1778. effects, to the value of about ten pounds into the house (a); but at the time the offence was supposed to have been comLYONS'S CASE. mitted, it was under the care of a carpenter, for the purpose of being repaired; and Mr. Smith had not himself entered into possession of any part of it, nor did any part of his family, or any person whatever sleep therein. The prisoners broke and entered this house in the night-time, with an intention to steal; but whether it can in construction of law be considered the dwelling-house of Edward Smith, they submitted, &c. THIS Case was made upon the objection of Mr. Howarth, the prisoner's Counsel; and a copy of it was delivered to (1) Ld. Mans- each of the JUDGES named in the margin (1). field, L. C. J. De Grey, THE JUDGES in Easter Term 1778, were of opinion, That L. C. B. Skin- a house so situated could not be considered as a dwellinghouse, it being completely uninhabited, and therefore there could be no burglary. ner, Mr. J. Blackstone, Mr. J. Ash hurst, THE judgment against the prisoners was accordingly arMr. J. Nares, rested (b). Mr. J. Gould, Mr. J. Willes, Mr. B. Perryn, Mr. B. Hotham, Mr. B. Eyre. (a) It appears by Mr. East's report of this case, that no goods were is the house at the time it was broken open; and that the Judges were therefore also of opinion that it was no burglary, because as the indictment only charged an intent to steal, it must mean to steal the goods then and there being, and nothing being in the house, nothing could be stolen: But it is further stated that "it also seemed to be the sense of the Judges, and Eyre B. declared it to be his opinion, that although some goods might have been put into the house, which is the case put in Kelynge 46 and there doubted; yet if neither the party nor any of his family had inhabited it, it would not be a mansion-house in which burglary could be committed." And this point appears to have been ruled accordingly by Buller J. in Hallard's Case, Exeter Spring Assizes 1792, 2 East, 498; by Grose J. in Thompson's Case at Kingston 1796, and adjudged by all the Judges in the Case of Davis, at the Old Bailey June Session 1800, post, Harris' Case, Old Bailey, October 1795, post, and Norreg Thomp son's Case, post, Surry Assize 1796. (b) In December Session 1782, William Fuller was indicted at the Old Bailey, before MR. RECORDER, for a burglary in the dwelling-house of Henry Holland.-The house was new built, and finished in every respect except the painting, glazing, and the flooring of one garret: a workman 1778. who was constantly employed by Mr. Holland, the builder, slept in it for the purpose of protecting it; but no part of Mr. Holland's domestic family had yet taken possession of the house; and THE COURT, upon the au- LYONS'S CASE. thority of Lyons's Case, held, that it was not the dwelling-house of the prosecutor. THE KING against THOMAS TICkner. CASE XCIV. hem on the 22 c. 1. the ma AT the Old Bailey in February Session 1778, Thomas Tick- On an indictner and Thomas Adams were tried before MR. JUSTICE ment of MayGOULD, present MR. JUSTICE ASHHURST, and MR. BARON & 23 Car. II. PERRYN, on the statute 22 and 23 Car. II. c. 1. commonly lice, and lying called the Coventry Act; Thomas Tickner, for making an as- in wait, must sault on William Jacob with a bill-hook, and slitting his nose, proved. be expressly with intention in so doing to maim and disfigure the said S. C. 1 East, William; and Thomas Adams, for being present, aiding and abetting in the said felony. 3 398. Wooburn's THE prosecutor was servant to a Mr. Cole of Twickenham, See Coke and within about a quarter of a mile of whose house the prisoner Case, 6 St. lived. About twelve o'clock at night, on the 16th January Tr. 212. 1778, the prosecutor discovered the prisoners in a field belonging to his master, where Tickner was pulling up turnips. The prosecutor went up to Tickner, and spoke to him; but instead of making any reply, Tickner immediately struck him on the nose with a sharp instrument fixed into a stick of wood, and hanging loose, something like a flail. The blow knocked him to the ground, and he received several blows after he was down, which rendered him senseless for some time. He was carried to St. George's Hospital, and upon examination a small superficial wound was found upon the right side of his nose; a very large wound upon his neck, immediately under the lower jaw; a cut upon his hand; a small incision See Cro. Cir. Ass. p. 219. on the right brow; and eight cut wounds on the top of his Lee's Case, head; the cut upon the nose had divided the exteguments of the nose in an oblique direction; but did not go through the bones of the nostril. There is very little covering to the bones of the nose, except the skin; and the cut went to the 3 ante, p. 51. 