HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0528 and id is 1 raw text is: 2 LEACH 569. THE KING V. GEORGE HINDMARSH 387
by the statute 3 & 4 Will. and Mary, c. 9, s. 1, All and every per-[569]-son or
persons that shall comfort, aid, abet, assist, counsel, hire, or command any person
or persons to break any dwelling-house, shop or warehouse thereunto belonging, or
therewith used, in the day-time, and feloniously take away any money, goods or
chattels of the value of five shillings or upwards therein being, although no person shall
be within such dwelling-house, shop, or warehouse, shall not have the benefit of
clergy. (a)
. The Jury found all the prisoners guilty to the value of four shillings and sixpence,
and they were sentenced to be transported for seven years.
CASE CCLV.
THE KING V. GEORGE HINDMARSH.
(On the trial of an indictment for murder, the death of the person charged to have
been killed, may be collected from the circumstances, if incapable of being proved
by other evidence.)
At the Admiralty Session held at the Old Bailey on the 7th June 1792, George
Hindmarsh was tried before Mr. Justice Ashhurst, present Mr. Baron Hotham, Sir
James Marriott, &c. for murder.
The indictment consisted of two counts.-The First Count stated, that George
Hindmarsh, late of London, mariner, not having the fear of God before his eyes, &c.
on the 28th October 1791, with force and arms, upon the high sea, within the juris-
diction of the Admiralty of England, to wit, about the distance of one league from
Annamaboe, on the Coast of Africa, in and upon one Samuel Burne Cowie, then and
there being, &c. &c. on board of a certain sloop called the Eolus, feloniously,
wilfully, and of his malice aforethought, did make an assault, and that the said George
Hindmarsh then and there, &c. with a certain large piece of wood of the value of one
penny, which he the said George Hindmarsh then and there had and held, him the
said Samuel Burne Cowie, in and upon the head, &c. feloniously, wilfully, [570]
and of his malice aforethought did strike and beat, giving him, &c. by such striking
and beating, &c. divers mortal bruises and contusions in and upon the head, &c.
of which said mortal bruises and contusions he the said Samuel Burne Cowie did
instantly die ; and so the Jurors, &c. do say, that the said George Hindmarsh, him
the said Samuel Burne Cowie in manner and by the means aforesaid, then and there,
&c. feloniously, wilfully, and of malice aforethought, did kill and murder, against
the peace, &c.-The Second Count charged, That the said George Hindmarsh, &c.
in and upon the said Samuel Burne Cowie, feloniously, wilfully, and of his malice
aforethought, did make another assault, and that the said George llindmarsh then
and there, &c. feloniously, wilfully, and of his malice aforethought, did cast and throw
statute at the Lent Assizes for Cambridge, 16 Car. II. and it appeared, that he had
taken plate out of a trunk in which it was contained, and laid it on the floor ; but
before he carried it away he was surprised and apprehended ; and it was agreed by
all the Judges, that this amounted to a stealing in the house within the meaning of
the statute, for the felony is at common law ; and by the common law, breaking the
house and taking of goods and removing them from one place to another in the same
house with an intent to steal them, is felony ; for by thus taking them he hath the
possession of them, and that is stealing and felony. Kely. Rep. 31; Foster, 109.-In
Smith's case also, Old Bailey October Session 1698, three persons were tried on this
statute for breaking and entering the house of Miles Singleton in the day-time, no
person being therein, and it appeared that a servant, in confederacy with the prisoners,
let them into the house; in which they broke open several inner doors, and carried
off goods to a great value, and it was objected that the servant being in the house,
took the case out of the statute ; but on reference to the Judges it was held to be well
laid, for the house was equally defenceless with so treacherous a servant in it as if no
person had been in fact therein, MS. And this case is referred to by Mr. East (2 vol.
638), to shew that such a breaking in the day-time as would constitute burglary if
done in the night is sufficient.
(a) Quaire whether a person present at a robbery and assisting in it, but who does
not enter the house, may be indicted as a principal, under either 39 Eliz. c. 15, or'3 & 4
Will. and Mary, c. 9, or whether he must be indicted as an aider and abettor under the
latter Act. 2 East, P. C. 639.](ViewImageLocal?handle=hein.slavery/ssactsengr0528&div=1&collection=&method=preview&ext=.png&size=3)