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

R v Hinton (1831) NSW Sel Cas (Dowling) 334; [1831] NSWSupC 6

burglary, meaning of "breaking"

Supreme Court of New South Wales

Stephen J., 20 January 1831

Source: Sydney Gazette, 22 January 1831

Robert Hinton was indicted for a burglary in the dwelling-house of David Power, at O'Connell Plains, on the 25th of August last.

It appeared in evidence, that the prisoner with two other men, one of whom was admitted as an approver, were runaways from an iron gang, at the period when the burglary was committed, that, on the night of the day laid in the information, they went to the hut of the prosecutor, at O'Connell Plains, where two of the party, one of them being the prisoner, effected an entrance down the chimney, and carried off several articles of wearing apparel.

In the course of evidence it appeared, that the chimney, down which the robbers entered the hut, was built of sods, sufficiently wide to admit of two persons descending together, had they wished to do so, and so low, that when standing within it, on the floor of the hut, the top could be reached outside with the hand.

The learned judge stated, that he had very considerable doubt how far an entry through such a place could constitute such a ``breaking and entering" as was necessary to establish the offence of burglary.

Mr. Rowe, on the part of the crown, stated, that it had been already decided that an entry made down a chimney into a dwelling-house was a ``breaking and entering" within the meaning of the Act, sufficient to constitute a burglary.

His Honor said he was aware of the case alluded to by the learned counsel; but, even in that case, the twelve judges were not unanimous, two of them (one of whom was the present Lord Tenterden) having entertained very great doubts on the subject.  There, however, the majority of the judges decided on the principle that the chimney was a protection to the house; but in the present case, the evidence went to show, that what was designated a chimney, was merely a hole in the roof of the hut, large enough for two persons to go through together, with a few sods piled on the outside, and so low, that the extremity could be reached with the hand, when standing on the ground within the hut.  He, therefore, had very considerable doubts whether as entry through such an exposed place as that could be considered, in contemplation of law, such a ``breaking and entering," as would sustain a charge of burglary.  For these reasons, he should put the case tot he jury upon the facts, and would reserve the point, respecting how far a burglary could be sustained under such circumstances, for the consideration of the other judges, should it become necessary.

The jury found the prisoner guilty.

Forbes C.J., Stephen and Dowling JJ, 5 February 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 49] [Where a house was entered in the night time by descending a chimney large enough to admit two grown persons and a man standing upright in the house might reach the roof with his hands by putting it up the chimney.  Held that this was no breaking to constitute burglary.]

Saturday 5th February 1831

Coram  Forbes CJ

Stephen J

Dowling J

Rex v Hinton

The prisoner had been tried and convicted before Stephen J of a burglary under the following circumstances:  The prisoner had entered the dwelling house by descending a chimney large enough to admit two persons.  A person standing up right in the house might reach the top of the roof with his hands.  The prisoner had descended the chimney and ascended it again.

The Court thought this no burglary.

Published by the Division of Law, Macquarie University