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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Neid [1828] NSWSupC 97

burglary, dwelling house

Supreme Court of New South Wales

Dowling J., 20 November 1828

Source: Australian, 21 November 1828

Patrick Neid was charged with breaking and entering the dwelling-house of James Rooke, in Pitt-street, Sydney, on the 15th of October last.[1 ]

James McGuiness, a Sydney constable, deposed, that on a Sunday morning, in the middle of October, happening to be on duty about two o'clock, and coming up Pitt-street, calling the hour, he overheard several persons whispering together close to Mr. Rooke's, a cabinet maker's.  The night was rainy and dark, but, with the aid of the lamps, witness perceived two men in the middle of the road, whom witness, and his associate constable, upon hearing a crash, as if from the breaking of glass, sprang upon, and seizing the prisoner as he was standing under the window, the upper sash of which was lowered down, secured him, the second person running off. - A colloquy.

Cross examined, by Mr. Rowe, I am a little hard of hearing at times.  (A laugh)  When I first saw prisoner, it was underneath the window.

The learned Judge interrupting Mr. Rowe, asked the Attorney-General, if this was the only evidence he was prepared to call to prove an entry into the house in question, for if so, what legal proof he asked would there be to support the information?

The Attorney-General. -  I apprehend, your Honor, it is not necessary that an entry should be proved to constitute a burglary.  With regard to entry, it is stated here - (quoting from a law authority.)

The Judge - The law says breaking and entering.

Mr. Rowe - The entry of an instrument is insufficient.  (Vide Archbold.)

The Judge - The slightest proof of entry of a man's person or stick would be sufficient.  But all that the evidence has stated is, that he heard the sudden crash of a window, and found the prisoner standing under it in the main street.

Attorney General - But I can prove that an iron crow bar was found near to where the prisoner was seen standing, at the time the window was heard to crash.

Judge - Granted - the crow bar might in all probability have been the instrument used to cause the breaking of the window.

Attorney General - But your Honor, we may fairly presume ---

Judge - We cannot presume in a case where a man's life is concerned.

Prisoner's Counsel - I contend, your Honor, that if even the crow bar had been found inside the window, it would not be sufficient to support the information charged against the prisoner.

Judge - Upon this one witness's testimony depends a man's life.  We must not strain a point to bring about a conviction.  There is no proof whatever of an entry - all that the evidence goes to prove is a breaking, but this is not enough - there must also be an entry, in order to make the crime of burglary complete.  The object of entering is de facto a breaking into the house with intent to steal.  Non constat, this man might have gone to the house in question to see his sweetheart.

Attorney-General - After what your Honor has observed, I will no longer take up the time of the Court.  This case was pressed upon me to be brought on this morning; and in the hurry of business I did not examine, with any degree of minuteness, into its merits.  It is certainly a very nice point to determine.

The Judge - Oh, it certainly is; and then addressing the Jury, his Honor directed them to discharge the prisoner; who, on the Jury recording a verdict of not guilty, was admonished by the Learned Judge to be more careful of his deportment in future - observing, that if the issue of the arguments had gone against him, in all probability his life would have been forfeited to the law.  The prisoner was then discharged by proclamation.

Notes

[1 ] See also Sydney Gazette, 21 November 1828.

Published by the Division of Law, Macquarie University