Slike strani

from (1). And a similar charge was held not estab- ENTERING BY lished where the opening was twelve feet from the ground, and had a flap door to it, but whether open or shut could not be proved (2). But where the opening was in the roof and could only be reached by a ladder, it was held to be housebreaking to enter by it (3). And where an upper loft used as a drying shed had intervals in the sides like a Venetian blind, it was held to be theft by housebreaking to climb up and abstract articles through the openings (4).

The security having been violated, the theft may be ENTRANCE. completed without the thief being actually within the premises. If he carry off anything by inserting his hand (5), or even if he draw articles towards him with Entry of person a stick or hook, the theft is complete (6), and this, although he have not got them into his hand at

not necessary.

all (7).

The question has been raised, and left in doubt, BREAKING OUT whether a person who hides in a building, and after stealing, breaks out to escape, is guilty of housebreaking One work quotes a judge as having held such an act not to be housebreaking (8), and the same judge is stated to have said subsequently, “ that he “ had known a case where the Court sustained an “ aggravation of housebreaking, the party having “ broken out of a house which he entered for the


1 Helen Dott, June 8th 1829; Bell's Notes 35.-See also John Carrigan and Thos. Robinson, Glasgow, Oct. 7th 1853 ; 1 Irv. 303.

2 Archibald Duncan and Chas. Mackenzie, Dec. 30th 1831; Bell's Notes 35.-But see Will. Anderson, May 14th 1840; Bell's Notes, 199.

3 Case referred to by Lord Cowan in John Carrigan and Thomas Robinson, supra note 1.

4 Will. Boyd and others, Ayr, April 22d 1845 ; Lord Justice Clerk Hope's MSS.

6 Hume i. 101, 102, and case of Gadesby there. -Alison i. 288, 289. -Margaret Fitton and others, June 7th 1830; Bell's Notes 39.-Will. H. Wightmen, July 12th 1832 ; Bell's Notes 39.-Will, Harvey, Nov. 7th 1833 ; Bell's Notes 39.

6 Hume i. 102. Will, Vair and Simon Meadowcroft, Dec. 2d 1834 ; Bell's Notes 39.

7 Cornelius O'Neil, H.C., March 10th 1845 ; 2 Broun 394.

8 Lord Mackenzie in the case of Edward Kennedy, Dumfries, April 11th 1831 ; Alison i. 288.

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purpose of committing a theft” (1). The tendency seems to be to hold that it does not constitute the aggravation (2). Where a person being in a house steals, the theft is completed whenever he has taken the articles from where they were.

The housebreaking is, therefore, subsequent to the theft (3).

Shipbreaking is an aggravation of theft (4). The rules applicable to housebreaking are, for the most part, equally so to shipbreaking. It has been held shipbreaking, to break open the door of a cabin (5).

It is an aggravation of theft that it is committed

by “opening lockfast places.” This includes breakRooms, closets, ing into rooms or closets within a house (6), or cabins secured by lock. in a ship (7), or any article, the contents of which are Charge good protected by lock and key. It does not necessarily he housebreak- make a charge of this scrt irrelevant, that the facts

set forth might have been charged as housebreaking. Where the accused was not charged with having been


though facts may


1 Christian Duncan, Aberdeen, April 24th 1849; J. Shaw 225.

2 Hume i. 101, and cases of MacKenzie : and Wright there.— Alison i. 288.-Will. Barclay and Elizabeth Colquhoun or Temple, May 31st 1830 ; Bell's Notes 39 and 2 S. J. 430. The Jurist report bears that the Court were of opinion that there were grave difficulties in the way of its being held as law, that the crime of housebreaking is otherwise constituted than by violent entry. - Mary A. Webster, July 19th 1831 ; Bell's Notes 39.- The MSS. of the Lord Justice Clerk Hope, contain the following in the case of Will. M'Cafferty, and Alexander Glendinning, H.C., Jan. 28th 1850. “Mr Graham objected to alterna“tive as not housebreaking-con6 cealment in shop and opening " door on inside--breaking out not “housebreaking. Advocate Depute " said, alternative not insisted in as a charge of housebreaking.”

