The Queen v Thomas Burke

Judgment Date20 December 1851
Date20 December 1851
CourtCourt of Criminal Appeal

Cr. Appeal.


Rex v. GriceENR 7 C. & P. 803.

Rex v. FryENR 2 M. & Rob. 42.

Rex v. Johnson R. & Ry. 492.

210 COMMON LAW REPORTS. M. T. 1851. Cr. Appeal. Court of Criminal Spptai.* THE QUEEN v. THOMAS BURKE. Dec. 20. A prisoner was indicted under 14 & 15 Vic. c. 19, s.1, for being found at night armed with a danÂÂgerous and offensive inÂÂstrument, to wit a stone, with intent to break and enter a dwellÂÂing-house, and commit a feÂÂlony therein. The evidence was that when the prisoner was arrested he was beating the door of the dwelling house with a large stone ; and the jury were direc:,_1 to convict t':3 prisoner if they believed he • had the stone in his possesÂÂsion with the intent of effecting a feÂÂlonious entry into the house, and the priÂÂsoner was conÂÂvicted. Held, that the Judge was not justiÂÂfied in assum THIS was a case reserved from the Quarter Sessions of the Queen's County, held before James Gibson, Assistant-Barrister, on the 20th of October 1851. The case stated that the prisoner was indicted for that he, on the 8th of September (15 Vic.), about the hour of eleven o'clock on the night of the same day, at &c., was then and there found armed with a certain dangerous and offensive instrument, to wit a stone, with intent then and there the dwelling-house of Henry Valiance, there situated, to break and enter, and to commit felony therein-that is to say, feloniously to steal, take and carry away the goods and chattels of the said Henry Valiance out of the said dwelling-house, contrary to the form of the statute, &c. On behalf of the prosecution it was proved by a police-constable, that on the night in question he saw the prisoner stooping down upon his knees at the door of the prosecutor's house. The prisoner had a stone in his hands, with which he was striking the bottom of the door, and was working with the stone (a piece of flag about 7lbs. weight) when he was taken into custody, and some matches were found on his person. There were no traces of any injury 04r violence having been done to the door. The prisoner was making a good deal of noise at the door, so much so that the witness was surprised the inmates were not disturbed by it. The house had been attempted to be broken into some time previously. ing that the stone was an offensive weapon within the meaning of the statute, hut should have left that question to the jury. Held also, that evidence should have beengiven of a felonious intent...

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