open it; forcing it open by pushing against it is a sufficient breaking to constitute a burglary. Rex v. Hall, R. & R. C. C. 355. Removing the fastening of a window by the hand introduced through a partially broken pane of the window, and thereby opening the window and entering, is a breaking; not by breaking the residue of the pane, but by unfastening and opening the window. Rex v. Robinson, 1 M. C. C. 327; S. P. Ryan v. Shilcock, 7 Exch. 72. A chimney is part of a dwellinghouse, and therefore the getting in at the top is a breaking of the dwelling-house; and where the prisoner, by lowering himself in the chimney, made an entry into the dwelling-house, though he did not enter any of the rooms, it is sufficient to constitute burglary. Rex v. Brice, R. & R. C. C. 450. Pulling down the sash of a window is a breaking sufficient to constitute burglary, although it has no fastening, and is only kept in its place by the pulley-weight, and it is equally a breaking, although there is an outer shutter which is not put to. Rex v. Haines, R. & R. C. C. 451. A window was a little open, and the prisoner pushed it wide open and got in:-Held, no sufficient breaking. Rex v. Smith, Car. C. L. 293; 1 M. C. C. 178. When the family within the house was forced by threats and intimidations to let in the offenders by one of them opening the door: -Held, that it was as much a breaking by those who made use of such intimidations without, to prevail upon them so to open it, as if they had actually burst the door open. Rex v. Swallow, 2 Russ. C & M. 9-Thompson. On an indictment for burglary, it was proved the legs of the prisoner were seen hanging about a foot from the ground, from a window, and no other part of his body was visible till he jumped down and ran away :-Held, that though it appeared there was a hole broken in the window large enough to admit a man's head and shoulders, there was no evidence to shew that there had been any actual entry, no property being lost. Reg. v. Meal, 3 Cox, C. C. 70-Coltman. A servant pretended to concur with two persons, who proposed to him to unite with them in robbing his master's house. The master be ing out of town, the servant communicated with the police, and acted under their instructions. In consequence of this, a little after nine o'clock one evening, he let in one of the persons, by lifting the latch; but before that person had taken any property he was seized by the police, and, a crow-bar being found upon him, was immediately placed in confinement. After this the servant went out again, and fetched the second person, and let him in the same manner. This person was seized with a basket of plate in his hand, which he had carried from the kitchen, part of the way upstairs :-Held, that neither of the persons could be convicted of burglary; but that the one who was seized with the plate might be convicted of stealing in a dwellinghouse, and also that the other might be indicted as an accessory before the fact to such stealing. Reg. v. Jones, Car. & M. 218 - Maule and Rolfe. 3. Breaking Out. If a person commits a felony in a house, and breaks out of it in the night-time, this is burglary, although he might have been lawfully in the house. Reg. v. Wheel don, 8 C. & P. 747-Erskine. On an indictment for stealing wine out of a cellar, and burglariously breaking out therefrom, it appeared that the prisoner broke out of the cellar by lifting up a heavy flap by which the cellar was closed on the outside next the street; the flap was the house at a future time, and actnot bolted, but it had bolts-six ually entered on the Sunday:-Held, judges were of opinion that there that this was burglary, although a was a sufficient breaking to consti- day had intervened, the breaking tute burglary, but the remaining and entering being both by night, six were of a contrary opinion. Rex and the breaking being with intent v. Callan, R. & R. Č. Č. 157. And afterwards to enter. Rex v. Smith, see Rex v. Brown, 2 East, P. C. 487; R. & R. C. C. 417. 2 Leach, C. C. 1016, n. The lifting up of a trap-door covering a cellar, which was merely kept in its place by its own weight, and which had no fastenings, because, it being a new trap-door, they had not been put on, is not a sufficient breaking to constitute a burglary; but unlocking and opening a hall door and running away is a sufficient breaking out of the house. Rex v. Lawrence, 4 C. & P. 231Bolland. But, according to Rex v. Russell, 1 M. C. C. 377, lifting the flap of a cellar, usually kept down by its own weight, would constitute burglary. 