Copyright
William Oldnall Russell.

A treatise on crimes and misdemeanors (Volume 1) online

. (page 140 of 154)
Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 1) → online text (page 140 of 154)
Font size
QR-code for this ebook


open ; and in that case the court held it to be his father's house.



CHAP. I.] MANSION-HOUSE. — OWNERSHIP. 814

house. It was objected that the house ought to have been laid as the f <1 were tho
house of the company : but the recorder, ou the authority of the pre- \hl^u\as"^
ceding case, overruled the objection, and upon a case reserved, the judges tor's busi-
were of opinion that the house was properly described as Buuyou's "''''''. .^"^
house, as he and his family and servants were the only persons who
dwelt there ; they and they only were liable to be disturbed by a bur-
glary; and though the judges would not say that it might not have been
described as the company's house, they thought it might, with equal
propriety, be described as Bunyon's, and that the conviction was
right.((j)

Where a servant lived in a cottage, quite distinct from his master's A gardener
house, and has the entire control over the cottage, it may be described as •'^■'"ff in '^
his dwelling-house, although he pay no rent for it, and may be liable to dutimft
give it up whenever his service is terminated. Upon an indictment for '"'"'"n the
a burglary in the dwelling-house of J. Lewis, it appeared that Lewis wasj|'()ug"^
a gardener to the Baron de llutzen, and that he occupied, as gardener,
a cottage in his master's garden, that he slept in the cottage, and kept
the key, but took his meals with the other servants iu the house ; he
paid no rent, and considered himself liable to give up the cottage when-
ever he ceased to be gardener. It was objected that Lewis took no in-
terest in the cottage, but merely occupied it in right of his master, and
that it should therefore have been described as the dwelling-house of the
master. Lord Denman, C. J., " As the building in which the servant
slept is quite distinct and apart from the master's place of residence, and
he had a perfect control over it, and kept the key, I think that it is well
described as the dwelling-house of the servant; but I do not think that
the indictment would have been bad, had it laid the house as that of the
master. (^)

Upon an indictment for burglary, in one count alleged to have been
committed in the dwelling-house of Bromage, and in another in the
dwelling-house of the Earl of Coventry ; it appeared that Bromage had
the house and firing for the services he had performed for the Earl during
fift)' years, but he did no work, and was allowed so much a week as an
old servant; Littledale, J., held that this was sufficient to support the
indictment, as the house of Bromage, or at all events, as the house of the
Earl of Coventry, (c)

*Where a policeman was allowed to live in a house, in order to take *81o
care of it, and a wharf adjoining, it was held that the house was pro- J'crsons put
perly described as the dwelling-house of the policeman, on the irround!"^ '"'*'*'

r J _ o I'D take care

that he must live somewhere; and he was not otherwise the servant of of them,
the owner than in the particular matter. (r/) But where upon an indict-
ment for burglary in the dwelling-house of Bird, it appeared that Bird
worked for one Woodcock, who did business as a carpenter for the New
River Company, and put him in to take care of the house and flock mills

(a) Rex V. Witt, R. & M. C. C. R. 2 18, II. T. 1830. The Rcconlcr observed, " If
the principle stated in Margctt's case be correct, namely, that the imiiishmcnt of bur-
glary was intended to protect the actual occupant from the terror of disturliance during
the hours of darkness and repose, how could that possibly operate upon this company
had the house been broken and entered in the night with intent to commit murder upon
the person of Bunyon, or any of his family or servants ?"

(b) Rex V. Rces,' 7 C. & P. 508.

(c) Rex V. Ballard and Everall, Worcester Lent Ass. 1830, MSS. C. S. G. See Rex
V. Jobbing, post, p. 817.

(d) Rex V. Smith, cited in Rex v. Rawlins,* 7 C. & P. 150.

' Eng. Com. Law. Reps, xxxii. 633. ' lb. xxxii. 473.



