In Trinity term, 1823, this case was considered by THE JUDGES, who were of opinion that the house was properly described as the house of Gillings, and that the conviction was right. (a) 1823. WILFORD'S Case. THE REX v. JOHN BURROWS. HE prisoner was convicted of a rape before Mr. JUSTICE Rape. HOLROYD, at the summer assizes for the county of York, in the year 1823. 1823. If something occurs to create an alarm to the party perpetrating while he is the offence it may be for the jury to say whether he left the body re infectâ be cause of the alarm, or whether he left it because his The evidence of the girl was that the prisoner remained within her, how long she could not tell, she was so much distressed; perhaps two or three minutes; that she did not perceive any thing come from him; that she was struggling during this time; that she then saw two men several yards from her coming on the road; and as soon as she saw them she began to struggle violently, and attempted to call out; that on her struggling violently, and on his seeing those men, the prisoner withdrew himself from within her and jumped with his knees upon her breast, and held her by the purpose was mouth and throat so that she could neither speak nor stir. She accomplished. further stated, that the men went two or three yards past her without taking any notice; that the prisoner did not attempt to enter her again; and that when the two men had gone by a yard or two she called out, and they directly came and helped her. The two men, in their testimony, confirmed her as to these circumstances of struggling and violence; but one of them stated that the prisoner's face was down towards her when they came to the prisoner first, and that he did not believe the prisoner could see them till they got close to him. Upon this evidence of interruption the learned JUDGE doubted whether there was sufficient evidence of the offence having been completed; but he thought it right to leave the question to the jury, whether the prisoner had completed the crime before he withdrew, and withdrew on that account. (a) See Farre's Case, Kel. 45. 2 East, P. C. 504. Rex v. French, 1822, ante, p. 491. 1823. BURROWS'S Case. The jury found that he had, and convicted the prisoner; upon which the learned JUDGE reserved the point for the opinion of THE JUDGES, and respited the sentence. In Michaelmas term, 1823, this case was considered by THE JUDGES, who held that the question, whether the prisoner had so completed the crime, was a question for the jury, and was rightly submitted to their consideration. 1823. Burglary. Upon an indictment for burglary and larceny against two, one may be found guilty of the burglary and larceny, REX v. JOHN BUTTERWORTH, EDWARD THE three prisoners were indicted at the summer assizes for the county of York, in the year 1823, for a burglary in breaking into the dwelling-house of William Keighley, in the night-time, and stealing therein to the value of forty shillings and upwards. Moss pleaded guilty; and the other two prisoners were tried before the learned JUDGE, on their pleas of not guilty, and acand the other quitted of the burglary, but found guilty of stealing in the dwelling-house to the value of forty shillings. of the larceny only. It appeared in evidence that all the three prisoners were parties to the transaction as principals; and the two who were tried had been detected in the act of committing the theft, very soon after the day-light was gone, in the dwelling-house, which had been left before sunset; but the jury, from a doubt whether the breaking in might not have been before it became dark, acquitted the two who were so tried of the burglary, and found them guilty of stealing as above-mentioned. The learned JUDGE doubted against whom the judgment ought to be given upon this confession of burglary and stealing by the one, and this conviction of the stealing only by the others, with an acquittal of burglary as to them; whether the judgment ought to be only against Moss whose plea of guilty was taken and recorded before the trial of the two others was proceeded upon, or whether it might not be against all the three. He therefore respited the judgment, reserving the point for the opinion of THE Judges. 1823. BUTTER In Michaelmas term, 1823, the case was taken into consideration, when seven of THE JUDGES were of opinion that judgment should be entered against all the three prisoners; against WORTH's Case. Moss for the burglary and capital larceny, and against the other two for the capital larceny. BURROUGH J. and HULLOCK B. were of a different opinion; but HULLOCK B. thought that if a nolle prosequi were entered as to Moss for the burglary, judgment might be entered against all the three for the capital larceny. The seven JUDGES thought that there might be cases in which, upon a joint larceny by several, the offence of one might be aggravated by burglary in him alone, because he might have broken the house in the night, in the absence and without the knowledge of the others, in order to come afterwards and effect the larceny, and the others might have joined in the larceny without knowing of the previous breaking. (a) REX v. JOSEPH BYFORD AND ABEDNEGO ROBINSON. 