but having relinquished every part of it to the habitation of others, it cannot with any propriety be considered as his mansion or dwelling-house. The entirety which resides with him is split into several possessions; and every separate apartment, being in a distinct and several occupation, is the distinct mansion-house of its respective possessor. THE prisoner accordingly received sentence of Death. CASE CXCIX. THE KING against WHITE. A person who ON the trial of an indictment at the Old Bailey for horsehas no notion stealing, in October Session 1786, Thomas Atkins was called as a witness to support the prosecution. of eternity or of a future state of reaward and punishment cannot be examined as a witness; but the trial may be postponed until the witness is instructed in the nature of this obliga tion. BEING examined on the voir dire, he said, that he had heard there was a God, and believed that those persons who tell lies would come to the gallows; but acknowledged that he had never learned THE CATECHISM, was altogether ignorant of the obligations of an oath, a future state of reward and punishment, the existence of another world, or what became of wicked people after death (a). THE COURT rejected him, as being incompetent to be sworn; for that an OATH is a religious asseveration, by which (a) MR. JUSTICE ROOKE, in a criminal prosecution that was coming on to be tried before him at Gloucester, finding that the principal witness was an infant who was wholly incompetent to take an oath, postponed the trial till the following assizes, and ordered the child to be instructed in the mean time by a clergyman in the principles of her duty, and the nature and obligation of an oath. At the next assizes the prisoner was put upon his trial, and the girl being found by the Court, on examination, to have a proper sense of the nature of an oath, was sworn, and upon her testimony the prisoner was convicted, and afterwards executed. MR. J. ROOKE mentioned this at the Old Bailey in 1795, in the case of Patrick Murphy, who was indicted for a rape on a child of seven years old, and the learned JUDGE added, that upon a conference with the other JUDGES upon his return from the circuit, they unanimously approved of what he had done. See Mr. Gwillim's edit. of Bacon's Abr. vol. II. page 577. notis. |