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SILVA v. CHARLES.P. C., Colombo, 42,677.
Ceylon Penal Code, s. 449—Possession of implement with intent to breakinto building-jGeneral intent to break into buildings.
To support a conviction under section 449 of the Ceylon PenalCode, which makes it an offence for a person to have in.his custody• or possession any implement with intent unlawfully to break intoany building, it is necessary that the person should be proved tohave had the intent of breaking into some particular building,and proof of a general intent to break into buildings is insufficient.
T N this case the accused had been convicted by the Police Magis–*■ trate of Colombo with being in possession of an implementwith intent unlawfully to break into any building. There was noevidence that the accused intended to break into any particularbuilding. The case was sent for in revision.
Templet, Acting S–G., for the Crown.
Car. adv. vult. –
24th July, 1896. Laweie, J.—
On the suggestion of the Chit! Justice, who is now presiding inthe Colombo Criminal Sessions, where he had before him an associateof this prisoner, we sent for the record, and having examinedit and having heard the Solicitor-General, we set aside the convictionpassed on Vitanege Baron on the 11th June, 1896, by the PoliceMagistrate of Colombo, and we order the prisoner to be released.
The charge and the conviction were, that the accused on theday and at the place specified had in his possession a house-breaking jemmy with intent to break into buildings.
We did not read the evidence on which the Magistrate held thepossession and the intent proved.
We took for granted that the proof was of the facts alleged inthe charge, proof of these, of nothing more, and of nothing less.
We therefore take it for granted that there was no evidencethat the accused intended to break into any building known tothe prosecutor, that the proof was that the accused intended tobreak into buildings the names and position of which were notknown. The general rule of criminal law is that a mere intentionunaccompanied by au overt act is not punishable for these reasons,that as yet no harm has been done, and that there is a locus peni-tentise, a chance or hope that the evil intent will be abandoned.
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In some cases, however, of which section 449 is an example, ifthe intent be accompanied by the possession of an instrumentwhich can be used to carry out the intent, the intent plus thepossession is punishable.
Neither the possession by itself nor the intent by itself is ahoffence ; when both are proved, the possessor with intent is guilty.But it must be possession with intent to do a particular .unlawfulact.
Take the present case. Until a particular building was selectedto be broken into, can it be said that the accused intended tocommit house-breaking ?
I think it is the reasonable construction of the 449th section thatthere must be proof of intent to do a particular illegal act beforethe intent becomes an offence. But is it not sufficient to provethe kind of crime the accused intended to commit ? Is it necessaryor possible to prove the exact spot or the very building at or inwhich the crime is to be committed ?
It is an offence to commit house-trespass with intent to steal;it is not necessary to prove an intent to steal a particular article.
The possession of false weights and measures with intent to usethem fraudulently is an offence, although there be no intentionto defraud any particular man; the shopkeeper will be guiltywho, having a false weight, intend^ to use it whenever a stupidor unobservant customer comes in to buy. The possession of agun or snares with intent to kill game without a license is anoffence, although it is quite impossible to allege or prove whatparticular bird or animal the offender expected or intended to kill.
So it may be argued that a man with a jemmy intending tobreak into the first house which looks well furnished and illprotected is guilty of the offence punishable under section 449.
He certainly is guilty so soon as by leaving the highway andby approaching the house he manifests his intent to get into thathouse by the help of the instrument he is carrying, but is he guiltyso long as with vacant mind be walks along the road ?
I think that the question is not free from doubt. I do notregret having given to the accused the benefit of the doubt.
I quite agree with my brother in thinking that’ the judgmentbrought up in revision should be quashed and the- man releasedfrom any further imprisonment. The 449th section of the PenalCode, which enacts that whoever has in his custody or pos-session any implement with intent unlawfully to break into anybuilding, is so like the section 58 of 24 and 25 Viet. c. 96, that
La wane, J.
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I think are bound to follow the judgment in the Crown casereserved of Queen v. Jarrald and another (32 L. JM.C. 258).
• The headnote, which is supported by the judgment of the Judgeswho took part in that case, is as follows :—“ To support a conviction“ under the statute 24 and 25 Viet. c. 96, section 58, which renders“ it a misdemeanour for a person to be found at night armed with“ intent to break or enter into any house or building and to commit“ any felony therein, it is necessary that the person should be“ proved to have the intent of breaking into or entering some“ particular building, and proof of a general intent to break into“ houses will be insufficient. The indictment must, as in“ burglary, allege the ownership and situation of the premises“ intended to be broken into.”
The charge and conviction in the case before us does not specifywhose and what building the prisoner intended to break into.
SILVA v. CHARLES