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EVIDENCE.

Prove the breaking (see p. 57, n.), and entering (see p. 58, n.), or the breaking out (see p. 58, n.), as may be charged-that the house was a dwelling-house (see p. 54, n.)-ownership and locality as laid (see p. 56, n.) that the breaking, etc., was in the nighttime-the intent to commit felony (see p. 59, n.) from any facts from which it may be presumed. Rosc. Cr. Ev. 2 ed. p. 301; Arch. 12 ed. p. 383.

OBSERVATIONS.

The requisites of the indictment, and what have been deemed variances, will be found noticed under the respective .heads treated of in the note at p. 54, et seq. If the indictment be suitably framed, a conviction may be had either for burglary or stealing in a dwelling-house, or for simple larceny, as the evidence may be (a). On an indictment against two, one may be convicted of the burglary and the other of the larceny only (b). By the statute 7 Wm. IV. and 1 Vic. c. 86, s. 4, it is declared "that for the purpose of burglary the night shall be considered to commence at 9 P.M., and to conclude at 6 A.M. of the next day." The breaking and entering must both be within the night-time; but the breaking may be on one night and the entry on another, provided both be with a felonious intent (c).

Arch. 382;

Prec. of Indict. for breaking out, 394; Matt. C. L. App. 24.

(a) 2 East, P. C. 517; 1 Leach, 88; see Pearson's case, 5 C. & P. 121; and title LARCENY, post.

(b) Butterworth's case, R. & R. 520;

sed contra, Turner's case, 1 Sid. 171; 2 East, P. C. 519.

(c) 1 Hale, 551; Smith's case, R. & R. 417; Jordan, et al. 7 C. & P. 432.

protection of the law as such (8), provided he had an intention of returning (9). A residing in, or habit of residence, is however necessary to constitute a dwelling-house in which burglary may be committed; using it for meals and purposes of business is not sufficient (10); neither is a mere sleeping by a porter for the protection of goods (11); or by a servant to watch thieves (12); or by servants employed in business, not being domestic servants, but merely to take care of the house (13); or by a servant put into a house by a landlord until relet, he not intending to reside himself (14); or by a person (not being one of his family) put into the house by a tenant to protect the goods and furniture in it until it should be ready for his residence (15). And the same has been ruled where the tenant had put all his goods and furniture into the house preparatory to removing to it with his family, but neither he nor his family had yet slept in it (16). House divided.]—In case of a dwelling-house divided into two or more separate dwellings, provided there be no internal communication, each of the separated dwellings is within the definition of a dwelling-house in burglary (17): as a shop, part of another house to which there is no internal communication, if any part of the family lie there (18); so also where the tenant of a shop or

(8) 1 Hale, 556; 3 Inst. 64; R. v. Murray, et al. 2 East, P. C. 496; Fost. 76.

(9) 1 Hale, 552, 556; Fost. 77; Nutbrown's case, Fost. 76.

(10) Martin's case, R. & R. 108. 11) Smith's case, 2 East, P. C. 497. 12) Brown's case, Id. 502. (13) Flannagan's case, R. & R. 187. (14) Davies's case, 2 Leach, 876; 2 East, P. C. 499.

(15) Harris's case, 2 Leach, 808;

Fuller's case, 2 East, P. C. 498; 1 Leach, 187; see Jones's case, et al. 2 East, 499; Flannagan's case, supra.

(16) Hallard's case, 2 East, P. C. 498; Thompson's case, Id. 2 Leach, 771; see also Lyon's case, 1 Leach, 185; 2 East, P. Č. 497.

(17) 1 Hale, 557; 2 East, 505; see R. v. Egginton, et al. 2 B. & P. 508; Jones's case, 1 Leach, 537.

(18) Ib. see Rogers's case, 1 Leach, 89, 428.

OFFENCE.

BURGLARY-continued. Breaking into any dwellinghouse, and assaulting with intent to murder any person being therein, or stabbing, cutting, wounding, beating, or striking any person. (F.)

7 Wm. IV. and 1 Vic. c. 86, s. 2.

Not triable at Quarter Sessions. 5 & 6 Vic. c. 38, s. 1.

Death.

PUNISHMENT.