1778. bone, but did not penetrate into the nostril. It was a cut; not a scratch or a slit; it went through the skin, and reached TICKNER'S the bone; and it was sufficient to leave a mark visible for a CASE. long time. THE evidence did not sufficiently affect the prisoner Adams to put him upon his defence; but MR. JUSTICE GOULD (present MR. JUSTICE ASHHURST, and MR. BARON PERRYN) told the Jury that he thought it was not necessary that either the malice aforethought or the lying in wait should be expressly proved to be on purpose to maim or disfigure the person injured. (1) See 13 The prisoner was engaged in a criminal matter (1); prepared Geo.III.c. 32. by which with a weapon to defend himself against all opposers; and stealing tur- being thus ready to support himself in his unlawful design nips is made amisdemeanor. of stealing the turnips, he is answerable for the consequences which happened in the prosecution of his illegal act. As to the slitting of the nose, the learned Judge said, it had been adjudged in the case of Mr. Kirby, (2), that a separating of the flesh was sufficient to bring the offender within the meaning of the Act of Parliament, and that in the present case the cut had reached the bone. He therefore left it with them to consider whether from the time of night at which the offence was committed, and the sort of weapon with which the offender had armed himself, they were satisfied that it was his determination to maim or destroy any person who should obstruct him in the act of stealing the turnips. (2) This is Barney Carrol's Case, ante, p. 55. See 43 Geo. THE Jury found the prisoner guilty; but on his receiving judgment, MR. Serjeant Glynn, Recorder, ordered the execution of the sentence to be respited, until the opinion of THE TWELVE JUDGES could be procured, Whether this conviction was proper within the meaning of the statute? the words of which are, "That if any person shall on purpose, "and of malice aforethought and by lying in wait, unlaw"fully cut out or disable the tongue, put out an eye, slit "the nose, cut off a nose or lip, or cut off or disable any "limb or member, of any subject of his Majesty, with in"tention in so doing to maim or disfigure, in any the mat"ters above-mentioned, such his Majesty's subject; the per"son so offending, his counsellors, aiders, and abettors, "knowing of and privy to the offence as aforesaid, shall be "felons, and suffer death without the benefit of clergy." THE JUDGES were of opinion, that the conviction was wrong; for that this did not amount to a sufficient evidence of lying in wait (a). (a) See Thomas Mills's Case, post, April Session, 1783, and the case of Alexander Mackey, Kingston Spring Assizes 1778, 1 East's P. C. 399, where the commander of a press-gang, maiming a man whom he casually met, and who resisted being impressed (being in truth no mariner) but against whom he appeared to have an antecedent grudge, was held not a lying in wait within this statute. 1778. TICKNER'S CASE, THE KING against ROWLAND RIDGELAY. CASE XCV. THIS was a case upon the 8 and 9 Will. III. c. 26. drawn What shall be up and reserved by MR. BARON HOTHAM, at the Old Bailey puncheon considered a in December Session 1778, for the consideration of THE within the TWELVE JUDGES. meaning of c. 26. S. C. 1 East, 171. Case, Taun ton Assizes, THE indictment first counted, That the prisoner not being a person employed in or for the Mint, &c. knowingly, feloniously, and traitorously had in his custody and possession See Lennard's one PUNCHEON, made of iron and steel, in and upon which was made and impressed the figure, resemblance, and simi- 1772, ante, litude of the head side of a SHILLING, without any thority or sufficient excuse for that purpose, against the duty of his allegiance, &c. lawful au The third count was the same as the first, for having in his possession a puncheon, in and upon which was impressed the figure, resemblance, and similitude of the head side of a GUINEA. THE second and fourth counts respectively charged, that the said puncheon would impress and make the figure, resemblance, and similitude of the head side of a shilling and a guinea. THE words of the Act of Parliament, as far as they relate page 90, case 51. 1778. CASE. to this question, are, that whosoever "shall knowingly make "or mend, or begin, or proceed to make or mend, or assist RIDGELAY'S in the making or mending of any puncheon, counter“puncheon, matrix, stamp, die, pattern, or mould, of steel, ❝iron, silver, or other metal or metals, or of spaud, or of "fine founder's earth, or sand, or of any other materials "whatsoever, in or upon which there shall be, or be made "or impressed, or which will make or impress, the figure, "stamp, resemblance, or similitude of both or either of the "sides or flats of any gold or silver coin current within this kingdom, &c. or shall knowingly buy, sell, hide, or con"ceal, or without lawful authority or sufficient excuse for "that purpose, knowingly have in his, her, or their houses, "custody, or possession, any such puncheon, counter"puncheon, matrix, stamp, die, or other tool or instru"ment before-mentioned, every such offender or offenders, "their counsellors, procurers, aiders, and abettors, shall be guilty of high treason." 66 It was fully proved that the puncheons were found in the prisoner's lodgings, together with a quantity of bad money, and that he had them knowingly for the purposes of coining; and the Jury were inclined to find only a verdict that “the said puncheons were knowingly in his custody;" submitting to the Court whether the proof of such puncheon being so found satisfied the words of the Act; but a general verdict Guilty was taken; and as no case had been decided upon this branch of the Act, the officers of the Mint wished to have the opinion of the JUDGES upon the following evidence of the Engraver of the Mint, Whether this was or was not a puncheon within the meaning of the legislature? It appeared by the evidence of the Engraver of the Mint that the puncheons found in the prisoner's custody were complete, and hardened ready for use; but it was impossible to say, that the shillings which were found, were actually made with these puncheons, the impressions being too faint to be exactly compared; but that they had the appearance of having been made with them: that the manner of making these |