4. By Lodgers. If a lodger in a house has committed a larceny there, and in the night-time even lifts a latch to get out of the house with the stolen property, this is a burglariously breaking out of the house. Reg. v. Wheeldon, 8 C. & P. 747-Erskine. 5. What is Night-time. By 24 & 25 Vict. c. 96, s. 1," the night shall be deemed to commence at nine of the clock in the "evening of each day, and to con"clude at six of the clock in the "morning of the next succeeding "day." (Similar to 7 Will. 4 & 1 Vict. c. 86, repealed.) In burglary, where the burglary is one night after, a person present at the breaking, though not present at the entering, is in law guilty of the whole offence. Rex v. Jordan, 7 C. & P. 432-Gaselee and Gurney. The prisoner broke the glass of the prosecutor's side door on the Friday night, with intent to enter 6. What is a Dwelling-house. [See 24 & 25 Vict. c. 76, s. 53, by which many of the following cases are affected, but they are retained as they may still serve to illustrate the subject.] If the outhouse is adjoining to the dwelling-house, and occupied as parcel thereof, though there is no common inclosure or curtilage, it may still be considered as part of the mansion. Rex v. Brown, 2 East, P. C. 493. An outhouse in the yard of a dwelling-house will be parcel of the dwelling-house if the yard is inclosed, though the occupier has another dwelling-house opening into the yard, and he lets such dwellinghouse with easements in the yard. Rex v. Walters, 1 M. C. C. 13. Two adjoining houses belonging to two partners, of which the rent and taxes are paid from the joint fund, may still be the respective mansions of each partner, if there is no communication from one to the other but through the outer doors to the street. Rex v. Jones, 1 Leach, C. C. 537; 2 East, P. C. 504. A permanent building used and slept in only for a short time for the purpose of a fair, may be treated as the dwelling-house of the person so occupying it, though unoccupied the rest of the year. Rex v. Smith, 1 M. & Rob. 256-Park. A burglary committed in a banker's shop, in which no person slept, but to which there was a communication by a trap-door and a ladder from the upper rooms of the house, in which only a weekly workman and his family lived by the permis sion of the three partners, who were owners of the whole house, may be laid to have been committed in the dwelling-house of these partners, they inhabiting it by means of their servant. Rex v. Stock, 2 Leach, C. C. 1015; R. & R. C. C. 185; 2 Taunt. 339. A summer-house used occasionally for tea and retirement, within the same inclosure as the house, though at the distance of about half a mile, was a building within 4 Geo. 2, c. 32. Rex v. Norris, R. & R. C. C. 69. And see Rex v. Parker, 1 Leach, C. C. 320, n. A building within the same fence as the dwelling-house, and used with it as parcel of the dwelling-house, though it has no internal communication with the house but through an open passage, is parcel of the dwelling-house. Rex v. Hancock, R. & R. C. C. 170. And such a building is equally part of the dwelling-house, though used partly for the separate business of the occupier of the dwellinghouse, and partly for a business in which he was a partner. Ib. therewith and under the same roof, will be deemed part of the dwelling-house, though it has a separate outer door, and no internal communication with the rest of the house. Rex v. Burrowes, 1 M. C. C. 274. Where the owner of a house has never by himself, or by any of his family or servants, slept in the house, it is not his dwelling-house, so as to make the breaking in and stealing goods thereout burglary, though he has used it for his meals, and all the purposes of his business. Rex v. Martin, R. & R. C. C. 108. Although a man leaves his house, and never means to reside in it again, yet, if he uses part of it as a shop, and lets a servant and his family live and sleep in another part of of it, for fear the place should be robbed, and lets the rest to lodgers, the habitation by his servant and family is an habitation by him, and the shop will