May be recorded by 4 Geo. IV. c. 48, s. 1 (ante, p. 4.).

some of his family sleep in another room of the house, also rented by him, unconnected by internal communication, a breaking of the shop will be burglary, and it may be laid to be committed in the dwelling-house of the landlord (19). So where joining the house was a kiln, one end of which was supported by the wall of the house, and adjoining the kiln a dairy, one end of which was supported by the wall of the kiln, the roofs being of different heights, and no internal communication from the house to the dairy, it was held that breaking into the dairy was not burglary (20). Ownership-case of lodgers.]-Proof of the ownership of the dwelling-house has been held sufficient where the occupation was by a wife and her establishment alone, and in such cases the dwelling-house must be laid as that of the husband (21); and this, though living apart from him on her separate income (22); and if living in adultery with another man who paid the household expenses but not the rent (23). So also of an occupation by servants who live there, the master not himself residing (24); but it is otherwise if the servant pays rent, and stands in the character of a tenant, and could not be arbitrarily removed (25); or although he pays no rent, yet has the exclusive possession for his own benefit (26). If a burglary be committed in apartments set apart for the lodgings of the servants of a corporation in a house belonging to them, the ownership must be laid in the corporation (27); so also of apartments in a royal palace, which must be laid as the mansion of the king (28); and if a dwelling-house be the joint property of several partners, it may be described as the house of all the partners though only one reside in it (29). A burglary in the apartments of a guest at an inn must be charged as in the dwelling-house of the innkeeper (30); so of all other cases where the occupier has the use merely, and no interest in the apartments he occupies (31). As to lodgers; if a part of a house be let to a lodger who sleeps there, no other person residing in the rest of the house, a

(19) R. v. Gibson, et al. 1 Leach, 357; 2 East, P. C. 508; Thompson's case, 1 Lew. C. C. 32; see Burrowes's case, 1 Mood. C. C. 274.

(20) R. v. Higgs, 2 C. & K. 322. (21) Fares's case, Kel. 43; 2 East, P. C. 504; and see Boggett v. Frier, 11 East, 301; Smith's case, 5 C. & P. 202.

(22) French's case, R. & R. 491. (23) Wilford's case, Ib. 517. (24) Stock's case, 2 Leach, 1015; 2 Taunt. 389; R. & R. 181; Wilson's case, R. & R. 115; Gibbon's case, 2 Russ. 19; Rawlin's case, 7 C. & P. 150. R. v. Ashley, 1 C. & K. 198.

(25) Jarvis's case, 1' Mood. C. C. 7; see Smith's case, 5 C. & P. 202.

(26) Joblin's case, R. & R. 525;

Camfield's case, 1 Mood. C. C. 42; see Rees's case, 7 C. & P. 568; Witt's case, 1 Mood. C. C. 248.

(27) Picket's case, 2 East, P. C. 501; Hawkins's case, Fost. 38; and see Maynard's case, 2 East, P. C. 501; Wilson's case, R. & R. 115. For the case of an agent occupying the house of a Company, see R. v. Margette, et al. 2 Leach, 930.

(28) R. v. Williams, et al. 1 Hale, 522; and see Kel. 27; 1 Leach, 324; 2 East, P. C. 501.

(29) Athea's case, 1 Mood. C. C. 329.

(30) 1 Hale, 557; R. v. Prosser, 2 East, P. C. 502.

(31) 1 Hawk. c. 38, s. 26.

EVIDENCE.

Prove the burglary as directed (ante, p. 49,)—that the prisoner assaulted A. B. in the dwellinghouse, or that he wounded him, as may be charged-the intent from the circumstances. Rosc. Cr. Ev. 2 ed. 302; Arch. 12 ed. 395.

Prec. of Indict. Arch. Id.;
Matt. C. L. App. 29.

(a) See Arch. 12 ed. 178.
(b) Parfit's case, 8 C. & P. 288.

OBSERVATIONS.

As to the proof of the intent, (a), see post, p. 59, n. A verdict may be had for the attempt only, by 14 & 15 Vic. c. 100, s. 9, (ante, p. 2); or for the burglary, if no assault is proved (b) ; or for a larceny, as the evidence may be (c).

(c) Arch 12 ed. 395. See title LARCENY, post.

