with which he had no concern; and the door into it being Ch. XV. § 10. shut up, and a working-bench placed against it, so as to stop Mansion, Outhouses, &c. the passage. One Bush (mentioned in the second count), a workman of M. Boulton's, occupied another of the dwelling-houses in the same wing; and from his house there was no way into the centre building: but there was in it a window which looked into a passage, that run the whole length of the centre building. In the other wing was the dwellinghouse of W. Nelson, (the person thirdly named,) the partner of M. Boulton in the button business, which had no internal communication with the centre: and in that wing other persons lived. In the front of this building was a terrace or front yard, fenced round in different ways, and at the end of the pile of building, above described, by a wall with gates for horses and carriages and a door for foot passengers. It appeared that the prisoners entered the premises in the night by the help of Phillips a servant of the prosecutor's employed in the manufactory,(who had privately given information of the whole to his employers,) who opened the door for them into the front yard, from whence they passed along the front of the building, and round into another yard behind it called the middle yard; and from thence they and Phillips went through a door, which was left open, up a stair-case in the centre building leading to the counting-house and rooms where the plating business was carried on: this door the prisoners bolted, and then broke open the counting-house, which was locked, and took from thence the ingots of silver and guineas. They then went to the story above, into a room where the plated business was carried on, forced the door, and took from thence a quantity of silver, and returned by the way they came into the middle yard, where they were immediately apprehended. The prisoners were convicted; but the case was reserved for consideration on two points. After argument in the Exchequer-chamber before all the May 9th, 1801. Judges, they all agreed on the first point, that the prisoners were not guilty of the burglary. That the centre building, which they had entered, and plundered, could not be considered as part of any dwelling-house; but a place for carrying on a variety of trades; and no parcel of the houses adjoining, with none of which it had any internal communication, nor was to be considered as under the same roof; though Ch. XV. § 10. though the roof of it had a connection with the roofs of the Mansion, Out- houses. But as to the second point, a majority held the houses, &c. prisoners guilty of the larceny (a). § 11. 2. The other point to be considered is relative to the 1 Hawk. ch. 38. inhabitancy, of which there must be some token either by the Inhabitancy. 8. 11. 1 Hale, 556. Sum. 82. Kel. 52. 67. 3 Inst. 64. 4 Blac. Com. 224, 5. Moor, 660. 4 Co. 40. Poph. 52. Fost. 77. Rex v. Murry & East. 10 W.3. MS. and MS. Nutbrown's Fost. 76. present or at least by the previous occupation of the owner or some part of his family, in order to make the mansion an object of this high protection of the law. However it is agreed by all, that a house wherein a man dwells but for part of the year, or a chamber in one of the inns of court, or of a college, wherein any person usually lodges, may be called his dwelling-house, whether any person were actually therein or not at the very time of the offence. Yet in all cases the owner must have quitted the house animo revertendi, in order to have it still considered as his mansion, where neither he nor any part of his family were in it at the time of the breaking and entering. John Nicholls being possessed of a house in Westminster wherein he dwelt, took a journey into Cornwall, with intent to return, and sent his wife and family out of town, and left the key with a friend to look after the house: after he had been gone a month, no person being in the house, it was broke open in the night and robbed of divers goods. He returned a month after with his family and inhabited there. And adjudged burglary by Holt C. J., Treby J., and four other Judges. John and Miles Nutbrown were indicted for burglary in case, O. B. 1750 the dwelling-house of one Mr. Fakney at Hackney, and stealing divers goods. The prosecutor made use of it as a country house in the summer, his chief residence being in London. About the latter end of the summer preceding the offence, he removed with his whole family to his house in the city, and brought away a considerable part of his goods. And in the November following the house at Hack. ney was broken open and in part rifled; upon which he removed the remainder of his household furniture, except a clock and a few old bedsteads and some lumber of little value, leaving no bed or kitchen furniture or any thing else for the accommodation of a family. Mr. Fakney, being asked whether at the time he so disfurnitured his house he (a) Vide S. C. at large on this point, tit. Larceny. had had any intention of returning to reside there, declared that Ch. XV. § 11. he had not come to any settled resolution whether to return Mansion-inhabitancy. or not; but was rather inclined totally to quit the house, and to let it for the remainder of his term. The fact of the burglary happened in the January following. But the court were of opinion, that the prosecutor having left his house, and disfurnished it in the manner before mentioned, without any settled resolution of returning, but rather inclining to the contrary, it could not be deemed his dwelling-house at the time the fact was committed: and accordingly the prisoners were directed to be acquitted of the burglary; but they were found guilty of the stealing. post. s. 14. If a man hire a shop in which he or his servant usually or 1 Hale, 557, 8. often lodge, burglary may be therein committed: but generally speaking it seems that a mere casual use of a tenement as a lodging, or only upon some particular occasions, will not constitute it a dwelling-house for this purpose. In Brown's Brown's case, case all the Judges agreed that the fact of a servant having slept in a barn the night it was broken open and for several nights before, being put there for the purpose of watching against thieves, made no sort of difference in the question. whether burglary or not. So a porter lying in a warehouse R. v. Smith, M. 3 G. 1. by to watch goods, which is only for a particular purpose, does 10 Judges, Lord not make it a dwelling-house: but if all communication with King's MS. 96. Serjt. Forster's