(iii) carnally knowing or attempting to know any child (iv) any infamous offence, that is to say, buggery, an (v) counselling or procuring any person to commit any (b) threatens that any person shall be so accused by any Threats. other person; or, document. document. (c) causes any person to receive a document containing such Threatening accusation or threat, knowing the contents thereof; or who by any of the means aforesaid compels or attempts to Compelling compel any person to execute, make, accept, endorse, alter or execution of destroy the whole or any part of any valuable security, or to write, impress or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or converted into or used or dealt with as a valuable security. 55-56 V., c. 29, s. 405. Accuses or threatens to accuse.]-The accusation need not be one made or to be made before a judicial tribunal; a threat to charge before any third person is sufficient. R. v. Robinson (1837), 2 M. & Rob. 14. It is immaterial whether the prosecutor be innocent or guilty of the offence imputed to him if the accused intended to extort money. R. v. Richards (1868), 11 Cox C.C. 43; R. v. Gardner (1824), 1 C. & P. 479. Although the prosecutor may be cross-examined as to his guilt of the offence imputed to him with a view to shake his credit, yet no evidence will be allowed to be given by another witness even in cross-examination to prove that the prosecutor was guilty of that offence. R. v. Cracknell (1866), 10 Cox C.C. 408. Where an information for rape or other offence under sec. 453 is laid with the sole intent to extort money or property from the person against whom the charge is made, the informant thereby "accuses" such person with intent to extort or gain something from him under sec. 453; and commits an indictable offence thereunder. R. v. Kempel (1900), 3 Can. Cr. Cas. 481 (Ont.). A crime punishable by law with imprisonment for seven years or more means a crime the minimum punishment for which is seven years; and the section does not apply where no minimum term of imprisonment is prescribed. R. v. Popplewell (1890), 20 Ont. R. 303. If a person has been indicted for an offence or is in custody therefor it is not an offence under this section to threaten to procure witnesses to prove the charge. Archbold Cr. Pl. (1900), 505. Valuable security.]-For the statutory definition of this term see sec. 2(40). Separate civil claim.]-Where the prisoner is being tried on a charge of having, with intent to extort money, accused or threatened to accuse a physician of having procured an abortion on the prisoner's wife, the evidence for the prosecution being to the effect that the demand for the money was on a claim of seduction as well as abortion, and the defence Penalty. Intent to extort. Accusation of crime. Threats. Threatening document. document. claiming that the demand was in respect of the seduction only, evidence is not admissible on behalf of the defence to prove that the charge of seduction was true. R. v. Wilson (1902), 6 Can. Cr. Cas. 131. 454. Every one is guilty of an indictable offence and liable. to imprisonment for seven years who, (a) with intent to extort or gain anything from any person (c) causes any person to receive a document containing such Compelling or who by any of the means aforesaid, compels or attempts to execution of compel any person to execute, make, accept, endorse, alter or destroy the whole or any part of any valuable security, or to write, impress or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or converted into, or used or dealt with as a valuable security. 55-56 V., c. 29, s. 406. Document containing accusation.]-Upon a charge of extortion in causing a person to be summoned for ill-treatment of a horse with intent to extort money, a letter written by the person summoned to a third person, on whom he had given an order for the money demanded to settle the charge, is not admissible in evidence against the accused charged with the extortion, unless the latter is shewn to have known its contents, although it was written concurrently with the order and was delivered therewith to such third party by the accused. A summons by a justice of the peace requiring the person summoned to answer a charge punishable on summary conviction under the Criminal Code is a "document containing an accusation" within the meaning of Code sec. 454. And it is an offence under Code sec. 454 for any person, with intent to extort or gain, to cause another person to be served with a justice's summons charging the latter with a criminal offence, notwithstanding that the information was laid by a third person without any such intent to extort. The King v. Cornell, 8 Can. Cr. Cas. 416. The "offence" to accuse, or threaten to accuse, a person of which with intent to extort or gain anything from him is here made an indictable of fence, need not be an offence under the Code or other Dominion law, but may be an offence under a provincial law, ex gr., an offence under a Liquor License Act. R. v. Dixon (1895), 2 Can. Cr. Cas. 589 (N.S.), and see R. v. Gibbons (1898), 1 Can. Cr. Cas. 340. Where. in a charge of sending a threatening letter to a person with intent to extort money, it is proved that the accused had stated that he had written a letter to such person, and that he had stated its purport in language to the like effect as the threatening letter, it is not error for the court to admit the threatening letter in evidence without further proof of the handwriting, and to submit to the jury for comparison with an A jury exhibit, already in evidence, admittedly written by the accused. (c) "Causes any person to receive," etc.]