be considered as part of the dwelling-house, so as to constitute the breaking thereof burg lary. Rex v. Gibbons, R. & R. Č. C. 442. The prosecutor's house was at the W. let part of his house, viz. a corner of a street, and adjoining shop, passage, cellar, &c. to his son, thereto was a workshop, beyond who did not sleep therein, and there which a stable and a coach-house was a distinct entrance into the son's adjoined; all were used with the part, but his passage led to his fath-house, and had doors opening into a er's cellars, and they were open to his father's part of the house. The shop was broken into, and the prisoner was convicted thereof:-Held, that by reason of the internal communication, the son's part continued part of the father's house, and therefore that was burglary. Rex v. Sefton, R. & R. C. Č. 202. A shop adjoining to a house, if under the same roof, and within the curtilage, is part of the dwellinghouse, although there is no internal communication between the shop and the house, and although no person sleeps in the shop. Rex v. Gibson, 1 Leach, C. C. 357; 2 East, P. C. 508. A room in a dwelling, occupied yard belonging to the house, which yard was surrounded by adjoining buildings, so as to be altogether an inclosed yard; the workshop had no internal communication with the house, and it had a door opening into the street; its roof was higher than that of the dwelling house: the street door of the workshop was broken open in the night-Held, the workshop was parcel of the dwelling-house. Rex v. Chalking, R. & R. C. C. 334. [The law laid down in this case and the six following cases is altered by 24 & 25 Vict. c. 96, s. 53.] A garret made use of as a workshop, and rented with a sleeping room by the week, is the mansion of the lodger, if the landlord does not | sleep under the same roof. Rex v. Carrell, 1 Leach, C. C. 237; 2 East, P. C. 506. Lofts over coach-houses and stables, converted into lodging-rooms, are the dwelling-houses of their inhabitants, if there is an outer door. Rex v. Turner, 1 Leach, C. C. 305; 2 East, P. C. 492. An area gate, opening into the area only, is not part of the dwelling-house so as to make the breaking thereof burglary, if there is any door or fastening to prevent persons in the area from entering the house, although such door or fastening may not be secured at the time. Rex v. Davis, R. & R. C. C. 322. A building used with and under the same roof with a dwellinghouse, but having no internal communication with it, although opening into an inclosed yard belonging to the house, and also into an adjoining street, may be parcel of the dwelling-house, so as to constitute the breaking and entering thereof a burglary. Rex v. Lithgo, R. & R. C. Č. 357. although there be an awning extending therefrom to the dwellinghouse. Rex v. Westwood, R. & R. C. C. 495. But if such a building is made a sleeping place for any of the servants of the dwelling-house, it may be deemed a distinct dwelling-house. Ib. 7. What is not a Dwelling-house. A manufactory carried on in the centre building of a great pile, in the wings of which several persons dwelt, but having no internal communication with the same, though the roofs of all were connected, and the entrances of all were out of the same common inclosure:-Held, not a dwelling-house in which burglary could be committed. Rex v. Egginton, 2 East, P. C. 494, 666; 2 Leach, C. C. 913; 2 B. & P. 508. A door which only forms part of the outward fence of the curtilage, and opens into no building but into the yard only, is not such a part of the dwelling-house as that the breaking thereof will constitute burglary. Rex v. Bennett, R. & R. C. Č. 289. The prisoner broke into a goosehouse opening into the prosecutor's Where the prosecutor left his yard, into which his house also house without any intention of livopened; the yard was surrounded ing in it again, and intending to use partly by other buildings of the it as a warehouse only; though he homestead, and partly by a wall; had persons (not of his family) to some of the buildings had doors sleep in it, to guard the property: opening backwards, and there was-Held, that it could not be consida gate in one part of the wall ered as the dwelling-house of the opening upon a road; this goose- prosecutor, so as to support a conhouse, was held part of