815 OF BURGLARY. [bOOK IV.

adjoining, which belonged to the company, and he received no more
wages than he did before he lived there, nor had any agreement for any;
it was doubted whether the house was properly laid, and it was thought
that there might be some difference between this and the preceding case,
as here the man was put in by a person who did the work for the com-
pany, and it was thought the safest course to consider the indictment as
not properly laying it to be the dwelling-house of Bird.(e)
Where a Upon an indictment for house-breaking, describing the house in one

person is count as the dwelling-house of IMary Moulder, and in another count as
put in a ^ijg dwellinfT-house of G. B. P. Primm, no proof of the Christian names

house to . ° . . ' ^

take care of of Primm was given J but it appeared that Moulder had been put into
it till it is jIjq house by Primm to take care of it, till it could be let, and she was
to have coals for firing found by Primm ; she paid no rent for the house;
she had been occasionally a servant of Primm for thirty or forty years,
and done work for him, for which she had always been paid ; and it
was objected that the house was not the dwelling-house of Moulder but
of Primm. Littledale, J., '' I think the evidence is sufficient to support
the first count. The prosecutrix has had the exclusive occupation of
the house, and although there are very nice distinctions between the
cases, I think this was her dwelling-house. She was not put in as a ser-
vant, to take care of the furniture or goods, which has generally been
the case where such questions have arisen." (/)
Ownership But where a servant has part of a house for his own occupation, and
where a the rest is reserved by the proprietor for other purposes, the part reserved
part^'of a ^^ cannot be deemed part of the servant's dwelling-house ; and it is the
house, and same if any other person has part of the house, and the rest is reserved.
t e rest IS jij^g governor of the Birmingham workhouse was appointed under con-
tract for seven years, and was to have the chief part of a house for his
own and his family's occupation, but the guardians and overseers who
had appointed him, reserved to themselves the use of one room for an
office, and three others for store-rooms. The governor was assessed for
the house, excepting these rooms. The office was broken open, and the
indictment stated it to be the governor's dwelling-house ; but after con-
viction, and a case reserved, the judges held the description wrong. ((/)
*816 Where persons are abiding in a house as guests, or by sufferance, *or

Ownership otherwise, having no fixed or certain interest in any part of it, and a

of apart- burglarv is committed in any of their apartments, the indictment should
ments oc- g j ^ •' _ i ^

cupied by ^^J the offence as in the mansion of the proprietor of the house. {]i\ So
guests, (fee., that if the chamber of a guest at an inn be broken open, it must be laid
or inn "^^ ^"^ ^^ indictment to be the mansion-house of the innkeeper, {i) It is in-
deed said, that if A., a lodger in an inn, goes to his chamber to bed, and
his door is latched or locked, and afterwards in the night he rises, opens
his chamber-door, steals goods in the house, and goes away, it may be
a question whether this be a burglary ; and it is also said, that it seems
it would not, because A. had a kind of special interest and property in
his chamber, and therefore that the opening of his own door was no
breaking of the innkeeper's house. (./) But though this is the inclina-
tion of the opinion of a very great lawyer, the foundation on which it

(e) Rex V. Rawlins, 7 C. & P. 150, Vaughan and Gaselee, Js.

(/) Rex V. George James, Gloucester Lent Ass. 1830, MSS. C. S. G. Brown's case, ante,
p. 809, note [m), was strongly relied upon in support of the objection.
{q) Rex v. Wilson, E. T. 180G, MS. Bayley, J., aud Russ. & Ry. 115.
()0 1 Hawk. P. C, c. 38, s. 2G. {i) 1 Hale, 557.

(;) Ibid. 554.