3 See the case of Joan Reid and Helen Barnet, H.C., Feb. 19th 1844; 2 Broun 116, where the somewhat analogous point arose whether robbery could be constituted by a thief using violence to retain an article which had been taken clandestinely.

4 Nathanael Scott, Perth, April 30th 1844 ; 2 Broun 184.-William Inglis and Kenneth Gillvear, Perth, April 21st 1848, Ark. 461.

5 Thomas J. B. Guthrie and Jas. Convery, Stirling, April 11th 1867 ; 5 Irv. 368 and 39 S. J. 387.

6 Mary Young or Gilchrist and Cecilia Hislop ; Bell's Notes 34. — Houston Cathie, Nov. 10th 1830 ; Bell's Notes 34.

7 John Henderson and Will. Craig, Glasgow, Sept. 15th 1836 ; 1 Swin. 300 and Bell's Notes 35.Rob. Mill Perth, April 24th 1838; Bell's Notes 35.


lockfast to steal

within the premises before the offence, and the break-OPENING LOCKing consisted in forcing open the door of a cellar ; the objection that this was housebreaking, and not opening lockfast places, was repelled (1).

Theft by opening lockfast places is committed whether the thief use force (2), or false keys, or pick-Force-false keys

-true key aplocks (3), or the true key (4), uuless it have been left plied by thief. in the lock (5). And where a drawer fastened by a lock has been forced out of its place and removed, the theft of the contents is complete, though they be left in the drawer (6). And on the same principle, if a Not opening locked box be stolen, the subsequent opening of the box and after

wards open. box and taking out the contents is not a theft by opening lockfast places, the articles having been in law stolen when the box was carried off (7). It is doubtful whether this is a substantive aggra- Mast this aggra

vation be vation. It appears to have been decided that it is ally charged. only a description of a particular mode (8), and this

1 John Sutherland, Perth, Sept. Notes 35.- The following note oc. 24th 1841 ; Lord Moncrieff's MSS. curs to the case of Samuel Lusk and His Lordship's note is as follows: others, H.C., Jan. 8th 1828, in Lord —“ Objection to relevancy of lock- Wood's MSS.:-" The Court thought

fast places--that what is laid is " the place was not lockfast, behousebreaking, because it is not cause the key was in it." “ stated that prisoner was within 6 Jas. Smart, 13th July 1837 ; “ the premises : Repelled. The Bell's Notes 19.

statement seems sufficient that 7 Jas. Stuart and Alex. Low, “ he was servant to John Russell, Aberdeen, April 15th 1842; 1 “ and that he occupied the house Broun 260 and Bell's Notes 34.-See

at the time. But separately, no also David Walker, Stirling, Sept. “ rule to preclude prosecutor from 3d 1836 ; 1 Swin. 294 (Lord Justice

charging minor aggravation of Clerk Boyle's charge).—This was a lockfast places as to such a place case of breach of trust, but the prin-a cellar."

ciple is the same. Indeed, as will 2 Alison i. 295.

be afterwards observed, it might 3 Alison i. 295, 296.

have been charged as theft. 4 Alison i. 296.-Hugh Hosey, 8 Jas. Anderson, H.C., Nov. H.C., Dec. 3d 1826 ; Syme 28.- 8th 1852; 1 Irv. 93.-James Joss, Galloway and Sutherland, Nov.10th H.C., May 21st 1821 ; 1 Irv. 93 note 1829; Bell's Notes 35.-Houston and Hume i. 90 note, and ii. 170 Cathie, Nov. 10th 1830 ; Bell's note a.–See also Geo. Sutherland Notes 34.- Rob. Horn and James and Chas. Turner, H.C., 12th Maclaren, Jan. 24th 1831 ; Bell's July 1833; Bell's Notes 179.Notes 35.

John Dougan and John Halket, 6 Alison i. 296. — Alex. Napier H.C., May 19th 1843 ; 1 Broun and others, March 15th 1831 ; Bell's 555 and Bell's Notes 191.



seems to have been Hume's view, for he says, that a crime of this sort does not receive “any peculiar appellation (1). The decisions, however, appear to have been in cases where the theft was charged generally to have been committed by means of housebreaking, and they are not reported so as to lead to a satisfactory conclusion (2). But whatever may be their weight, it is certain that the practice is still unchanged of charging the opening of lockfast places as an aggravation,

Child stripping is an aggravated mode of committing theft (3).

