41. JOHN ROBERTS proceedingsdefend was indicted for feloniously and burglariously breaking and entering the dwelling house of Robert Salter proceedingsvictim , on the 29th of November last, about the hour of eight in the night, and feloniously stealing therein six silk handkerchiefs, value 18 s. the property of the said Robert Salter < no role > .

ELIZABETH SALTER < no role > sworn.

I live in King-street, Tower-hill , on the 29th of November last, between seven and eight my shop window was broke, and these handkerchiefs taken out, I did not see the prisoner, it made a very great noise, I was behind the counter, the handkerchiefs were lying in the window.

Court. Did you see any hand put in? - I did not, I was very much frightened, I had a boy behind the counter, I told him to run out and cry stop thief, for the window was broke, the prisoner at the bar was stopped and brought back with the handkerchiefs; this was in the space of three minutes.

Court. Are these the same handkerchiefs? - I am positive they are the same handkerchiefs, I have had them ever since, William Walker < no role > brought back the prisoner and the handkerchiefs, I laid them in the window in the morning myself, and I saw them in the course of the day several times.

Prisoner's Council, Mr. Keys. There is no shop mark on them? - No.

Then they are only such sort of handkerchiefs as you lost? - They are such sort as I am positive they are my handkerchiefs.

It is a very common pattern? - No, it is not.

There are dozens and dozens of them in London? - I cannot tell how many may be made of them, I never had any of this pattern before.

How far is your house from the corner of the street? - Four houses.

It was a pretty dark night was not it? - I believe it was.

It was on a Saturday night? - Yes.

And a great number of people in the streets? - Sometimes there is.

WILLIAM WALKER < no role > sworn.

I live in Rosemary Lane, about five houses down after you come out of King-street, I was standing at the door, and there was a sudden alarm with the cry of stop thief! I looked out and saw the prisoner running, I suspected him to be the thief, I immediately crossed the way and caught him in my arms with the property upon him, these were the handkerchiefs I delivered to Mrs. Salter; when I caught him in my arms, he fell down and threw the handkerchiefs from him, and a man that stood by picked them up, I am sure he had the handkerchiefs upon him when I stopped him, because I saw them.

Prisoner's Council. Did you say before the Justice that you saw the handkerchiefs drop from him? - Yes, I say now what I said then, and no more.

Was Mr. Stewart by at the time? - He saw the window broke.

JOSEPH STEWART < no role > sworn.

On Saturday evening between seven and eight o'clock, I was going down King-street, I observed the prisoner standing in the middle of the street below Mr. Salter's shop, I thought him to be a servant to a friend of mine, and crossed to speak to him but found he was not the person I thought he was; I was only going a little way to the Post Office, and I came back immediately, when I turned round, I observed another person standing with him in the middle of the street, the man and himself were the only people I believe in the street, I then saw them go to the corner of Mr. Salter's window, and look into the window, and immediately the window was broke, the other person had a blue great coat on, the prisoner at the bar made a snatch at something, it was very light being opposite to the tobacconist's shop, and the light of Mr. Salter's shop, the prisoner turned down Rosemary Lane, I perceived several things fell down on the ground, I am not mistaken in the person.

Prisoner's Council. Do you consider that this young man's life depends on your evidence? - Yes, I well remember his dress.

What did you say before the Justice? - I said, I saw the prisoner in the street, when I went down the street.

Have not you said, Sir, that you thought it was the other boy that broke the window? - One of them certainly did it, for there was nobody else close to the window, I cannot say the prisoner broke it.

Was you present when the handkerchiefs were found? - No, I only went to the corner, and cried stop thief! One of them had gone down Rosemary Lane.

PRISONER's DEFENCE.

When that gentlemen was before the Justice he would only say that he saw the handkerchiefs in my hand as I was running, and if the gentleman was to speak God's now, he knows to the contrary.

Court to Jury. Gentlemen; doubts have at sometimes what should be considered as a sufficient breaking or entering to constitute the crime of burglary, and upon that several determinations have been made, and the Judges have from time to time decided what cases were in their opinion within, that law, and they have been very strict in their construction of this law, and have considered any of any thing that was that and fastened, to be a sufficient breaking, and any the entering, even the putting in a hand, to be a sufficient in this case to be sure the breaking and entering does not appear to be very strongly within the law of burglary, for the intention of that law was most certainly to protect people in the hours of rest from injury and depredation; to protect them in the secure enjoyments of their dwellings, was certainly the original and principal reason of the law with respect to burglary; and if therefore, such cases as this at the bar were now and undecided upon, I should have doubted very much whether they came within the reason of that law, but it is my duty to tell you, that this circumstance of breaking a shop window has been decided by the Judges to be a burglary, therefore, I am bound to state to you the law, if you believe the fact it is sufficient to support the indictment.

GUILTY, Of stealing to the value of 10 s. but not guilty of breaking and entering the dwelling house .

Transported for seven years .

Tried by the second Middlesex Jury before Mr. RECORDER.