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

R v Lang [1831] NSWSupC 30

burglary, dwelling house

Supreme Court of New South Wales

Forbes C.J., 17 May 1831

Source: Sydney Gazette, 19 May 1831

John Lang stood indicted for a burglary, with intent to steal, in the dwelling-house of Joseph Farris, at Sydney, on the 25th of December last.

Joseph Farris - I reside at Darling Harbour; between eleven and twelve o'clock at night, on the 25th of December last, I was sitting up with my wife and a friend, when I heard a noise which I thought proceeded from a new building adjoining my dwelling-house; I went out at the back door, and requested my friend to go out at the front; immediately after, I heard an alarm at the front, and on going round, I saw the prisoner in the act of getting in at the bed-room window; the sill of the window is about three feet from the ground; when I saw the prisoner, his body was in at the window, and his feet outside; I know that the shutter of the window had been closed, with an iron bar across, but I believe the pin had not been put in one the inside; the lower sash of the window was raised; I had seen it down about a quarter of an hour before; the prisoner, when he was apprehended, had the bolt of one of the windows in his hand.

Croxx-examined by Mr. Rowe - The window was closed in the usual way, only that the key which confined the bolt in the inside had not been put in; it would not have required much strength to pull the bolt out, or to open the shutter; a moderate degree of strength would have been sufficient to open it; I will not swear that the pin which fastened the bolt was not in, but I do not think it was; I will not swear that it was in; I think it was not; I never lost sight of the prisoner till he was given into the custody of a constable.

This was the case for the prosecution.

Mr. Rowe submitted that, in point of law, the information could not be sustained.  Supposing the testimony of the prosecutor to be true, he contended that no burglary had been proved, inasmuch as the evidence went to show, that, on the night in question, the window where the alleged entry had been made, had not its usual fastening.  In the case of the King against Callam [2 Russel, 903, and 1 Starkie 303], tried before Lord Ellenborough in 1809, where the prisoner was indicted for a burglary in breaking out of a house, it was held that the raising of a trap-door, with an iron bar on the outside, but which had been neglected to be secured within, by the usual pin through the bolt, did not amount to burglary, although the evidence went to prove that it required very considerable strength to raise it, on account of its weight.  The case before the Court, the learned counsel contended, was a much stronger case than the one he had cited; because it appeared upon the testimony of the prosecutor, that not only was the shutter without its usual fastening, but that a moderate degree of strength was sufficient to open it from the outside.  Upon the authority ofCallam's case, therefore, he contended that the present information could not be supported.

The Chief Justice was clearly against the position assumed by Mr. Rowe.  The case of Callam he considered to be nothing more than the ordinary case of opening a door, which, if left without any fastening, would not constitute the crime of burglary.  But the removal of any fastening, however slight, was sufficient to sustain the charge.  The case cited by the counsel for the prisoner, was nothing more than the case of a cellar door, the only security to which was its own weight, which had been very properly rejected by the Judges altogether, and considered as a door, de factoopen.  The case before the Court was widely different from that.  The prosecutor would not swear that the key was not in the bolt, although he believed it was not; but, besides, it was in evidence that the shutters were closed on the outside, with an iron bar across, and the bolt in, and that the glass window had been raised.  His Honor was of opinion that the mere raising of the window would be sufficient to support the charge; - that the case of Callum was not at all in point; and that the facts proved amounted to a burglary, if they were believed by the Jury, and unexplained by other circumstances.

For the defence, Mr. Rowe re-called Joseph Farris - The door between the bed-room, and the room in which I was sitting when I heard the noise, was open; I suspect that the prisoner had previously been at the window of the room where I was, and must have seen me and the other persons; he said, when he was apprehended, that he came in search of his wife; my wife was in the room with me, and he could have heard her voice outside, and distinguished it to be the voice of a woman; I do not think it would have been impossible for him to have got in without some of my family seeing him.

John Proctor, a constable, said, I took the prisoner into custody, on the night of the 25th of December last; he said he was in search of his wife; to my knowledge she is in the habit of leaving his house, and the prisoner of searching for her in differing places; I have brought her home at night frequently, in a state of intoxication; we met the prisoner's wife in the street; when I and Small, the wardsman, were taking him to the watch-house.

No other witnesses were called for the defence.

The learned Judge summed up the evidence, and the jury found the prisoner guilty.  Remanded.

Published by the Division of Law, Macquarie University