burglary in the lodgings is well laid as in the dwelling-house of the lodger (32). So if a house be let out to several lodgers, and the owner do not reside in it, the dwelling-house may be laid as that of a person whose lodgings were broken and robbed (33); but it is otherwise if the owner reside in a part of the house and let the rest out, and both lodger and owner enter by the same door (34). If doubts arise as to the ownership of the dwelling-house, counts may be inserted, alleging it to be that of A. B. and C. respectively (35). Local description. The local description must be strictly proved as laid; if there be the slightest variance as to the parish, the defendant must be acquitted of the burglary. To avoid difficulty, different counts should be inserted varying the local description (36). What a breaking.]—The breaking must be either actual or constructive (37). An actual breaking is where, for the purpose of getting admission for any part of his body, or for a weapon or other instrument to effect his felonious attempt, the offender breaks a hole in the wall of the house, breaks a door or window, picks the lock of a door, or opens it with a key, or even by lifting the latch, or unlooses any other fastening to doors or windows (38). Å breaking therefore may be taking out the glass from a door (39); by pulling down the sash of a window kept only in its place by a weight (40); or by raising a sash-window which was shut down close but not fastened (41); by pushing open a window on hinges fastened with wedges (42); by lifting the latch of a door (43); by thrusting the arm through a broken pane, so breaking more of the pane, and then removing the fastening and opening it (44); by lifting up the flap of a cellar kept down by it own weight (45). But raising a window partly open so as to admit a person, is not breaking of the house (46); neither is a mere entry through an aperture made to admit light (47). Getting into the chimney of a house in the night-time with an intent to commit a felony, is a sufficient breaking to constitute burglary, for though open, it is as much enclosed as the place will allow (48). The breaking must be of some part of the house; therefore where an iron gate was opened by a skeleton key,

(32) R. v. Turner, 1 Leach, 305. (33) R. v. Rogers, 1 Leach, 89; R. v. Bailey, 1 Mood. C. C. 23; R. v. Carrell, 1 Leach, 287; and see R. v. Trapshaw, 1 Leach. 427.

(34) 1 Leach, 90, n.; Kel. 83, 84; 2 East, P. C. 503; R. v. Gibbons, R. & R. 442; R. v. Sefton, Ib. 202; R. v. Wilson, Id. 115.

(35) Arch. 8 ed. 303. (36) Id. pp. 34, 304.

(37) 1 Hale, 551; 3 Inst. 64; 1 Hawk. c. 38, ss. 4, 5; Lewis's case, 2 C. & P. 628.

(38) 3 Inst. 64; 1 Hale, 552; 2 East, P. C. 487; 2 Russ. 3.

(39) Smith's case, R. & R. 417. (40) Haines's case, R. & R. 451.

(41) Hyam's case, 7 C. & P. 441; per Park and Coleridge, Js.

(42) Hall's case, R. & R. 355. (43) R. v. Jordan, et al. 7 C. & P. 432.

(44) Robinson's case, 1 Mood. C. C. 327.

(45) Russell's case, 1 Mood. C. C. 377; Brown's case, 2 East, P. C. 487; Callan's case, R. & R. 157; where the Judges were equally divided: see Lawrence's case, 4 C. & P. 231.

(46) Smith's case, 1 Mood. C. C. 178.

Lewis's case, 2 C. & P. 628; Sprigg's case, 1 M. & Rob. 357.

(48) 1 Hale, 552; 1 Hawk. c. 38, s. 6; 2 East, P. C. 485; Brice's case, R. & R. 450; see Sprigg's case, supra.

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BURNING.-(See title ARSON, ante, p. 22.)

CARNALLY KNOWING.-(See title RAPE.)

CATTLE, injuring. (See title MALICIOUS INJURIES.)

stealing, or killing with intent to steal.-(See title LARCENY.)

and the defendant then passed through an open door, it was holden not a breaking (49); so neither the breaking of an outward gate, part of the outward fence of the curtilage of a dwelling-house, and opening only into the yard (50), and the breaking and entering of a shutter-box which partly projected from a house, and adjoined the side of a shop-window, which side was protected by wood panelling, lined with iron, did not constitute burglary (51). A breaking, to constitute burglary, is not restricted to breaking of the outer wall or doors, nor if these are entered, being open; yet if the defendant afterwards breaks or unlocks an inner door in order to enter one of the rooms, it is a burglary (52); so if a servant open his master's or other chamber, with a felonious intent, or one in a public inn or lodging in the same house, open and enter another's door (53); but whether breaking open cupboards, etc., inside a house, affixed to the freehold, is burglary, is not settled (54); the breaking open chests, etc., is clearly not (55). There may be a constructive breaking by fraud (56), artifice or trick (57), or by menaces (58). So also by conspiracy, as where a servant conspires with a robber, and lets him into the house by night, it is burglary in both (59). Where several come to commit a burglary, and some stand and watch while others enter and rob, all are equally guilty of the burglary (60); and a person present with others at the breaking, but not at the entering, is yet guilty of the whole offence (61). Breaking out.]-A breaking out of a dwelling-house has been held not to be sustained by evidence of the defendant having escaped by lifting a heavy flap-door without a fastening (62); yet this has been held a sufficient breaking into a house (63). A lodger, who in the night-time unbolted a back door and went away with a jacket he had stolen, was convicted of burglary (64). What an entry.]—There must be an entry as well as a breaking (65); if by any part of the body, hand or foot, is sufficient (66); or by any instrument held in

(49) Davis's case, R. & R. 322. Bennett's case, Ib. 289; see 2 East, P. C, 488; 2 Russ. 5. (51) Pain's case, 7 C. & P. 135. (52) 1 Hale, 553; Johnson's case, 2 East, P. C. 488.

