A Treatise on Criminal Law as Applicable to the Dominion of Canada

ally; also that it was unnecessary to shew on the face of the conviction that complainant prayed the Magistrates to proceed summarily, for s. 1 of the Con. Stats. Can., c 103, applied to the case, and s. 50 authorized a form of conviction which had been followed precisely, and if there was no such request, and therefore no jurisdiction, it should have been shewn by affidavit. (a) It was also held in this case that it was clearly no objection that the assault was not alleged to be unlawful. (b) But it has been held in Quebec that a conviction for assault will be quashed, if there is nothing to shew that the assault was made unlawfully. (c)

(c) Ex parte Holden, 6 L. C. R. 481. See Reg. v. M'Donald, 4 Allen 440, as to conviction for assaulting a constable in the execution of his duty.

CHAPTER V

OFFENCES AGAINST PROPERTY.

Burglary.-Burglary has been defined to be, a breaking and entering the mansion house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. (a)

Both a breaking and entering are necessary to complete the offence, and every entrance into the house, in the nature of a mere trespass, is not sufficient. Thus if a man enter into a house by a door or window which he finds open, or through a hole which was made there before, and steal goods, or draw goods out of the house through such door, window, or hole, he will not be guilty of burglary. (b) There must either be an actual breaking of some part of the house, in effecting which more or less actual force is employed, or a breaking by construction of law, where an entrance is obtained by threats, fraud, or conspiracy. (c)

An actual breaking of the house may be by making a hole in the wall; by forcing open the door; by putting back, picking or opening the lock with a false key; by breaking the window; by taking a pane of glass out of the window, either by taking out the nails or other fastening, or by drawing or bending them back, or by put

ting back the leaf of a window with an instrument, and even the drawing or lifting of a latch. (a)

Where the door is not otherwise fastened, the turning of the key where the door is locked on the inside, or the unloosing any other fastening which the owner has provided will amount to a breaking. (b)

If a man enters by a door or window which he finds open, or through a hole which was made there before, it is not burglary. (c)

Where an entry was effected by taking out the glass from a door it was holden to be burglary, (d) and where the defendant pulled down the sash of a window which had no fastening, and was only kept in its place by the pulley-weight, it was holden to be burglary, although there was an outer shutter which was not put to. (e) So where he raised a sash window which was shut down close but not fastened, though it had a hasp which might have been fastened. (f) And where a window opening upon hinges and fastened with wedges, but so that, by pushing against it, it could be opened, was opened, it was holden to be burglary. (g) So where a party thrust his arm through the broken pane of a window, and in doing so broke some more of the pane, and thus got at and removed the fastening of the window and opened it, it was holden to be a sufficient breaking. (h) Lifting up the flap of a cellar usually kept down by its own weight is a sufficient breaking for the purpose of burglary. (i) If a window be partly open, but not sufficiently to admit a

(a) 2 Russ. Cr. 2-3; Rex. v. Owen, 1 Lewin, 35 per Bayley, J.; Rex v. Lawrence, 4 C. & P. 231; Rex v. Jordan, 7 C. & P. 432.

(b) 2 Russ. Cr. 3.

(e) R. v. Haines, R. & R. 451.

(f) R. v. Hyams, 7 C. & P. 441.

(g) R. v. Hall, R. & R. 355.

(h) R. v. Robinson, 1 Mood. C. C. 377.

R. v. Russell, 1 Mood C. C. 377.

person, the raising of it so as to admit a person is not a breaking of the house. (a)

It is burglary if a man obtain entrance to a house by means of the chimney, for though open it is as much closed as the nature of the structure will admit. (b) But an entry through a hole in the roof is not burglary, for a chimney is a necessary opening and requires protection, whereas if a man choose to have a hole in the wall or roof of his house, instead of a fastened window, he must take the consequences. (c)

As to a breaking by fraud, where an act is done in fraudem legis the law gives no benefit to the party, so that if thieves obtain entrance, under pretence of business, as to arrest a suspected person or the like, if the other ingredients are also in the offence, it will amount to burglary. (d)

It is also burglary if the entrance is obtained by conspiracy, as if A., the servant of B., conspire with C. to let him in to rob B., and accordingly A. in the night time opens the door and lets him in, it is burglary in both. (e)

But if a servant, pretending to agree with a robber, open the door and let him in for the purpose of detecting and apprehending him, this is no burglary for the door is lawfully open. (ƒ)

There may also be a breaking in law where, in consequence of violence commenced or threatened, the owner, either from apprehension of the violence, or with a view to repel it, opens the door through which the thief enters. (g) With respect to the entry, any, even the least entry, either with the whole or any part of the body,

(a) R. v. Smith, 1 Mood. C. C. 178; Arch. Cr. Pldg. 497.

(b) 2 Russ. Cr. 4; Rex v. Brice, R. & R. 450.

(d) 2 Russ. Cr. 9.

(e) Ib. 10.

(f Reg. v. Johnson, C. &. Mar. 218.

2 Russ Cr. 8.

hand or foot, or with any instrument or weapon introduced for the purpose of committing a felony, will be sufficient. (a)

The 32 & 33 Vic., c. 21, s. 53, renders it a felony to enter any dwelling-house in the night, with intent to commit any felony therein, and thus dispenses with proof of a breaking under this clause. S. 50 provides that whosoever enters the dwelling-house of another, with intent to commit any felony therein, or being in such dwelling-house commits any felony therein, and, in either case, breaks out of the said dwelling-house in the night, is guilty of burglary.

Every house for the dwelling and habitation of man is taken to be a dwelling-house in which burglary may be committed; (b) and this dwelling-house formerly included the out-houses, such as ware-houses, barns, stables, cowhouses, or dairy-houses, though not under the same roof or joining contiguous to the dwelling-house, provided they were parcel thereof. But now the 32 & 33 Vic., c. 21, s. 52, enacts that such houses shall not be considered part of the dwelling-house for the purpose of burglary, unless there be a communication between such building and dwelling-house, either immediate or by means of a covered and enclosed passage leading from one to the other. (c)

Unless the owner has taken possession of the house, by inhabiting it personally or by some one of his family, it will not have become his dwelling-house as applied to the offence of burglary. (d) But the occasional or temporary absence of the owner will not prevent it from being his dwelling-house. (e) How

(a) 2 Russ. Cr. 11.; See R. v. Davis, R. & R. 499; R. v. Bailey, R. & R. 341. (b) 2 Russ. Cr. 15.

(d) 2 Russ. Cr. 21.

(e) 2 Russ. Cr. 23.

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