Sentenced to Death

One of our researchers, Brian Bouchard, stumbled across a local case where a burglar, James Westwood was sentenced to death (see below).  However due to a technicality the case was referred to a higher court who decided that the conviction was safe.  Although the Westwood was “capitally convicted” we have been unable to established if this was his fate or it was commuted to a less severe one.

What is of interest to us is the description of the layout of buildings where the theft took place.   We don’t have a detailed map of Epsom for the 1820s but from the 1842 Epsom Tithe Award we know that John Bailey owned several plots of land in Epsom. The following extract shows some of them:

Extract from the 1842 Tithe Award showing some of John Bailey’s properties

CROWN CASES RESERVED

1822.

REX v. JAMES WESTWOOD

The prisoner was indicted before Mr. Justice Park, at the summer assizes for the county of Surrey, in the year 1822, for a burglary in the dwelling-house of John Bailey at Epsom, and stealing various articles.

Of the existence of the usual circumstances to constitute a burglary, and also to constitute the grand larceny, there was no question, and the prisoner was capitally convicted.

But a doubt arose in the mind of the learned Judge (there being no counsel for the prisoner) whether the place in which the felony was committed could be considered as a parcel of the dwelling-house of Mr. Bailey, the prosecutor; and the learned Judge respited the judgment till the following assizes.

The house of the prosecutor was in the High Street, at Epsom. There were two or three houses there, insulated like Middle Row, Holborn. At the back of the house was a common passage or street, through which all the king’s subjects, by day or night, passed, being, in fact, the footway, and of the width of nine feet.  Across this passage, opposite to the dwelling-house, were several buildings and rooms used by Mr. Bailey for the purposes of his house; namely, one for a kitchen, another for a coach-house, adjoining to which were a larder and brewhouse. Over the brewhouse a servant boy always slept, but no others of Mr. Bailey’s family ever slept there; and this was the room, by breaking into which the offence was committed.

There was no communication between the dwelling-house and these buildings, nor any thing to connect them, except that there was a kind of canopy or awning reaching over the common passage or footway to prevent the rain from falling on the victuals in their conveyance from the kitchen to the dwelling-house, but not at all obstructing the highway.

The question submitted to the learned Judges was, whether, under these circumstances, the place in question could be considered as part of the dwelling-house of the prosecutor.

In Michaelmas term, 1822, a great majority of the Judges were of opinion that the room in question was not parcel of the dwelling-house in which Mr. Bailey dwelt; because it did not adjoin it, was not under the same roof, and had no common fence. Graham B. was of opinion that it was parcel of that house. But all the Judges, except Park J. (Richardson J. being absent) were of opinion that it was a distinct dwelling house of Mr. Bailey’s; and the indictment having described it as his, that the conviction was right.

Source: Crown Cases Reserved for Consideration And Decided by the Twelve Judges of England, from the Year 1799 to the Year 1824. By Sir William Oldnall Russell, Sir Edward Ryan 1825.