Entering by place not an entrance. removing fastening, returning and entering. HOUSEBREAKING. doors, or by taking an extraordinary mode of entry without violence, as by raising and coming in at a window (1), or by passing down a chimney, or through One in building a sewer (2). The security is held to be violated, where one who is within a building unfastens any secured part of it, and afterwards returns and effects an entry (3); or where a servant, acting in concert cert with thieves with thieves, undoes fastenings to enable them to Thief rushing in enter (4); or where the thief by knocking or ringing causes the door to be opened, and rushes in (5). But the violation must be of the building itself. Climbing over the wall or railing of the yard in which it is situated is not housebreaking. Servant in con when door opened. OPENING DOORS. door fastened by behind it. a weight placed Housebreaking may be committed by opening any outer door of a building which is secured. It is an Question where undecided question whether it constitutes housebreaking to force open a door not secured in the ordinary manner, but by some weighty article, such as a chest, placed against it (6). The question would probably resolve itself into one of proof. If a weight is placed against a door merely to prevent it swinging open, it would not be housebreaking if, in opening the door in the ordinary way, the weight so placed were pushed aside. But if the article placed there for security be so heavy as to present a positive obstruction, and to require force for its removal, then there seems little difference between bursting open a door so secured, and forcing one secured by a piece of wood nailed across the back of it, which would undoubtedly be housebreaking (7). Though no force be employed, 1 Hume i. 100, and cases of Watson Mills and Stewart and Robertson there, and cases of Johnston and Riddell: and Allan in note 2, and cases of Love: Anderson: and Johnston in note 3. 2 Hume i. 90, case of Courtney there, and case of Hunter in note 5. -Alison i. 282.-John Mann, Feb. 13th 1837; Bell's Notes 37. 3 Hume i. 99.-Alison i. 287. 4 Hume i. 101.-Alison i. 287. 5 Hume i. 100.-Alison i. 287. This might with propriety be called stouthrief. 6 Ann Mackenzie, H.C., Dec. 15th 1845; 2 Broun 669. 7 Hume i. 100, case of Allan in note 2.-James Arcus, H.C., July 25th 1844; 2 Broun 264. The in authorised use of rally entrusted housebreaking the opening of a door may still be housebreaking, OPENING DOORS. If false keys or picklocks be used (1), or if the true False key, or unkey be found or stolen, or obtained by false pre-true key. tences (2), or be taken from a place where it has been hid by the owner (3), or be illegally kept by a servant after he has left the owner's employment (4), and be used to open the door, housebreaking is committed. Still farther, if a person receive a key for the purpose of carrying it to the owner, and use it to enter the house and steal, he is guilty of housebreaking. Whether this would hold in the case of a shopman Can person geneentrusted with the ordinary keeping of the key, has with key commit not yet been decided (5). It would be difficult in with it. such a case to hold that the shopman had violated security. The entrusting of the key to him by the master indicates that he does not rely on his locks to protect him from this individual. It is similar to the case of a master giving a key of his own office-desk to his head clerk. In such a case, "theft, especially when committed by means of opening lockfast places,' could scarcely be a proper charge, the owner having given the right to open the desk. It would undoubtedly be housebreaking if the shopman who was entrusted with the key, was to enter, not by means of the key, but by some other mode, as by breaking open a back window. secured. To constitute housebreaking by opening doors, they Door must be must have been secured. It is not housebreaking to dictment was not objected to on this ground, though it was on another. Forcing open a door, described as "nailed up," has been beld sufficient. John Paterson, H.C., Jan. 6th 1842; (Lord Moncrieff's MSS.). 1 Hume i. 98, 99, and cases of Snaill Pringle: and Smith and Brodie there.-Alison i. 284. 2 Hume i. 98, and cases of Fraser and Gunn and Thompson and others, in note a.-Alison i. 284.- 3 Alison i. 285, and case of Mac- 4 Henry V. Jardine, H.C., July 19th 1858; 3 Irv. 173. 5 John Farquarson, H.C., June 26th 1854; 1 Irv. 512 (Lord Justice General M'Neill's opinion). OPENING DOORS. open a door by the handle, or by lifting the latch (1), or removing a hook and eye check from the outside (2). Key left in lock. Even if the door be fastened by a key which is left in the lock, it is not housebreaking to turn the key and enter, for it is in these circumstances nothing more Question-key than a handle (3). It has not yet been decided whether in the case of a key taken out of the door, but left hanging on a nail in sight of the thief, housebreaking is committed if he take down the key and Removing inside use it (4). It is housebreaking if an inside fastening hanging on wall in sight. fastening. ENTERING BY be removed, as by cutting a hole, inserting the hand, and raising a latch which has no handle on the outside, or by passing a knife through a chink, and working a bolt out of its socket (5). It may even be housebreaking to pass the hand through a hole in a door, though not made by the thief, and so raise the latch, if that be not the ordinary mode of opening the door (6). A window not being a proper entrance, it is housebreaking to raise a window and enter, though it be Closed or partly not fastened (1). And this holds though the window be slightly open, if the thief, in order to get access, raise the sash higher (2). But it is not housebreaking open window. 