(53) 1 Hale, 554; Hutt. 20; Kel. 67.

Haydon's case,

(54) See 1 Hale, 527; 2 Hale, 358, n.; Fost. 108; 2 East, P. C. 489. (55) Fost. 108; 2 East P. C. 489. (56) 1 Hale, 552-3; 2 East, P. C. 485; 1 Hawk. c. 38, s. 9; 4 Bl. Com. 226.

(57) As by promising a boy some ale, and while he is gone for it robbing the house. Hawkins's case, 2 East, P. C. 485,

(58) 2 East, P. C. 480; 1 Hawk. c. 38, s. 3.

(59) 1 Hale, 553; Cornwall's case, 2 Str. 881; 2 East, P. C. 486.

(60) 1 Hale, pp. 439, 534; 3 Inst. 63; 2 East, P. C. 486; Jordan's case, 7 C. & P. 432.

(61) Jordan's case, Id.

(62) Lawrence's case, by Bolland, B., 4 C. & P. 231.

(63) Russell's case. 1 Mood. C. C. 377.

(64) Wheeldon's case, 8 C. & P. 747.

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EVIDENCE.

OBSERVATIONS.

the hand, as a pistol to kill, or a hook to draw out goods (67); or by the introduction of the hand (68); or of a finger only (69). But the entry of an instrument without a felonious intent thereby (as the taking out of goods), is not a sufficient entry (70). An entry down a chimney is sufficient, for it must of necessity be open (71); but through a hole in the roof, for the purpose of admitting light, is not (72). There may be a constructive entry by one of several, as there may be a constructive breaking (73). To intent to commit felony.]-The intent to commit a felony in a dwelling-house (either at common law or by statute, is sufficient) (74), such as larceny, murder, rape, etc., must be proved as laid. Evidence of an actual felony is evidence of a breaking and entering with intent (75); but it must be of a felony concurrent with the burglary (76). The intent may be gathered from all the circumstances of the case (77). If the intent be at all doubtful, it may and should be laid differently, in separate counts (78). The variance was held fatal where the intent was laid to steal a horse, but the proof was an intent to lame him (79); to murder, but the proof was to beat only (80); to steal, but the proof was to carry away a trunk containing money, which the defendant had formerly embezzled from his master, it being no felony to carry away the money (81); to steal, but the proof was of an intent to rescue uncustomed goods which had been seized (82); to steal the goods of J. W., but the proof was that no goods of J. W. were in the house (83). But if the indictment alleges the intent to be generally "the goods and chattels in the dwelling-house then and there being," to steal, and charged the stealing the goods of A., it was held sufficient though the goods were not the goods of A. (84).

(67) 1 Hale, 555; 1 Hawk. c. 38, s. 11.

(68) Gibbon's case, Fost. 108; Bailey's case, R. & R. 341.

(69) Davis's case, R. & R. 499. (70) Hughes's case, 2 East, P. C. 491; 1 Leach. 406; 1 Hawk. c. 38, s. 12; Rust's case, 1 Mood. C. C. 183. (71) Brice's case, R. & R. 450. (72) Sprigg's case, 1 M. & Rob. 357; see Lewis's case, 2 C. & P. 628.

(73) 1 Hale, 555, 6; Jordan's case, ante.

(74) 1 Hawk. c. 38, s. 38; 2 East, P. C. 511; 2 Russ. 35; 4 Bl. Com. 228..

(75) 1 Hale, 560; 2 East, P. C. 514; R. v. Locost, et al. Kel. 30. (76) Vandercomb's case, 2 East, P. C. 514.

(77) See Anon. 1 Lew. C. C. 37; Anon. Matt. C. L. 48; Brices's case, R. & R. 450; Holloway's case, 5 C. & P. 524.

(78) 2 East, P. C. 515; 2 Leach, 1105, n.

(79) Dobb's case, 2 East, P. C. 513.
(80) 1 Hale, 561.

(81) Dingley's case, 2 Leach, 840.
(82) Knight's case, 2 East, P. C. 510.
(83) Jenk's case, 2 East, P. C. 514.
(84) R. v. Clarke, 1 C. & K. 421.,

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