the dwelling-house of which it is a part be not excluded, it may still be a part of the house in which burglary may be committed. MS. sion. Serjt. Hawkins states generally, that burglary may be com- † 12. mitted in a house which one has hired to live in and brought Taking possespart of his goods into, but has not yet lodged in: but he cites 1 Hawk. ch. 38. no authority to that effect except a passage in Kelyng 46. to s. 11. which there is a quære subjoined. And this point has often since been ruled otherwise. MS. & MS. Lyon Lyons and Thomas Miller were indicted for burg- Rex v. Lyons and Miller, O. lary in the dwelling-house of Edward Smith, with intent to B. Jan. 1778. steal, &c. But it appearing that the house was left to the Crown Cas. Res. care of a carpenter, who was to put it into repair; and that Gould & Buller the prosecutor had never inhabited it, nor had servants or Js. vide Leach, 169. (new edit. furniture in it; and that the former occupier had removed 221.) where it is out of it about a fortnight; and it was at the time of the of- said there were some goods in the house. 3 S fence Ch. XV. § 12. fence committed uninhabited; it was objected for the prisonMansion-inha ers that the house was not in judgment of law the dwellingbitancy. house of Edward Smith. And after conviction, upon referEast. term 1778. ence to the Judges, they held that this was no mansion-house, having never been inhabited by Smith. They were also of opinion that it was not burglary upon this indictment; for there were no goods in the house: and the indictment (charging the intent to steal) must be to steal the goods then and there being; and where nothing was in the house nothing could be stolen. Also it seemed to be the sense of the Judges; and Eyre B. declared it to be his opinion, that although some goods might have been put into the house, which is the case put in Kelyng 46., and there doubted; yet if neither the party nor any of his family had inhabited it, it would not be a mansion-house in which burglary could be committed. MS. Gould J. Hallard's case, 1796, cor. Bul- Thompson's case, Kingston Sp. Ass. 1796. O. B. Dec. 1782, Harris's case, The former tenant of a house had quitted it, and the incoming tenant had put in all his furniture, and had been frequently there in the day-time; but had never slept in the house, nor any of his family. Buller J. held that burglary could not be committed therein. And the like case was ruled by Grose J. at the same period on the home circuit. William Fuller being indicted for a burglary in the dwelling-house of Mr. Holland; it appeared that the house was a new one, and finished all but the painting and glazing; that a workman who was constantly employed by Mr. Holland slept in it for the purpose of protection; but no part of Mr. Holland's domestic family had yet taken possession of it. This was ruled by the Recorder, on the authority of Lyons' case, not to be the mansion-house of the prosecutor. On an indictment against John Harris for burglary in the O. B. Oct. 1795. dwelling-house of H. W. Dinsdale, it appeared that the prosecutor had lately taken the house near Cheapside, and on the night of the offence and for six nights before had procured two hair-dressers, none of his own family, to sleep there, for the purpose of taking care of his goods and merchandize therein deposited; but he himself had never slept there, nor any of his family. The Recorder ruled that the prisoner could not be convicted of the burglary. Consonant to these authorities another case was lately ruled upon a similar subject, which, though apparently it goes further than the rest, yet in truth proceeds upon the same principle. The The prisoner was tried upon an indictment for stealing Ch. XV. § 12. goods to the value of 40s. the property of Thomas Pearce Mansion-inhabitancy. in his dwelling-house. The house was a public house in Palace Yard, of which Pearce was the owner. About a Rex v. John month or six weeks before the felony was committed, the O. B. 1800. Davis, alias Silk, intended to inha tenant, who had carried on the business there, gave up the MS. Jud. The owner of a possession to the prosecutor, who also purchased the furniture house puts a perof him. The prosecutor resided in Milbank, where he car- son into it to sleep there at nights ried on his business of a brewer; and never intended person- till he can get a ally to reside in the public house, or to have the business of tenant, in order that house carried on upon his account; neither did any furniture there to protect some person inhabit his house in the day-time; but a servant of which he had purchased of the last the prosecutor's had slept there constantly for about three tenant, which serweeks, solely for the purpose of protecting the furniture, till vant had so slept a tenant could be procured for the house. The prisoner was weeks before; but there for three found guilty of the offence as charged in the indictment; the owner never but the question was reserved for the opinion of the Judges, bit it himself: whether by such occupation of the house by Pearce in the wherefore a conviction for stealmanner above stated it became his dwelling-house, within the ing the goods in meaning of the statute, so as to subject the prisoner to the the dwellingcapital part of the charge. In Trinity term 1800, the Judges held the conviction, as to the capital part of wrong; being of opinion, that as the master never intended to inhabit the house, it was not within the statute; and that it would have been no burglary if the house had been broken in the night. The prisoner was therefore recommended to mercy on condition of transportation, which would have been his punishment if the verdict had been properly taken. it, house of such owner to the va lue of 40s. was holden wrong, as the capital part of the charge, within the stat. to 12 Ann. c. 7. 2 MS. Sum. 305. A. died in his house; B. his executor put servants into it, Rex v. Jones and Longman, who lodged in it and were at board wages; but B. never O. B 1689. lodged there himself. Upon an indictment for burglary the Chapple's MS. question was, whether this might be called the mansionhouse of B.? The court inclined to think it might, because the servants lived there: but upon the evidence there appeared no breach of the house. 4. As to the Owner. sion. It is necessary to ascertain to whom the mansion belongs, § 13. and to state that with accuracy in the indictment. And In whose man: here it is to be lamented that the same rule does not prevail Post. s. 24. |