CHAP. I.] MANSION-HOUSE. — OWNERSHIP. 816

proceeds cannot easily be reconciled with the doctrine which he admits
in the same page, and also in a subsequent part of bis work, namely,
that if A. had opcnoJ the chuiuber of ]5., another lodger in tbe inn, to
steal his goods, it would have been burglary ; and that though a lodger
has a special interest in his chamber, yet a burglary committed in it
must be laid as in the mansion-house of the innkeeper. (/r) And it has
been remarked that this doctrine is also at variance with the reasoning,
in a case subsequently decided, which supposes that a guest has not even
the possession of a room in an inn for himself, but that it remains still
in the possession of the host. (A

In this last-mentioned case, the prosecutor, who was a Jew pedlar, Prosscr'a
came to a public house, to st;iy all night, and fastened the dour of his ''"'''•
bed-chamber; when the prisoner, pretending to the landlord that the pri^^„ncr
prosecutor had stolen his goods, under this pretence, with the assistance ""'l'^'" pro-
of the landlord and others, forced open the chamber duor with intent tOij*|!j^g°
steal the goods mentioned in the indictment ; and the prisoner accord- robhcJ, had
ingly stole them. These facts were found specially. Mr. Baron Adams, [n^henTbt
who tried the prisoner, doubting whether the bed-chamber could pro- tlie cham-
perly be called the dwelliuo;-house of the prosecutor, as stated ib the iii-'>L'"-do<>i; of

HlTUCStlD

dictment, the case was submitted to the consideration of the judges, an inn, and
They all thought, that though the prosecutor had for that night a special ^*t<'lcn his
interest in the bed chamber, yet that it was merely for a particular pur- i,^!ij^ 11,^1;
pose, namely, to sleep there that night as a travelling guest, and not as <1h> ''ur-
a regular lodger: that he had no certain and jicrmancnl interest in the ^jj^^j j j^^^^
room itself, but that both the property and the possession of the room been luid in
remained in the landlord, who would be answerable cicililcr for any ! ' "l^ell-

' . • ing-nouse

goods of his guest that were stolen in that room, even for the goods then of the inn-
in question, which he could not be, unless the room were deemed to be 'weeper, and
in his possession. They thought also, that the landlord might have gone guest.
into the room when he pleased, and would not have been a trespasser to
the guest; and that upon the whole the indictment was insufficient. (7»)

*The landlord in this case does not appear to have been privy to the *3J7
felonious intent of the prisoner; but, on the contrary, was impcscd
upon by him, and induced to assist in breaking open the chamber, upon
the supposition that the guest within it had been guilty of felony : but
even if the landlord had been an accomplice in the act of the prisoner,
it seems that his offence would not have been burglary ; for though it
has been said that if the host of an inn break the chamber of his guest
in the night to rob him it is burglary, (h) that doctrine is questioned ;
and it was well observed, that there seems to be no distinction between
that case and the case of an owner residing in the same house, break-
ing the chamber of an inmate having the same outer door as himself,
which would not be burglary, (o)

If the owner of a house suffer a person to live in it rent free, it may Ownership
be stated to be that person's hou.se : he is tenant at will. The lessee ofT ''"^'""''

, rr 1 1 • -1 ^• • • 1 /• -1 1 1 1 <••'•" ** tenant

a house suffered his son-in-law to live m it, who tailed and left it; at will,
but one of the son-in-law's servants continued in it. The lessee died,
and the house was given up to the landlord, whose steward suffered the

(k) 1 TIalc, 554, 557.

(/) 2 Kast, P. C. c. 15, 9. 15, p. 503, where the learnefl writer says, that this deserves to
be well weighed before any final resolution upon the point.

(m) Prosser's case, cor. Adams, li., Monmouth Sura. Ass. 17G8. 2 East, P. C. c. 15, 3.
15, p. 602, 503.

(n) Ualt. c. 151, s. 4. (0) 2 East, P. C. c. 15, s. 15, p. 602. Kel. 94.



