by any unlawful violence to, or restraint of the person of another, or by any threat of such violence or restraint, or

by accusing, or threatening to accuse, any person of treason or felony, or any such crime as is mentioned in clause a. ii. ; or

1

(d.) who, with menaces or force, demands any valuable thing of any person with intent to steal the same (2 whether the thing demanded is received or not.)

3 It is immaterial whether the menaces or threats mentioned in clauses a. i., a. ii., b., c., and d. be of violence, injury, or accusation to be caused or made by the offender or by any other person.

The expression "valuable thing" in this article means any property, chattel, money, valuable security, or other valuable thing.

any valuable security, or to write, impress, or aflix his name, or the name of any other person, or of any company, firm, or co-partnership, or the seal of any body corporate, company, or society, upon or to any paper or parchment, in order that the same may be afterwards made or converted into, or used, or dealt with as a valuable security."

124 & 25 Vict. c. 96, s. 45, S. R. v. Ogden (L. & C. 288) shews what sort of menaces fall within this section. A obtained five shillings from B by pretending to be a bailiff, and threatening to distrain. It was held that his guilt depended on the question whether or not he made the threat in such a way as to "unsettle B's mind, and take away from his acts that element of free, voluntary action which alone constitutes consent."

2 R. v. Robertson, L. & C. 483. In that case it was held that a policeman who said he would lock a man up for speaking to a prostitute unless he received five shillings used a "menace," notwithstanding his having no power to do so.

324 & 25 Vict. c. 96, s. 49. There is no similar section in the Act relating to offences against the person (see Article 234 (a.) ), or in the Act relating to malicious injuries to property, from which a. ii. and a. iii. are taken. I think, however, both on authority and on principle, that those clauses would be construed as if there The language of the sections on which this Article is founded has been condensed and rearranged, but it will be found on examination that the Article accurately represents the seven sections which it embodies. As to threats to publish libels with intent to extort see Art. 278, p. 207.

were.

CHAPTER XXXVIII.

1 BURGLARY, HOUSEBREAKING, ETC.

ARTICLE 315.

DEFINITIONS.

In this chapter the following words are used in the following senses:

2 Night means the interval between nine of the clock at night and six of the morning.

House means a permanent building in which the owner, or the tenant, or any member of the family habitually sleeps at night.

3 If a building is so constructed as to consist of several parts having no internal communication between each other, and if these parts are occupied and habitually slept in by different tenants, they may constitute separate dwellinghouses.

4 A building occupied with and within the same curtilage with any dwelling-house, is deemed to be part of the said dwelling-house if there is between such building and dwelling-house a communication either immediate or by means of a covered and inclosed passage leading from the one to the other, but not otherwise.

The word "break means

(a.) the breaking of any part, internal or external, of the

13 Hist. Cr. Law, 150. Draft Code, Part XXVIII., ss. 297–308.

224 & 25 Vict. c. 96, s. 1. It may be worth while to observe that the expression "nine of the clock," "six of the clock," indicate mean as opposed to solar time, but a question might arise as to whether they mean local mean time or the mean time commonly observed at any given place. London time, or, as it is called, railway time, is now very generally observed, and there is a difference of more than twenty minutes between London and Cornwall. Local mean time is the natural meaning.

The cases and authorities on this subject are collected in Archbold, 518–520, but there is so little principle in the matter, and each case depends so much on its peculiar circumstances, that I have not thought it advisable to give illustrations, 24 & 25 Vict. c. 96, s. 53.

building itself, or the opening by any means whatever (including lifting, in the case of things kept in their places by their own weight) of any door, window, shutter, cellar flap, or other thing intended to cover openings to the house, or to give passage from one part of it to another, and getting down the chimney;

(b.) obtaining an entrance into the house by any threat or artifice used for that purpose, or by collusion with any person in the house.

The word "enter" means the entrance into the house of any part of the offender's body, or of any instrument held in his hand for the purpose of intimidating any person in the house, or of removing any goods, but does not include the entrance of part of an instrument used to break the house

open.

Illustration.

1A opens a sash window, puts a crowbar under a shutter three inches inside the window, and tries to break open the shutter, but was not within the sash window. Here there is a breaking, but no entry.

ARTICLE 316.

ROBBING PLACES OF WORSHIP-BURGLARY.

Every one commits felony, and is liable upon conviction thereof to penal servitude for life as a maximum punishment, who

(a.) 2 breaks and enters any church, chapel, meeting-house, or other place of divine worship, and commits any felony therein; or

(b.) 3 breaks and enters any dwelling-house by night with intent to commit a felony therein. The offence in this case is called burglary.

ARTICLE 317.

HOUSEBREAKING AND COMMISSION OF FELONY.

Every one commits felony and is liable, upon conviction

1 R. v. Rust, 1 Moo. 183; and see R. v. Roberts, 2 East, P. C. 487.

224 & 25 Vict. c. 96, s. 50, S.

Ibid. s. 52, S. for punishment; 2 Russ. Cr. 2 (5th ed.), for definition,
Ibid. ss. 55, S. and 56, S.

thereof, to a maximum punishment of fourteen years penal servitude, who breaks and enters and commits any felony in any dwelling-house, or any building being within the curtilage of a dwelling-house and occupied therewith (but not being part thereof within Article 315), or any schoolhouse, shop, warehouse, or counting-house.

ARTICLE 318.

ENTERING DWELLING-HOUSE WITH INTENT.

1 Every one commits felony, and is liable upon conviction thereof to seven years penal servitude as a maximum punishment, who breaks and enters any of the buildings mentioned in Articles 316 or 317, or who by night enters any dwelling-house with intent in either case to commit felony therein.

ARTICLE 319.

BREAKING OUT AFTER COMMITTING FELONY.

2 Every one who, being in any of the buildings mentioned in Articles 316 or 317, commits a felony therein, and breaks out of the same, commits felony, and is liable to the same punishment as if he had broken in and committed felony therein. If such building is a dwelling-house, and the offence is committed at night, the offender commits burglary.

Every one who enters any dwelling-house with intent to commit a felony therein, and breaks out of the same by night, is guilty of burglary.

ARTICLE 320.

BEING FOUND IN POSSESSION OF HOUSEBREAKING INSTRUMENTS.

3 Every one commits a misdemeanor, and is liable for the first offence to a maximum punishment of five, or if he has been previously convicted of felony or of such misdemeanor, of ten years penal servitude;

124 & 25 Vict. c. 96, ss. 54, S., and 57, S.

2 Ibid. ss. 50, 51, 55, 56, S. These sections are re-arranged.

3 Ibid. ss. 58 and 59.

1

who is found by night armed with any dangerous or offensive weapon or instrument whatever with intent to break or enter into any dwelling-house or other building whatsoever, and to commit any felony therein;

or is found by night having in his possession, without lawful excuse (the proof of which excuse lies upon him), any picklock key,' crow, jack, bit, or other instrument of housebreaking:

or is found by night having his face blackened or otherwise disguised with intent to commit any felony;

or is found by night in any dwelling-house or other building whatsoever, with intent to commit any felony therein;

A common key may be such an instrument. R. v. Oldham, 2 Den. 472. Maule and Cresswell, JJ., were both of opinion that there should be a comma between "picklock" and "key." R. v. Oldham, however, makes this unimportant.