-Clause (c) will probably be construed as if the words "with such intent as aforesaid" in clause (b) had been repeated at the beginning of clause (c). Burglary and Housebreaking. 455. Every one is guilty of an indictable offence and liable Breaking to fourteen years' imprisonment who breaks and enters any place of worship and place of public worship and commits any indictable offence committing therein, or who, having committed any indictable offence therein, offence. breaks out of such place. 55-56 V., c. 29, s. 408. with intent 456. Every one is guilty of an indictable offence and liable Breaking to seven years' imprisonment who breaks and enters any place to commit of public worship, with intent to commit any indictable offence offence. therein. 55-56 V., c. 29, s. 409. 457. Every one is guilty of an indictable offence and liable Penalty. to imprisonment for life who, dwelling by night. night. (a) breaks and enters a dwelling-house by night with intent Breaking to commit any indictable offence therein; or, (b) breaks out of any dwelling-house by night, either after Breaking committing an indictable offence therein, or after having out of dwelentered such dwelling-house, either by day or by night, ling by with intent to commit an indictable offence therein. 2. Every one convicted of an offence under this section who Committing when arrested, or when he committed such offence, had upon when armed. his person any offensive weapon, shall, in addition to the imprisonment above prescribed, be liable to be whipped. 63-64 V., c. 46, s. 3. "Breaks and enters."]-To "break" means to break any part, internal or external, of a building, or to open by any means whatever (including lifting. in the case of things kept in their places by their own weight). any door, window, shutter, cellar-flap or other thing intended to cover openings to a building, or to give passage from one part of it to another. Code sec. 335 (c). An entrance into a building is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by him, is within the building. And every one who obtains entrance into any building by any threat or artifice used for that purpose, or by collusion the offence with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, shall be deemed to have broken and entered that building. Code sec. 340. To effect an entrance to a dwelling house by further lifting a partly open window is not a "breaking" within sec. 335 (c). R. v. Burns, 7 Can. Cr. Cas. 95, 36 N.S.R. 257. Where an indictment for burglary charges only the breaking and entering with intent and does not charge a breaking out of the dwelling house, and the evidence shews that two windows had been disturbed sufficiently to allow of an entrance, one of them being previously closed and the other Dartly open, but it does not appear by which of them the entrance was made, it is error to instruct the jury that an entrance by either is sufficient, and the misdirection is a substantial wrong to the accused entitling him to a new trial. Ibid. If a man enter into a house by a door or window, which he finds open, or through a hole which was made there before, and steal goods; or draw goods out of a house through such door, window or hole, he will not be guilty of burglary. For if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein it is no burglary. 4 Blac. Com. 226. There must either be an actual breaking of some part of the house, in effecting which more or less of actual force is employed; or a breaking by construction of law, where an entrance is obtained by threats, fraud, or conspiracy. Where, therefore, a cellar window, which was boarded up, had in it a round aperture of considerable size, to admit light into the cellar, and through this aperture one of the prisoners thrust his head, and, by the assistance of the other prisoner, he thus entered the house, but the prisoners did not enlarge the aperture at all; it was held that this was not a sufficient breaking. Rex v. Lewis, 2 C. & P. 628, Vaughan, B. An actual breaking of the house may be by making a hole in the wall; by forcing open the door; by putting back, picking, or opening the lock with a false key; by breaking the window; by taking a pane of glass out of the window, either by taking out the nails or other fastenings, or by drawing or bending them back, or by putting back the leaf of a window with an instrument. And even the drawing or lifting up the latch (Owen's Case, 1 Lewin 35) where the door is not otherwise fastened; the turning the key where the door is locked on the inside; or the unloosing any other fastening which the owner has provided, will amount to a breaking. 