1823. c. 15. extended and abettors THE HE prisoners were tried before Mr. BARON GRAHAM, at the Housebreakin the day Essex summer assizes, in the year 1823. The indictment was time. 39 Eliz. framed upon the statute 39 Eliz. c. 15., and charged that Joseph Byford, on the 7th of April, broke and entered the dwellinghouse of Mary Maule in the day-time, no person being therein, and stole five sovereigns, the property of William Maule, and that Abednego Robinson, on the 29th of March, in the same incited him to commit the felony aforesaid. The evidence not being sufficient to affect the accessary was acquitted. And upon the facts which were proved a point arose as to the charge against the prisoner Byford. It appeared from the evidence of Charles Drury, a lad of the year, age he of eighteen years, that he was prevailed upon by Byford to ousted of his latter statute, as being pre sent though out of the house, and aiding and abetting one who breaks in and steals may be charged with the breaking and entering. (a) See Rex v. Hempstead & Hudson, ante, 344. Rex v. Turner and others, 1 Sid. 171. 2 East, P. C. 519. And see 1 East, P. C. 371. 1823. BYFORD'S take advantage of the known absence of Mrs. Maule and her son to go to the back of her house with the intention of breaking into it; that between nine and ten o'clock in the morning of the 7th of April they went there together; that, after various trials, and under the direction of Byford, who was the next door neighbour of Mrs. Maule, and knew her habits, he found the key of the back door, unlocked it, and went into the house; Byford telling him to go up stairs into the room where William Maule slept, and that he there would find money in a box; that he went up accordingly, and took the five sovereigns, a purse, and some copper; that Byford stood in the field adjoining the house, at a distance of not four yards from the back of it, waiting for him; that the witness told Byford how much money he had taken, and that they went off together. The learned JUDGE left the case to the jury, not entertaining any doubt that Byford was properly charged as a principal, with all its consequences: and Buford was convicted. The prisoner's counsel, however, took an objection, that, by the construction put upon the statute 39 Eliz., Byford not having entered the house himself, was entitled to his clergy (a); and that although the statute of 3 and 4 W. & M.c.9. had taken away clergy from persons who should aid, abet, or assist in the commission of the offence, and had made the offender guilty of a capital offence, yet it was of a distinct offence, and as an accessary only, not as a principal: and that the offence ought to have been laid, by charging the prisoner with assisting Drury, in the words of that statute. The learned JUDGE was of opinion, that the prisoner Byford was properly charged as a principal; and that the case of Rex v. Mouncer and others (b), had been acted upon in several instances. He observed that the prisoner certainly was a principal to the extent of the larceny at common law; and that the subsequent statute of W. & M. created no new offence, but only took away clergy. But as some doubt might be entertained upon the point, the learned JUDGE thought proper to reserve it for the consideration of THE JUDGES, and therefore respited the judgment. (a) Fost. 418, and the authorities there cited. (b) 2 East, P. C. 6359. In Michaelmas term, 1823, the case was taken into consideration; and THE JUDGES were of opinion, that as clergy was taken away from all present at the commission of the offence, whether in the house or not, though by different statutes, it was not necessary, in the indictment, to distinguish between one species of principal and another; and that the prisoner was ousted of his clergy. 1823. BYFORD'S Case. REX . WILLIAM BRITTON DYSON. and THE prisoner was tried before Mr. JUSTICE BEST, at the Sep- other to mur der themselves together, and one does so, but the other fails in the They the other. But if it be uncertain deceased really killed himself, or The prisoner cohabited with the deceased for several months previous to her death, and she was with child by him. were in a state of extreme distress. Being unable to pay for their lodgings they quitted them in the evening of the night on which whether the the deceased was drowned, and had no place of shelter. They passed the evening together at the theatre. After the performance was over, they called at a house in Sherrard Street, and from thence went to Westminster Bridge, to drown themselves in the Thames. They got into a boat, and from that into another boat. The water where the first boat which they entered was moored was not of sufficient depth to drown them. They talked together for some time in the boat into which they whether he came to his death by accithe moment when he meant to destroy himself, it will dent before not be murder |