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Burglary.
Also the breaking (in the night) of a Stable, Barn,
or other Out-house
adjoyning to, or parcel of, or near to the Dwelling-house, to the intent
to
steal, is Burglary, though he take nothing. Fi. lib. 2. |
Chap. 151.
Br. Cor.
180.
Lamb. 256.
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At Summer Assizes at Cambridge, An. Dom. 1616.
two Men were arraigned
and condemned for Burglary before Sir James Alham Knight, for
robbing a Brick-house of Robert Castle, Esquire, in the night; which
Back-house
was some eight or nine yards distant from his Dwelling house, and
only a pale reaching between them: So that although this offence
be not
committed in the very body of the Dwelling-house, but in some other
House near unto it, and being parcel of or belonging to the Dwelling-house,
it is Burglary. |
Co. 11. 37. |
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But a Booth or Tent in a Fair or Market, are not
esteemed in Law for a
Dwelling house, nor the breaking thereof in the night time to be Burglary;
although the robbing of them be made as penal as Burglary nor Felony. |
22 ASs. 95.
Stamf. 30.
126.
Co. 11. 41. |
§. 5.
The intent. |
Lastly, (to make it Burglary) the purpose and intent
for which the offender
cometh, must of necessity be to kill or rob some person, (or to commit
some other Felony) otherwise it is neither Burglary or Felony. |
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And therefore to break a House in the night, to
the intent to kill any
person therein, it is Burglary, although he never touched him. |
13 H. 4. 7.
Fitz. Cor.
267. |
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So it is, if the purpose were to rob, although the
offender taketh away
nothing. |
Fitz. Cor.
185 & 264.
Stamf. 10. |
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But if a Man break and enter an House by night,
of purpose only to
beat a Man, this is but Trespass. Abr. d' Ass. 75. |
Co. 11. 13. |
Rape, See
after here
cap. 107.
Rape.
Felony. |
And if the intent were to commit a Rape, which some
think to be no
Felony by the Common Law, but only a Trespass, then there is some doubt,
saith Mr. Lambert. And Mr. Crompton saith, That if
a Man breaketh another
Mans House in the night, and ravisheth a Woman there, this is no Burglary;
for (saith he) Ravishment is no Felony by the Common Law, as Burglary is,
although it be Felony at this day by the Statute: But it may seem
by Mr.
Bracton, Glanvile and Stamford, That by the ancient Common
Law it was
Felony: The words of Mr. Bracton, lib. 2. are thus, Olim
quidem corruptores
virginitatis & castitatis suspendebantur, &c. modernis tamen temporibus
aliter
observatur, wuia pro corruptione virginis amittuntur membra, &c.
And a little
after, Adelstanus; Rapius mulierum ne fiat, defedit tam lex humana quam
divina:
Et sic fuit antiquitus observatum, wuod si quis obviaverit solam, cum pace
dimittat eam, &c. Si autem contra voluntatem suam, &c. jact
at eam ad terream,
foris faciat gratiam suam, &c. Qod si concubuerit cum ea de vita
& membris
suis incurrat damnum, &c. And with this Mr. Glanvile also
agreeth, fol. 112.
& Co. L. sect. 190. Note, that the words, De vita &
membris suis incurrat
damnum, do imply the offence to have been Felony of Death, Br. Cor.
204.
Vide Co. L. 391. |
Lamb. 260
Cromp. 32.
Stamf. 21,
22, 23. |
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Also amongst the Laws of S. Edmond, sometimes
King of this Realm,
you shall find this Law, Qui cum Nunna vel sanctimoniali fornicetur,
emendetur
sicut homicida: A multo fortiori, then saith Mr. Stamford,
shall he be
punished if he had ravished her. So as Rape at the first, (saith
Stamford)
was grievously punished, until the time of King Edward the First,
who
seemed to mitigate the pain thereof by the Statute of West. 1. cap.
13. which
gave two years imprisonment and fine; but spying the mischiefs insuing
upon the said Law, at his next Parliament-holden at Westminster, called
West. 2. cap. 34. he made the offence of Rape to be Felony
again, Br. Coron.
204. |
Westm. 2.
21.
P. Rape 1. |
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Note also by Britton, fol. 17. It is
no Burglary in an Infant under fourteen
years of age, nor in poor persons, that upon hunger shall enter a house |
Cromp. 33.
See Pl. 19. |
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