2 Russell Cr. 3. Where a pane of glass had been cut for a month, but there was no opening whatever, as every portion of the glass remained exactly in its place, and the prisoner was both seen and heard to put his hand through the glass, this was held a sufficient breaking. Reg. v. Bird, 9 C. & P. 44. So where a window opening upon hinges, is fastened by a wedge, so that pushing against it will open, if such window be forced open by pushing against it, there will be a sufficient breaking. The prisoner got into the prosecutor's cellar, by lifting up a heavy grating, and into his house by forcing open a window which opened on hinges, and was fastened by two nails, which acted as wedges, but would open by pushing: upon a case reserved, the judges held the forcing open the window to be a sufficient breaking. Rex v. Hall, R. & R. 355. So pulling down the sash of a window is a breaking, though it has no fastening, and is only kept in its place by the pulley weight: and it makes no difference that there is an outer shutter which is not closed. The prisoner entered a house by pushing down the upper sash of a window, which had no fastening, and was kept in its place by the pulley weight only. There was an outer shutter, but it was not put to. A case was reserved upon the question, whether the pushing down the sash was a breaking, and all the judges were unanimous that it was. Rex v. Haines, R. & R. 451. So raising a window, which is shut down close, but not fastened, is a breaking, although there be a hasp, which could have been fastened to keep the window down. Rex v. Hyams, 7 C. & P. 441, Park, J.A.J., and Coleridge, J. But if a window be partly open, but not sufficiently so as to admit a person, the raising it higher, so as to admit a person, is not a breaking. The prisoner was seen very near a window, which in the morning had been shut quite down, but when the prisoner was seen was raised about a couple of inches, and he immediately afterwards threw the sash quite up, and entered: and upon a case reserved, the judges were unanimous that this was not a breaking. Rex v. Smith, R. & M. C.C.R. 178. But where a square of glass in a kitchen window, through which the prisoners entered, had been previously broken by accident, and half of it was out at the time when the prosecutor left the house, and the aperture was sufficient to admit a hand, but not to enable a person to put his arm in, so as to undo the fastening of the casement, and one of the prisoners thrust his arm through the aperture, thereby breaking out the residue of the square, and having so done, he removed the fastening of the casement; Alderson, J., and Patteson, J., entertaining a doubt, from the difficulty they had to distinguish satisfactorily the case of enlarging a hole already existing, from the enlarging an aperture, by lifting up further the sash of a window, in the preceding case, submitted the case to the judges, who were unanimously of opinion that this was a sufficient breaking, not by breaking the residue of the pane, but by unfastening and opening the window. Rex v. Robinson, R. & M. C.C.R. 327; and it has since been held that a person, who, on finding a hole in a door or pane of glass, puts his hand in through the hole to remove the fastening of the door or window, and so gains admittance into the premises, is guilty of a breaking into the house. Ryan v. Shilcock, 7 Exch. R. 72. Threats, artifice or collusion.]-Entrance obtained by any threat or artifice used for that purpose or by collusion by any person in the building is deemed a "breaking and entering." See Code sec. 340 (2). So to persuade an innocent agent, either under colour of right or on any other excuse, or to incite a child under years of discretion, to open the door of another man's dwelling house in the night time, and thence bring cut goods, would be burglary in him that should thus persuade, although he take no part himself in the transaction; but the agent or the child, by reason of its tender years, would stand excused. "If A.," says Lord Hale, "being a man of full age, takes a child of seven or eight years old, well instructed by him in this villainous art, as some such there be, and the child goes in at the window, takes goods out, and delivers them to A., who carries them away, this is burglary in A., though the child that made the entry be not guilty, by reason of his infancy." 1 Hale P.C. 555. Hawkins compares the case of a servant letting in a thief at night with that where many act in concert, and although some of the party keep watch at a distance, they are, by construction of law, equally guilty of breaking and entering the dwelling house as those who actually break and enter. "It is certain that in some cases one may be guilty of burglary who never made an actual entry at all, as where divers come to commit a burglary together, and some stand to watch in adjacent places, and others enter and rob, etc., for in all such cases the act of one is, in judgment of law, the act of all. And upon the like ground, it seems difficult to find a reason why a servant, who confederating with a rogue, lets him in to rob a house, etc., should not be guilty of burglary as much as he, for it is clear that if the servant were out of the house, the entry of the other 24-CRIM. CODE. |