817 OF BURGLARY. [BOOK IV.



servant to continue in the house, and the only goods in it belonged to
the servant. Upon an indictment for breaking the house in the day-
time, the house was laid to be the servant's, and upon the point being
saved, the judges thought that it was rightly laid, as the servant was
there not as servant, but as tenant as will.(^^) And it has been decided,
that if the owner of a cottage lets one of his workmen, with his family,
live in the cottage, free of rent and taxes, and he lives there principally,
if not wholly for his own benefit, it may be described as the workman's
cottage. One Gent, a workman in a colliery, had fifteen shillings a-week,
and a cottage for himself and family, free of rent and taxes : he occupied
chiefly for his own benefit, and not for his master's. An indictment for
burglary described this as the dwelling house of Gent, and Holroyd, J.,
thought that it might be considered, as to third persons, either as the
master's house or the workman's : and the point being saved, the judges
held that it might be described as the workman's, and that the conviction
was right. ((/)
The owner- Though diflPerent opinions appear to have been formerly entertained
ship of upon the point, whether in the case of burglary in the hired apartment
let out to ^^ ^^ inmate it should be laid to be committed in the mansion-house of
inmates the inmate or of the owner ;(r) it is now settled, that if the owner who
upon" ^^^^ ^^^ apartments in his house to other persons sleep under the same
•whether roof, and has but one outer door at which he and his lodgers enter, (s)
sle^enrun- ^^^ ^'^^ apartments of such lodgers are parcel of the one dwelling-house
der the of the owner ; but, that if the owner does not himself dwell in the same
same roof, j^ouse. Or if he and his lodgers enter by different outer doors, the apart-
ther there ments SO *let out are the mansion, for the time being, of each lodger
is but one respectively. (<)

*S18 * ^^^® following cases were decided in conformity to this rule. A bur-
Carrell's g^^^J '^^^ committed in a hpuse which belonged to one Nash, who did
case. not live in any part of it himself, but let the whole of it out in separate

lodgings from week to week : and an inmate named Jordan had two
apartments in the house ; namely, a sleeping-room up one pair of stairs,
and a workshop in the garret ; which he rented by the week as tenant
at will to Nash. The workshop was the room broken open by the
prisoner. And upon a case referred to the judges for their consideration,
whether the indictment had properly charged the burglary in the dwell-

(p) Rex V. Collett, H. T. 1823, MS. B.ayley, J., and Russ. & Ry. 498.

(q) Rex V. Jobling, M. T. 1823, MS. Bayley, J., and Russ. & Ry. 525. See ante, p. 814,
and the cases, post, tit. Arson,

(r) 1 Hale, 556. Kel. 83, 84. 1 Hawk. P. C. c. 38, s. 27. Bac. Ab. tit. Burglary, (E),
notes.

(«) Where a lodger occupied one room in a house, the landlady keeping the key of the
outer door, it was held that this could not be described as his dwelling-house. Monks v.
Dykes, 4 M. & W. 5G7, but it would be otherwise if a house were divided into several
chambers with separate outer doors. Ibid. Fenn v. Grafton," 2 B. N. C. 617. 2 Scott, 56.

(t) 4 Bla. Com. 225. Lee v. Gansel, Cowp. 1. 2 East, P. C. c. 15, s. 18, p. 503, adopting
the doctrine in Kel. 83, 84. And in Rogers's case, 1 Leach, 90, is the following note by the
editor: " I have been favoured with the following opinion of Lord C. J. Holt, upon this
subject, from the manuscript notes of the late Loi'd C. B. Parker. — If inmates have several
rooms in a house, of which rooms they keep the keys, and inhabit them severally with their
families, yet, if they enter the house at one outer door with the owner, these rooms cannot
be said to be the dwelling-houses of the inmates, but the indictment ought to be for breaking
the house of the owner. Mr. Tanner, an ancient clerk of the court, said, that the constant
opinion and practice had been according to the opinion of Lord C. J. Kelynge, which opinion
was cited by Lord C. J. Holt upon this occasion at the Old Bailey October Sessions, 1701."

' Eng. Com. Law Reps. xxix. 433.