Drugging the owner or custodier of the property is

an aggravation of theft (4). At first sight it might Question whether appear that this was robbery (5). But it is thought

that it is truly theft. The case of a woman ravished after being drugged is not analogous (6). The will is destroyed by the drug in the case of the woman, to prevent her resistance. And the law presumes that resistance would have been made but for the drug




1 Hume i. 98.

2 It would rather appear ftom the case of Elizabeth Hall, H.C., Dec. 26th 1626 ; Syme 47, that the case of Joss (previous note) was not held to fix that, where the higher aggravation of housebreaking was not charged, opening lockfast places was not a substantive and high aggravation. It is to be observed that the notices of the case of Joss do not exactly correspond.

3 Hume i. 91, cases of Irvine and M‘Beath in note a.-Alison i. 309, and case of Dunlop there. There are indictments in the Advocates' Library Collection in which theft from the custody of young children has been charged as an aggravated species of theft, although the things taken were not articles of the child's dress. But these cases are of old date, and it is difficult to see

in what the aggravation consists in such a case.

4 David Wilson and others, Dec. 22d 1828 ; Bell's Notes 22.- See also John Stuart and Catherine Wright or Stuart, H.C., July 14th 1829; Bell's Notes 22.

6 See observations, Bell's Notes 22.

6 In the Lord Justice - Clerk Hope's MSS. Notes to Hume, the following occurs in reference to Mr Bell's comparison between the cases of rape and of theft—"Rape clearly "-but then in that case there are

two crimes to choose between. “ The person is violated against the “ woman's will, and without her consent.

But there is no one “ element in case stated of the “ crime of robbery as distinct from " theft,"



ging But in the mere taking of property, there is THEETING no presumption that the thief contemplates resistance, or even that the owner will know of the theft at the time. The theft is most likely to be clandestine, and without interference with the will of the owner at all. Means may be used to draw off attention, and it is thought that this is what is done in the case of drugging. The drugging is in itself criminal, and is an aggravation of the theft; but it is only a means of overcoming vigilance, not of subduing the will, and therefore does not constitute robbery (1).

There are many cases in which theft is committed Theft of PROwhere the custody of the property was with the thief, either accidentally, or from a limited custody of it having been given by the owner or true custodier. If a debtor accidentally make an overpayment, and the Retention of

overpayment. creditor knowingly retain it, he is guilty of theft, whether the overpayment be made directly to himself, or to another on his account (2). The same holds of or of found

property. a person finding property and appropriating it, although aware to whom it belongs (3). The question is more Finder not difficult where the finder is ignorant to whom the pro

knowing owner. perty belongs. His retention in such a case is no offence, and is presumed to be on behalf of the owner (4). His knowing it not to be his own is of no consequence. That is the position of every finder (5).

1 Of course if the drugging were Black, March 16th 1841 ; Bell's combined with other circumstances, Notes 14.–Thos. Scott, H.C., Nov. such as holding the person down 11th 1853 ; 1 Irv. 305.-Hume i. until the drug. took effect, or the 62 contra. like, a relevant charge of robbery 4 Local Police Statutes, in many might be constituted.

cases, contain a provision that 2 Rob. Potter, Glasgow, May finders of lost property shall be 2ud 1844; 2 Broun 151. This may guilty of an offence, and liable to be held to overrule such a case punishment, if it be not given up to as that of Field; Hume i. 62 the police within a certain period. note 3.

6 Angus M‘Kinnon, H.C., May 3 John Smith, H.C., March 12th 25th 1863 ; 4 Irv. 398 and 35 S.J. 1838 ; 2 Swin. 28 and Bell's Notes 512. · Dalgleish or Blaikie and 13. --Jane Pye, Perth, Oct. 3rd 1838; Blaikie v. Gair, H.C., June 14th 2 Swin. 187 and Bell's Notes 14 1859; 3 Irv. 425 and 31 S. J. 528 Rob. Black and Agnes Scott or (Lord Neaves' opinion.)

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