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.

(c) See Reg. v. Burrowes, 1 Mood. C. C. 274; Reg. v. Higgs, 2 C. & K. 322; Reg. v. Jenkins, R. & R. 224.

(d) 2 Russ. Cr. 21.

(e) 2 Russ. Cr. 23.

ever, in these cases there must be an intention, on the part of the owner, to return to his house, animus revertendi. (a)

As to the time of committing the offence, it is settled that in the daytime there can be no burglary. (b) If a house is entered in the daytime it is house-breaking and not burglary. By the 32 & 33 Vic., c. 21, s. 1, it is enacted that so far as regards the offence of burglary the night shall be considered to commence at 9 o'clock in the evening of each day, and end at six o'clock in the morning of the next succeeding day.

The breaking and entering need not be both in the same night, provided the breaking be with intent to enter, and the entry with intent to commit a felony. (c) But the breaking and entry must both be committed in the night time. If the breaking be in the day and the entering in the night, or the breaking in the night and the entering in the day, it is no burglary. (d)

As to the intent, the offence must be with intent to commit some felony within the house, whether such felonious intent be executed or not, (e) and when the breaking is a breaking out of the dwelling-house in the night there must have been a previous entry with intent to commit a felony, or an actual committing of a felony in such dwelling-house.

If the entry were only for the purpose of committing a trespass, the offence will not be burglary. But if a felony be committed, the act will be prima facie pregnant evidence of an intent to commit it. (f) And it is a general rule that a man who commits one sort of felony, in

(a) 2 Russ. Cr. 23; 4 Bla. Com. 225.

(b) 4 Bla. Com. 224.

(c) R. v. Smith, R. & R. 417. See R. v. Jordan, 7 C. & P. 432; Arch Cr. Pldg. 490.

(d) Ib.

(e) Ante p. 281.

(f) See R. v. Locost, Kel. 30.

attempting to commit another, cannot excuse himself on the ground that he did not intend the commission of that particular offence. (a) But it makes no difference whether the offence intended were felony at common law, or only created so by statute, on the ground that, when a statute makes an offence felony, it incidentally gives it all the properties of felony at common law. (b)

The offence of house-breaking is very nearly allied to that of burglary, the principal distinctions between them being that the latter is committed by night, the former by day; and by the express language of the statute, the breaking and entering, in case of the former, must be accompanied with some larceny, and an intent to commit a felony is not sufficient.

A man cannot be indicted for a burglary in his own house. Therefore, if the owner of a house break and enter the room of his lodger, and steal his goods, he can only be convicted of larceny. (c)

S. 56

The 32 & 33 Vic., c. 21, s. 54, makes it felony to break and enter any building, and commit any felony therein, such building being within the curtilage of a dwellinghouse, and occupied therewith, though such building is not part thereof, according to the law of burglary. It is also felony for any one, being in any such building, to commit any felony therein, and break out of the same. makes it felony to break and enter any dwelling-house, church, chapel, meeting-house, or other place of divine worship, or any building within the curtilage, schoolhouse, shop, warehouse, or counting-house, with intent to commit any felony therein; and s. 57 provides that whosoever is indicted for any burglary, where the breaking and entering are proved at the trial to have been

made in the day time, and no breaking out appears to have been made in the night time, or where it is left doubtful whether such breaking and entering, or breaking out, took place in the day or night time, shall be acquitted of the burglary, but may be convicted of the offence specified in the next preceding section. By s. 58, it shall not be available, by way of defence, for a person charged with the offence specified in the next preceding section but one, to shew that the breaking and entering were such as to amount in law to burglary, provided that the offender shall not be afterwards prosecuted for burglary upon the same facts; but it shall be open to the Court, before whom the trial for such offence takes place, upon the application of the person conducting the prosecution, to allow an acquittal, on the ground that the offence, as proved, amounts to burglary; and if an acquittal takes place on such ground, and is so returned by the jury in deliver ing their verdict, the same shall be recorded, together with the verdict, and such acquittal shall not then avail as a bar or defence upon an indictment for such burglary.

Robbery. This offence consists in the felonious taking of money or goods, of any value, from the person of another, or in his presence, against his will, by violence, or putting him in fear of purpose to steal the same. (a)

Robbery is, in effect, larceny, aggravated by circumstances of force, violence, or putting in fear; and a party indicted for robbery may be convicted of larceny, as the latter crime is included in the former. (b) Force is a necessary ingredient in robbery, but not in larceny. (c) Merely snatching property from a person unawares, and running away with it, will not be robbery, (d) be

(a) Re. B. G. Burley, 1 U. C. L. J. N. S. 50, per J. Wilson, J. (b) Reg. v. M'Grath, L. R. 1 C. C. R., 210-11, per Blackburn, J. (c) Ib.

(d) R. v. Baker, 1 Leach, 290; R. v. Walls, 2 C. & K. 214.

cause fear cannot, in fact, be presumed in such a case. The rule appears to be well established that no sudden taking or snatching of property unawares from a person is sufficient to constitute robbery, unless some injury be done to the person, or there be a previous struggle for the possession of the property, or some force used to obtain it. (a)

The fear must precede the taking, for if a man privately steal money from the person of another, and afterwards keep it, by putting him in fear, this is no robbery, for the fear is subsequent to the taking. (b)

The goods must be of some value to the party robbed; and therefore, where the defendant compelled the prosecutor, by threats, to sign a promissory note for a sum of money, it was holden by the Judges not to be robbery, because the note was of no value to the prosecutor. (c) Under such circumstances, however, the defendant might now be indicted for the felony described in the 32 & 33 Vic., c. 21, s. 47.

The goods must be taken either from the person of the prosecutor, or in his presence, (d) and against his will. If the party robbed consent to the robbery, the offence will not be made out; but it is sufficient to prove that the goods were either taken from him by force and violence, or delivered up by him to the defendant, under the impression of that degree of fear and apprehension which is necessary to constitute robbery. (e)

The goods must appear to have been taken animo furandi, as in other cases of larceny; and if a person, under a bona fide impression that the property is his own, obtain it by menace, that is a trespass, but not robbery. (f)

(a) Arch. Cr. Pldg. 413-14.

(b) Fb. 416.

(c) Ib. 416; Reg. v. Smith, 2 Den. 449; 21 L. J. (M. C.) 111.

(d) See R. v. Francis, 2 Str. 1015; R. v. Hamilton, 8 C. & P. 49. (e) Arch. Cr. Pldg. 416-17.

(ƒ) Io.; R. v. Hall, 3 C. & P. 409.