that the prisoner broke and entered the dwelling-house, and the goods of ......... in the said dwelling-house then and there being found, then and there (omitting "in the said dwelling-house ") feloniously did steal, take and carry away.-R. v. Andrews, C. & M. 121, overruling R. v. Smith, 2 M. & Rob, 115, which Coleridge, J., said Patteson, J., was himself since satisfied had been wrongly decided.-2 Russ. 76, note by Greaves. Indictment...... ......... the dwelling-house of J. N., situate ......... feloniously did break and enter, with intent the goods and chattels of the said J. N., in the said dwelling-house then being, feloniously to steal, take and carry away, and one dressing-case of the value of twenty-five dollars, of the goods and chattels of the said J. N., then in the said dwelling-house, then feloniously did steal, take and carry away, against the form ......... —Archbold, 398. Upon the trial of an indictment for an offence under this section, the jury may, under sect. 183 of the Procedure Act, convict the defendant of an attempt to commit the same, if the evidence warrants it. But they can only convict of the attempt to commit the identical offence charged in the indictment; the prisoner was indicted for breaking and entering a dwelling-house, and stealing therein certain goods specified in the indictment, the property of the prosecutor. It was proved at the trial that, at the time of the breaking, the goods specified were not in the house, but there were other goods there, the property of the prosecutor; the prisoner had not had time to steal anything, having been caught immediately after his entering the house. The jury acquitted the prisoner of the felony charged, but found him guilty of breaking and entering the dwelling-house of the prosecutor, and attempting to steal his goods therein. Held, that the con viction was wrong, and that an attempt must be to do that which, if successful, would amount to the felony charged.-R. v. McPherson, Dears. & B. 197. As said in Archbold, 399, the prisoner, under such circumstances, may be convicted of breaking and entering with intent to commit a felony, under sect. 42, post. But only if, as in the form above given, the intent is alleged, which was not the case in R. v. McPherson, ubi supra. Local description necessary in the indictment.-R. v. Bullock, 1 Moo. C. C. 324, note a. 42. Every one who breaks and enters any dwelling-house, church, chapel, meeting-house or other place of divine worship, or any building within the curtilage, or school-house, shop, warehouse or countinghouse, with intent to commit any felony therein, is guilty of felony, and liable to seven years' imprisonment.-32-33 V., c. 21, s. 56. 24-25 V., c. 96, s. 57, Imp. See sec. 193 of Procedure Act. ......... ......... on ... the dwelling-house of J. N., situate......... feloniously did break and enter, with intent to commit a felony therein, to wit, the goods and chattels of the said J. N., in the said dwelling-house there being, then feloniously to steal, take and carry away against the form of the statute is such case made and provided.-Archbold, 403. Where there is only an attempt, it is not always possible to say what goods the would-be thief meant to steal, and an indictment for an attempt to commit larceny need not specify the goods intended to be stolen.-R. v. Johnson, L. & C. 489. Upon an indictment under this section the prisoner may be convicted, under sec. 183 of the Procedure Act, of the misdemeanor of attempting to commit the felony charged.-R. v. Bain, L. & C. 129. Greaves says: "This clause is new, and contains a very important improvement in the law. Formerly the offence here provided was only a misdemeanor at common law. Now it often happened that such an offence was very inadequately punished as a misdemeanor, especially since the night was made to commence at nine in the evening; for at that time, in the winter, in rural districts, the poor were often in bed. Nor could anything be much more unreasonable than that the same acts done just after nine o'clock at night should be liable to penal servitude for life, but if done just before nine they should only be punishable as a misdemeanor. It is clear that if, on the trial of an indictment for burglary, with intent to commit a felony, it should appear that the breaking and entry were before nine o'clock, the prisoner might be convicted under this clause. But upon an indictment in the ordinary form for house-breaking, the prisoner could not be convicted under this clause, because it does not allege an intent to commit a felony (as in McPherson's case, ante, under last preceding section). It will be well, however, to alter the form of these indictments, and to allege a breaking and entry with intent to commit some felony, in the same manner as in an indictment for burglary with intent to commit felony, and then to allege the felony that is supposed to have been committed in the house. If this be done, then, if the evidence fail to prove the commission of that felony, but prove that the prisoner broke and entered with intent to commit it, he may be convicted under this clause." The form of indictment given under the last preceding section is in conformity with these remarks. Under any indictment under this section, it is no defence that the prosecution has proved a burglary.-Sect. 194 Procedure Act. Local description necessary in the indictment.-R. v. Bullock, 1 Moo. C. C. 324. Note a. 43. Every one who is found by night armed with any dangerous or offensive weapon or instrument whatsoever, with intent to break or enter into any dwelling-house or other building whatsoever, and to commit any felony therein, or is found by night having in his possession, without lawful excuse,-the proof of which excuse shall lie on him-any picklock key, crow, jack, bit or other implement of house-breaking, or any match or combustible or explosive substance, or is found by night having his face blackened or otherwise disguised, with intent to commit any felony, or is found by night in any dwellinghouse or other building whatsoever, with intent to commit any felony therein, is guilty of a misdemeanor, and liable to three years' imprisonment.-32-33 V., c. 21, s. 59. 24-25 V., c. 96, s. 59, Imp. 44. Every one who, having been convicted of any such misdemeanor as in the next preceding section mentioned, or of any felony, commits any such misdemeanor, is liable to ten years' imprisonment. -32-33 V., c. 21, s. 60. 24-25 V., c. 96, s. 59, Imp. The distinction between this clause and sect. 39, as far as relates to being in a dwelling-house with intent to commit a felony, is this, that under the previous section the entry must be proved to have been in the night, but under this clause, proof that the prisoner was in the dwelling-house by night with the intent to commit felony is enough, and it is unnecessary to prove whether he entered by day or by night. Indictment for being found by night armed, with intent, etc.-The Jurors for Our Lady the Queen upon their oath present, that J. S., on ........... about the hour of eleven in the night of the same day, at......... was found unlawfully armed with a certain dangerous and offensive instrument, that is to say, a crow-bar, with intent then to break and enter into a certain dwelling-house of A. B., there situate, and the goods and chattels in the said dwelling-house then being, feloniously to steal take and carry away, against the form of the statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity.-Archbold, 501. It is not necessary to aver that the goods and chattels were the property of any particular person.-R. v. Lawes, 1 C. & K. 62; R. v. Nicholas, 1 Cox, 218; R. v. Clarke, 1 C. & K. 421. See, ante, sect. 2, as to the interpretation of the word "night." In R. v. Jarrald, L. & C. 301, it was held, upon a case reserved, that an indictment under this section, for being found by night armed with a dangerous and offensive weapon and instrument, with intent to break and enter into a building, and commit a felony therein, must specify, as in burglary, the building to be broken into. Crompton, J., was of opinion that the particular felony intended must also be specified. On this case, Greaves, 2 Russ. 70, note g., says: "With all deference it is submitted that this decision is clearly erroneous. The ground on which Cockburn, C. J., rests the decision of the first point (as to a particular house to be specified) is answered by the second clause of the same section; for, under it, the mere possession, without lawful excuse, of any instrument of house-breaking in the night, constitutes the offence without any intent to commit any felony at all; (see post, as to this part of the clause) and this offence is plainly one step further from the attempt to commit a felony than where the intent to commit some felony exists, though the particular felony is not yet, fixed........ As to the rules of criminal pleading, these seem, in this case, to have been misconceived. It is quite a mistake to suppose that these rules require the specification of particulars where it is impracticable to specify |