CHAP. I.] MANSION-HOUSE. — OWNERSHIP. 818

ing-liousc of Jordan, ten of tlicni Avcre of opinion, that as Nash, the
owner of the house, did not inhabit any part of it, the indictment was
good.(?<) So upon an indictment on the 3 & 4 W. & M. c. 9, ^now re-^^j,
pealed), for robbery in a dwelling-house, where it appeared tliat thesliaw's
house was situated in a mews, and the whole of it let out in lodgings to*^'^^*'
three families, with only one outer door, which was com mem to all the
inmates; one of whom rented the parlour on the ground-floor, and a
single room up one pair of stairs ; and that the parlour on the ground
floor was the part of the house broken open ; all the judges held that
the offence was well laid in the indictment, as having been committed
in the dwelling-house of the particular inmate. (r) And in a recent case
it was hold, that if two or more rent of the owner different ])arts of the
same house, so as to have amongst them the whole house, and the
owner does not reserve or occupy any part, the separate parts of each
may be described as the dwelling-house of each. Choice rented of the
landlord a shop and other rooms in a hou.se, and Eyan rented in the
same house another shop and all the other rooms; and he rented them
of the landlord also; the staircase and the passage were in common, and
the shops opened into the passage, which was enclosed, and was part of
the house; all the taxes were paid by Choice. The prisoner broke open
the passage door of Ryan's shop, and was indicted for burglary in the
dwelling-hou.se of Ryan : and upon the point being saved, the judges
had no doubt but that this was rightly described as the house of llyan,
and held that the conviction was right. (?r)

^Consistently also with this rule, an occupation of some part of the *819
house by the owner, which does not amount to an inhabiting, will not Rogers's
make the house such as may be stated to be his dwelling-house in an *^'**®*
indictment for burglary. The owner of a house let the whole of it in
apartments to different persons, and did not inhabit any part himself.
One of the inmates rented the bottom part of the house, namely, a shop,
a parlour and a cellar, (which ran underneath the shop and parlour,)
at a yearly rent ; but the owner had taken back the cellar for the pur-
pose of keeping wood and lumber in it, and made an allowance to the
inmate of ten shillings a-year, which was deducted from the rent. The
entrance to the hou.sc was by a common outer door from the street.
The shop and parlour were broken open. And upon an indictment for
burglary, laying the offence to have been committed in the dwelling-
house of the inmate, nine of the judges agreed that this was proper;
that it could not have been laid to be the dwelling-house of the owner,
as he did not inhabit any part of it, but only occupied the cellar ; but
that it would have been otherwise if the owner had occupied any part of
the hou.se. (./■)

Where there is an actual severance of the house in fact, by a partition

(«) Carrell's case, 0. Ti. 1782, considered of by the judges, E. T. 1782. 1 Hawk. V. C.
c. 38, s. 32. 1 Leach, 237. 2 East, P. C. c. 15, s. IH, p. 506. The judges relied on
Rogers's case, 1 Leacli, '.lO, ante, note (1), and /)o.v/, p. Cil'.t. The two other judges (Eyre.
B., and Buller, J.,) wlio thonglit that it was not the mansion-house of .lordan, were of
opinion tliat it might have been laid to have been the mansion-house of Nash ; to which
some of the other judges iuclineil. if it were not the mansion of Jordan.

(r) Trapshaw's case, 0. B. 1780, and Hil. Term, 1787. 1 Hawk. P. C. c. 38, s. 30. 1
Leach, 427. 2 East, P. C c. 15, s. 18, p. 50G.

(k) Re.\ V. Bailey, E. T. 1824, MS. Bayley, J., and Ry. & Moo. C. C. 23. Sec Reg. r.
Mayor of E}*e,i '.1 Ad. & E. 070.

(r) Roger's case, 0. B. 1772. and yi. T. 1772. 1 Hawk. P. C. c. 38, s. 29. 1 Leach, 89.
2 East, P. C. c. 15, s. 19, p. 506, 507.

' Eng. Com. Law Reps, xxxvi. 239.