the dwell-viction for stealing therein. Rex v. ing-house, so as to constitute the Flannagan, R. & R. C. C. 187. breaking thereof burglary. Rex v. Clayburn, R. & R. C. C. 360. The owner of a house puts a person into it to sleep there at nights till he can get a tenant, in order to protect some furniture there, which he had purchased of the last tenant, which servant had so slept there for three weeks before, but the owner never intended to inhabit it himself: Buildings separated from the dwelling-house by a public road, however narrow, will not be a parcel of the dwelling-house, so as to constitute the breaking thereof burglary, if there is no common fence or roof to connect them, although held-Held, that a thief could not be by the same tenure, and although some of the offices necessary to the dwelling-house adjoin thereto, and convicted of stealing goods in the dwelling house of such owner to the value of 40s. within 12 Anne, c. 8. . Rex v. Davis, 2 East, P. C. 499; 2 not be committed by breaking into 8. Breaking into Churches and Places of Divine Worship. Or if the owner of a house has no intention of residing in it himself, it cannot be considered his dwellinghouse, although his servant sleeps in it every night, if his sleeping By 24 & 25 Vict. c. 96, s. 50, there be merely to protect the fur-"whosoever shall break and enniture. Ib. "ter any church, chapel, meeting. A house into which the owner "house or other place of divine has only removed his goods, but has "worship, and commit any felnot slept in it, is not his dwelling-"ony therein, or being in any house as to burglary. Rex v. "church, chapel, meeting-house or Thompson, 2 Leach, C. C. 771; 2" other place of divine worship shall East, P. C. 498. "commit any felony therein and A nocturnal breaking into a house" break out of the same, shall be of which the owner has no farther "guilty of felony, and, being contaken possession than by depositing "victed thereof, shall be liable, at in it sundry articles of merchandise," the discretion of the court, to be neither he nor any servant of his "kept in penal servitude for life, or having slept in it, is not burglary, "for any term not less than five for it cannot be considered as the 66 years (27 & 28 Vict. c. 47), or to dwelling-house of the owner. Rex"be imprisoned for any term not v. Harris, 2 Leach, C. C. 701; 2 East, "exceeding two years, with or with P. C. 498. "out hard labour, and with or with "out solitary confinement." (Previous provisions, 7 & 8 Geo. 4, c. 29, s. 10.) A house under repair, but not inhabited, is not the dwelling-house of the owner, though part of his property is deposited therein. Rex v. Lyons, 1 Leach, C. C. 185; 2 East, P. Č. 497, differently reported: S. P., Rex v. Fuller, 1 Leach, C. C. 186, n. A porter lying in a warehouse does not make it a dwelling-house. Rex v. Smith, 2 East, P. C. 497; 2 Leach, C. C. 1018, n. And see Rex v. Brown, 2 East, P. C. 501; 2 Leach, C. C. 1018, n. By s. 57, "whosoever shall break "and enter any dwelling-house, "church, chapel, meeting-house or "other place of divine worship, or "any building within the curtilage, "school-house, shop, ware-house or "counting-house, with intent to com"mit any felony therein, shall be "guilty of felony, and, being con"victed thereof, shall be liable, at "the discretion of the court, to be "kept in penal servitude for any "term not exceeding seven years "28 Vict. c. 47), or to be imprison"ed for any term not exceeding two "years, with or without hard la"bour, and with or without solitary confinement." On the trial of an indictment for burglary, it appeared that adjoining to the prosecutor's dwelling-house" and not less than five years (27 & was a kiln, one end of which was supported by the end wall of the dwelling-house, and that adjoining to the kiln was a dairy, one end of which was supported by the end wall of the kiln. There was no internal communication from the dwellinghouse to the dairy, and the roofs of dwelling-house, kiln and dairy were of different heights: -Held, that the dairy was not part of the dwelling-house, and that a burglary could By 7 & 8 Geo. 4, c. 27, 23 Hen. 8, c. 1, was wholly repealed, and so much of 1 Edw. 6, c. 12, as related to this subject; and 24 & 25 Vict. c. 95, repealed 7 & 8 Geo. 4, c. 29, s. 16, and 7 Will. 4 & 1 Vict. c. 90, s. 2. |