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CASES

AT

NISI PRI U S.

COURT OF KING'S BENCH.

Sittings at Westminster after Hilary Term, 1832.

BEFORE LORD TENTERDEN, C. J.

1832

Rex v. Eliza Smyth and Three Others.

Feb. 181. INDICTMENT for a forcible entry into the house of an indictment

for a forcible enWilliam Henry Carmichael Smyth. Plea-General issue. try cannot be It appeared that the defendant Mrs. Smyth was the wife supported by

evidence of a of the prosecutor Mr. Carmichael Smyth, and that she, mere trespass, under the description of Mrs. Anne Smyth Carmichael, be proof of such

force, or at least had, on the 12th of November, 1829, taken the house in such shew of question for her own residence; and that Mr. Smyth and force, as is cal

ance.

culated to pre

vent any resistIf a wife, separated from her husband, take a house of which the husband, with the landlord's consent, obtains possession :- Semble, that if the wife come with others and make a forcible entry into this house, she may be convicted on an indictment for a forcible entry, stating it to be the house of the husband.

If a married woman take a house, in which a burglary is committed, the house must be laid as the house of the husband, although she be living separate from him.

Where a constable entered a house with a warrant in his hand, and searched it, and for such entering and searching was indicted for a forcible entry:~Held, that his counsel might ask the witnesses for the prosecution what the constable said at the time as to whom he was searching for.

Where an indictment is tried at Nisi Prius, the nisi prius record does not shew what names were on the back of the indictment.

Where an indictment is founded on a written instrument, and where the instrument itself is the crime, it is receivable in evidence, although not stamped; but where the indictment is for an offence distinct from the instrument, and the instrument be only introduced collaterally, it cannot be received unless it be properly stamped.

VOL. V.

1832.

REX

SMYTH.

his servant, on the 17th November, had gone to the house with the consent of the landlord, and obtained possession of it, a man named Teresias being by them put into possession. It was also proved, that, on the 18th of November, Mrs. Smyth came to the house with two or three men, and knocked at the door; and that, on being refused admittance, Mrs. Smyth and one of the men got over the railings in front of the house; and the man, having broken a pane of glass, pushed down the upper sash of the window and got into the house, and he having opened a door, Mrs. Smyth went in and told Teresias that he had better go out peaceably, or they would put him out. Teresias then went out, leaving Mrs. Smyth and her party in possession.

C. Phillips, for the defendants Goddard and Schofield, who were constables, applied to have Mr. Smyth called as a witness, as his name was on the back of the indictment.

Lord TENTERDEN, C. J.-The original indictment is not here, and the nisi prius record does not shew what names were on the back of the bill.

Mr. Smyth was not called (a).

Cockburn, for the defendant Mrs. Smyth.--I submit that my client must be acquitted. She is indicted as the wife of the person whose house she is charged with having entered. It is clear, that no man could be indicted for a forcible entry into his own house, neither, as I submit, can a wife be indicted for a forcible entry into the house of her husband. Mr. Serjeant Hawkins says (d)—“ It seems

(a) On the trial of an indictment for a forcible entry under the statute 8 Hen. 6, c. 9, and 21 Jac. I, c. 15, the party dispossessed is not a competent witness for the prosecution. Rex v. Wil

liams, 4 M. & R. 471, and 9 B. & C. 549.

(6) i Curw. Hawk. B. 1, c. 28, s. 32, citing Moore, 786; Cro. Jac.

2 heb. 495.

18;

1832.

Rex

SMYTH.

clear that no one can come within the intention thereof (i.e. of the statutes relating to forcible entry), by any force whatsoever done by him in entering into a tenement whereof he himself had the sole and lawful possession both at and before the time of such entry, as by breaking open the door of his own dwelling-house, or of a castle which is his own inheritance, but forcibly detained from him by one who claims the bare custody of it, or by forcibly entering into the land in the possession of his own lessee at will.” That being so, I submit that the possession of the wife and the husband is identical, as the common law takes no notice of any separate possession of the husband and wife. Indeed, the possession of one is not only the possession of the other, but it is the duty of the wife to be in the house of her husband, and as she cannot be a trespasser in entering the house of her husband, she cannot be guilty of this offence, as it includes a trespass. Great inconvenience would be sustained if such indictments as the present could be preferred, as the wife could have no remedy against her husband for malicious prosecution.

Lord TENTERDEN, C. J.-If a married woman takes a house, and a burglary be committed in it, it must be laid as the house of the husband, although she be living separate from him; therefore, this house is properly laid as the house of Mr. Smyth. If it was a mere trespass, I quite agree with you, that the wife could not be a trespasser; but if she comes with a number of persons, and with the strong hand, I have great doubts, because it tends to a breach of the peace. However, you can have the advantage of this point hereafter, if it should become necessary.

A witness for the defendant stated, that the defendant Goddard searched the house, having a warrant in his hand, Schofield being with him.

1832.

C. Phillips wished to ask the witness, whether, at the time of this searching, Goddard said for whom he searched ?

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Archbold, for the prosecution.- What Goddard said is not evidence in his own favour.

Lord Tenterden, C. J.-We may hear what he said at the time, as to who he was searching for (a).

The witness said, that he stated that he was searching for Mr. Smyth.

The agreement under which Mrs. Smyth had taken the house was offered in evidence. It was not stamped.

Lord TENTERDEN, C. J.-Where the indictment is founded on the instrument, the want of a stamp does not signify. That is, where the instrument itself is the crime; but here the indictment is for a forcible entry, and this instrument is introduced collaterally. I therefore cannot receive it without a stamp.

The agreement was not read.

Lord TenterDEN, C. J., (in summing up).-An indictment for a forcible entry cannot be supported by evidence of a mere trespass, but there must be proof of such force, or at least such a shew of force, as is calculated to prevent any resistance. In point of law, although Mrs. Smyth had taken the house separately from her husband, it must be taken to be his house; but still she would have a right to enter the house of her husband. However, if you should think that she came with violence and the strong hand, or at least such shew of force as to prevent any resistance, I think, as at present advised, that she would be guilty of this offence, notwithstanding her being the wife of the

(a) See the case of Rex v. Crutchley, ante, p. 133.

205

1832.

REX

v.

SMYTH.

party whose house this is alleged to be. Whether the two officers went for the purpose of increasing the shew of force, is for you to consider; but if you think that they went either to prevent a breach of the peace, or to take Mr. Smyth on a warrant, they must be acquitted. If you acquit them, there only remain Mrs. Smyth and one man. There is no doubt, that a great number of persons being present does increase the shew of force; but, if you think that Mrs. Smith and the third man were all that were concerned in getting possession of this house, you will say whether their presence, and the breaking of a window, is such a shew of force as will satisfy the present charge (a).

The Jury found all the defendants—Not Guilty.

Archbold, for the prosecution.

Platt and C. Phillips, for the defendants Goddard and Schofield.

Cockburn, for the defendant Mrs. Smyth.

(a) See the case of Milner v. Maclean, ante, Vol. 2, p. 17.

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