819 OF BURGLARY. [BOOK IV.

0\yner- or tlio like, all internal communication being cut off, and each part being
^jj|^j.gj_],g^g inhabited by several occupants, separate and distinct mansions in law-
is no inter- will be Constituted. (^) And this may be, though the rent and taxes of
nal com- ^^^ wholc premises be paid jointly out of the partnership fund of the
tion. several occupants.

Jones's The prisoner was indicted for burglary and larceny in the d-\velling-

raroccupa-^*'"^*^ of Thomas Smith and John Kuowles. It appeared that these
tions of dis- persons were in partnership, and lived next door to each other. The

tinct parts ^.^^q houses had formerly been one house only, but had been divided for

oftnesaiue . i • i • p m- /• i

bouse by the purpose 01 accommodating the respective families of each partner,

two part- and were then perfectly distinct and separated from each other, there

constitute being no communication from the one to the other without going into

distinct the street. The house-keeping servants' wages, &c., were paid by each

for each partner respectively, but the rent and taxes of both the houses were paid

partner, jointly out of the partnership fund. The prisoner was servant to Smith,

"^ , and it was in his house that the burglary was committed. It was ob-
reut and . o J

taxes be jected upon these facts, that although the two houses were the joint pro-
paid from perty of both the partners, yet they were the separate and respective
fund. mansions of each, and, therefore, that the burglary ought to have been

laid as committed iu the house of Smith only. And the court conceived
the objection to be well founded, and directed the jury to acquit the pri-
soner of the capital part of the charge. (2)
*820 *Iii a more recent case also, it appears to have been ruled that a con-

Parmin- tribution by one of two partners of a proportion of the rent and taxes,
terscase. for cd-tain premises used in the partnership concern, did not give him
such a joint possession of those premises as to make it necessary to state
them in the indictment of the dwelling-house of both the partners. The
indictment was for stealing in the dwelling-house of J. Moreland ; and
the evidence was, that Moreland and one Gutteridge were co-partners;
that Moreland was the lessee of the whole premises, and paid all the
rent and taxes for them, and that Gutteridge had an apartment in the
house, and allowed Moreland a certain sum for board and lodging, and
also a certain proportion of the rent and taxes for the shop and ware-
houses. The felony was committed in the shop. It was contended that
Gutteridge, under these circumstances, had a joint possession of the shop
and warehouses, and that the indictment should have been framed accord-
ingly; but the point being saved upon this objection for the consideration
of the judges, they were of opinion that the indictment was right. (a)

If a house be let to A. and a warehouse under the same roof, and with
an inner communication, to A. and B., the warehouse cannot be described
as the dwelling-house of A. The indictment was for a burglary in the
dwelling-house of J. Richards; and the breaking was into the warehouses
under the same roof with J. Richards's dwelling-house, and communi-
cating with it internally; but the dwelling-house was let to J. Richards

(//) 2 East, P. C. c. 15, s. 17, p. 504.

(a-) Rex V. Jones, 1 Hawk. P. C. c. 38, s. 34. 1 Leach, 587. 2 East, P. C. c. 15, s. 17,
p. 504. Tracy v. Talbot, 2 Salk. 532, (a case upon a disti'ess for poor's rate,) it was ruled
by Holt, C. J., that if two several houses are inhabited by several families who make and
have but one common avenue or entrance for both ; yet, in respect of their original, both
houses continue ratable severally, for they were at first several houses ; and if one family
goes, one house is vacant. But if one tenement be divided by a partition, and inhabited by
different families, namely, the owner in one and a stranger in another, these are several
tenements, severally ratable while they are thus severally inhabited; but if the stranger and
his family go away, it becomes one tenement.

(a) Parminter's case, 1 Leach, 537, note (a).



CHAP. I.J TIME OF THE OFFENCE. 820

alone, and the waroliouscs were let to him and liis brotlicr, wlio lived



Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 1) → online text (page 140 of 154)