them. Wherever this is the case the rules allow general or other statements instead......... It cannot be doubted that this decision, instead of promoting the object of the Act in this respect, is substantially a repeal of it, for it is hardly conceivable that, in the majority of cases, it will be possible to prove an intent to commit any particular felony.........

To this, Cave answers, (3 Burn, 252, note a): "......... But a close consideration of the statute appears to confirm it (the decision in Jarrald's Case): it may well be that in all the other cases except "having implements of house-breaking" an intent must be clearly proved; for the "being armed with a dangerous weapon" or "having the face blacked" or "being by night in a dwelling-house are clearly no offences unless done for a felonious purpose, and the very essence of the offence is such felonious purpose But, with regard to "having instruments of house-breaking," the statute implies the intent from the nature of the instrument, and throws the proof of innocence upon the prisoner. The general intention of the statute is thus well carried out; for if a man be found by night anywhere with house-breaking implements, or such as the jury shall think he intended to use as such, he may be indicted for that offence.-R. v. Oldham, 2 Den. 472, post. But if he has not any house-breaking implements, but is "armed with. a dangerous weapon" not usable for house-breaking, or has "his face blacked" or is " in a dwelling-house" without instruments of house-breaking, then the particular intent must be laid and proved as laid."

Indictment for having in possession, by night, impleon..... about the

ments of house-breaking.

.........

hour of eleven in the night of the same day, at ...... was found, he the said (defendant) then and there, by night

Z

as aforesaid, unlawfully having in his possession, without lawful excuse, certain implements of house-breaking, that is to say, two crows, three jacks and one bit against the form.........Archbold, 502.

It seems that local description is necessary.-R. v. Jarrald, L. & C. 301.

Any instrument, capable of being used for lawful purposes is within the statute, if the jury find that such instrument may also be used for the purposes of housebreaking, and that the prisoner intended to use it as an implement of house-breaking, when found, at night, in possession of it.-R. v. Oldham, 2 Den. 472.

Where, on an indictment for having in possession without lawful excuse certain implements of house-breaking, the jury found the prisoners guilty of the possession without lawful excuse, but that there was no evidence of an intent to commit a felony, and the indictment omitted the words "with intent to commit a felony," it was held that the omission did not render the indictment bad, and that it was not necessary to prove an intent to commit a felony. R. v. Bailey, Dears. 244.

Indictment for being found by night with a disguised face with intent to commit felony........ Somersetshire (to wit.)-The Jurors for Our Lady the Queen upon their oath present that on the first day of May, in the year of our Lord 1852, about the hour of eleven in the night of the same day, at the parish of Swindon, in the county of Somerset, A. B. was found by night as aforesaid then and there having his face blackened (blackened or otherwise disguised), with intent then and there by night as aforesaid feloniously, wilfully, and of his malice aforethought, to kill and murder one C. D. (to commit any felony).

Indictment for being found by night in a house with

intent to commit a felony therein......... Yorkshire (to wit.) The Jurors for Our Lady the Queen upon their oath present, that on the first day of May, in the year of our Lord 1852, about the hour of eleven in the night of the the same day, at the parish of Filey, in the county of York, A. B. was found by night as aforesaid in the dwelling-house (dwelling-house or other building whatsoever) of one C. D., there situate, with intent then and there by night as aforesaid in the said dwelling-house feloniously to steal, take, and carry away the goods and chattels of the said C. D. then and there being in the said dwelling-house (to commit any felony therein.)

In R. v. Thompson, 11 Cox, 362, held, that where several persons are found out together by night, for the common purpose of house-breaking, and one only is in possession of house-breaking implements, all may be found guilty of the misdemeanor created by this section, for the possession of one is in such case the possession of all.

STEALING IN THE HOUSE.

45. Every one who steals in any dwelling-house any chattel, money or valuable security, to the value in the whole of twenty-five dollars or more, is guilty of felony, and liable to fourteen years' imprisonment.-32-33 V., c. 21, s. 61. 24-25 V., c. 96, s. 60, Imp.

As to the meaning of the words “valuable security." See, ante, sect. 2.

Local description necessary in the indictment.-R. v. Napper, 1 Moo. C. C. 44.

Indictment

one silver sugar basin, of the value of twenty-five dollars, of the goods and chattels of A. B., in the dwelling-house of the said A. B., situate ......... feloniously did steal, take and carry away, against the form ................ —Archbold, 401.

If no larceny is proved the defendant must of course be

acquitted altogether, except if the jury should find him guilty of the attempt to commit the offence charged, under sec. 183 of the Procedure Act, but the jury could not find him guilty of an attempt to commit simple larceny.—R. v. McPherson, Dears, & B. 197. See supra, under sect. 41.

The word "dwelling-house" has the same meaning as in burglary and sec. 36, ante. If the proof fails to prove the larceny to have been committed in a dwelling-house or in the dwelling-house described, or that the value of the things stolen at any one time amounts to twenty-five dollars, the defendant must be acquitted of the compound offence, and may be found guilty of the simple larceny only.-Archbold, 402.

The goods must be stolen to the amount of twenty-five dollars or more at one and the same time.-R. v. Petrie, 1 Leach, 294; R. v. Hamilton, 1 Leach, 348; 2 Russ. 85.

It had been held in several cases that, if a man steal the goods of another in his own house, R. v. Thompson, R. v. Gould, 1 Leach, 338, it is not within the statute, but these cases appear to be overruled by R. v. Bowden, 2 Moo. C.C. 285. Bowden was charged with having stolen Seagall's goods, in his, Bowden's, house, and having been found guilty, the conviction was affirmed. Where a lodger invited an acquaintance to sleep at his lodgings, without the knowledge of his landlord, and, during the night, stole his watch from his bed's head, it was doubted at the trial whether the lodger was not to be considered as the owner of the house with respect to the prosecutor; but the judges held that the defendant was properly convicted of stealing in the dwelling-house of the landlord; the goods were under the protection of the dwellinghouse.-R. v. Taylor, R. & R. 418. If the goods be under the protection of the person of the prosecutor, at

the time they were stolen, the case will not be within the statute; as, for instance, where the defendant procured money to be delivered to him for a particular purpose and then ran away with it.-R. v. Campbell, 2 Leach, 564, and so, where the prosecutor, by the trick of ring-dropping, was induced to lay down his money upon the table, and the defendant took it up and carried it away.-R. v. Owen, 2 Leach, 572. For a case to be within the statute, the goods must be under the protection of the house. But property left at a house for a person supposed to reside there, will be under the protection of the house, within the statute. Two boxes belonging to A., who resided at 38 Rupert street, were delivered by a porter, whether by mistake or design did not appear, at No. 33 in the same street; the owner of the house imagining that they were for the defendant who lodged there, delivered them to him; the defendant converted the contents of the boxes to his own use, and absconded; it was doubted at the trial whether the goods were sufficiently within the protection of the dwellinghouse to bring the case within the statute, but the judges held that they were.-R. v. Carroll, 1 Moo. C.C. 89. If one on going to bed put his clothes and money by the bedside, these are under the protection of the dwelling-house and not of the person; and the question whether goods are under the protection of the dwelling-house, or in the personal care of the owner, is a question for the court, and not for the jury.-R. v. Thomas, Carr. Supp. 295. So where a man went to bed with a prostitute, having put his watch in his hat on a table, and the woman stole the watch while he was asleep; this was held to be a stealing in a dwelling-house, and not a stealing from the person.-R. v. Hamilton, 8 C. & P. 49. But if money