1 John Smith or Stevenson, Glasgow, April 29th 1834; Bell's Notes 36. 2 Alison i. 286.-Janet Wilson, March 15th 1837; Bell's Notes 37. -John Anderson, H.C., Nov. 17th 1862; 4 Irv. 235. 3 This was decided, after conflicting decisions, in Peter Alston and Alex. Forrest, H.C., March 13th 1837; 1 Swin. 433 and Bell's Notes 37.-Alison i. 285, 286 contra. 4 See the case Alston and Forrest, supra. (Lords Mackenzie's, Moncrieff's, and Medwyn's opinions), also Henry V. Jardine, H.C., July 19th 1858; 3 Irv. 173. (Lord Deas' opinion.) 5 Hume i. 98.-John Devine and WINDOWS. housebreaking. to enter by an open window (1), if it be not opened ENTERING BY further, unless it was in such a position that there Entering by open was no special risk in leaving it open. For it would window not appear, although it has never been expressly decided, Unless in upper that if the open window be on an upper floor (2), or in the roof (3), it would be housebreaking to enter by it. part of building. broken pane. Unsecured folding blinds, inside an open window, Folding blinds. and which a puff of wind might open, would probably not be held such a protection to a house, as to cause entering by the open window to be held housebreaking (4). Where a loose board was placed behind a Board behind broken pane, and the thief pushed the board aside, and took out articles, the charge of housebreaking was held not to be established (5). It might be different in the case of a broken pane, which could only be reached by climbing (6), or of a blind in a fixed frame. If such a blind were pushed down, or if bolts fastening Frame blind it were drawn, this would probably be held house- sash. breaking. Whether it would be held housebreaking to enter by an open window, not on an upper floor, if it were necessary to climb over an outside railing, in Climbing railing order to reach it, is a question which is somewhat involved in doubt, as the same case has been quoted in support of opposite sides of the argument (7). Bell's report says that a charge of this kind was found relevant. The Jurist Report states that the Court laid it down that in such a case housebreaking was not committed. And this is confirmed by Mr Steele. The 1 Hume i. 98.-Alison i. 283.-Jas. Hamilton and others, Nov. 6th 1833; Bell's Notes 38. 2 Hume i. 98.-Alison i. 283. Rob. Clapperton, H.C., Dec. 9th 1833; Bell's Notes 36. 3 See notice by Lord Cowan, of an unreported case in John Carrigan and Thos. Robinson, Glasgow, Oct. 7th 1853; 1 Irv. 303. Mr 4 Will. Mackintosh and Peter Murray, H.C., Nov. 2d 1846; Ark. 133. 5 Will. Vair and others, March 13th 1835; Bell's Notes 39. 6 Will. Anderson, May 14th 1840; Bell's Notes 199. 7 Will. Campbell or Cameron, July 12th 1832; Bell's Notes 38 and 4 S. J. 591 and Steele 121. bolted to window to open window. C ENTERING BY Question where entrance by mistake is undoubtedly Mr Bell's. The Jurist Report shows that the Court were prepared to hold the libel relevant, only because it averred a fact which amounted to housebreaking, viz., that the window was opened by the thief, but that "should it appear that the window was open at the time of the theft, and that it had "not been forced open by the panel, there was nothing "in the libel which could support a verdict of guilty "of the housebreaking, as no species of access to the "window could constitute housebreaking, unless the "window were of itself out of ordinary reach, and it was not libelled as having been so." This is quite consistent with the principle already stated, that it is not housebreaking to climb over the wall of a yard, and so obtain an entrance, without further violence, into a building within the yard (1). It may not be housebreaking to raise a window and window usual, enter, if that be an ordinary mode of access, and if the accused have been previously permitted by the proprietor to enter in that manner (2). But though the proprietor go in and out by a window occasionally, still if the window being closed, be opened by the thief, housebreaking is committed (3). Entering by other openings than doors or windows. Cases have occurred of theft by entering at apertures not being either doors or windows. A charge of housebreaking by entering a shed through an open hole above the door, six feet from the ground, was passed 1 See also Will. Barclay and Elizabeth Colquhoun or Temple, May 31st 1830; Bell's Notes 37. The following account is written on the margin of the indictment in this case, belonging to the late Lord Wood-"There was a win"dow 30 feet from the ground "which was left open, an outer "stair of considerable length brings 66 you close to the window, there is "the railing of the stair near to "the window, and the window "being about the height of the "railing or three feet, and by step"ping on the railing you can pass "over at the window and thus get "entry to the house." The note adds, "spoke to the Court," i.e., before withdrawing the aggravation. 2 Jas. Davidson, Glasgow, Dec. 21st 1841; 2 Swin. 630 and Bell's Notes 38. 3 Will. Martin and others, June 11th 1832; Bell's Notes 38. |