| Chap. 151.
Cromp. 30. |
Burglary.
If any Forester, Park-keeper or Warrener or any in
their Company,
shall kill an offender in their Forest, Park or Warren, which (after Hue-and-Cry
levied to keep the Peace, and to obey the Law) will not yield
themselves, but will flie, or defend themselves by violence; this is no
Felony: Yet quære, if there were any former malice,
in such Keeper.
But if any such Keeper by reason of any former malice, will lay to any
Mans charge, that he came to do hurt, whereas he did not, neither
was found wandring nor offending, and so kill him; this is Felony in such
Keeper. |
359 |
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And so in the former Cases, where a Man is slain
for the execution of
Justice, sc. when the Offender shall disobey the Arrest, resisteth
or flieth,
and so is slain; As also where any Man shall be slain by an Officer of
other
Person, in keeping or preserving the Peace; yet if such Man-slaughter or
killing of such an Offender, be committed wittingly, willingly, and of
purpose,
under colour of execution of Justice or keeping of the Peace; this
is Felony. See the Statute of 1 Jac. c. 8.
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11 E. 3.
18 El. 6. |
Burglary. CHAP. CLI. V.
99.
BUrglary is composed of two French Words,
Burg (a Village or a Farmhouse,)
and Larron a (Thief;) and so in the natural signification,
is nothing but the robbing of a House: But in our Law it is taken
to be,
when one or more in the night time, do break or enter into anothers Dwelling-house
feloniously, wherein some person is, or a Church, or the Walls
or Gates of a City or walled Town, with an intent to rob or to do any
other Felony, although he or they ' do not excuse the same, or do take
or carry away nothing; yet it is Felony of Death, and the offenders shall
not have the benefit of their Clergy, Dyer 99. Stamf. 30.
Fitz. Coron. 185,
264. |
§. 1.
Definition. |
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' And if the intent or fact of this Offender be
to steal; this is like
' Robbery, If to murther, it differeth not much from Murther, and so of
' other Felonies. West. |
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Br. Cor.
185.
Stamf. 130.
Co. 11. 36.
21 H. 7.
See the title
Watch. |
First for the time: Burglary cannot be committed
in the day time, but
only in the night, for all Indictments of Burglary be, Quod noctanter
fregit:
And the night (to this purpose) beginneth at the Sun-setting, and continueth
to the Sun-rising: And therefore to break a House, &c. after
the
Sun-setting, and before it be dark; or after day-light in Summer, and before
the Sun-riseth, is Burglary. |
§. 2.
The time. |
Stamf. 30.
Dyer 99.
Br. Cor.
106.
Crom. 21,
32, 33. |
Next, for the manner: It is holden (by some
good opinions) That if a
Man break the House to do Felony, and yet entreth not, it is no Burglary;
and that the Indictment must be, Fregit & intravit. And
yet by the opinion
of Shard, 27 Ass. 38. And by the opinions of Sir Anth.
Brown, Sir Edw.
Montague, and Sir Rob Brook, late Chief Justices of the Common
Pleas, and
others, (as Mr. Crompton reporteth) if a Man do but attempt or enterprise
to break or enter into a Dwelling-house by night, to the intent to
rob, or
kill any person there, though he make no actual Entry, yet it is a full
and
compleat Burglary. For in such Cases Voluntas reputabitur
pro facto. |
§. 3.
The manner. |
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As to put back the Leaf of a Window with his Dagger. |
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To draw the Latch of the Door. |
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To turn but the Key, being on the inner side of
the Door. |
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And. part
1. p. 114. |
So to break the Glass Window, and to draw out any
Goods there with
an Hook, &c. 26 El. at Staff. Assizes. |
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