SECTION III.

Offences against the Habitations of Individuals.

to wit.

1. Burglary,

Indictment.

The jurors for our Lady the Queen, upon their oath present, that A. B., on the

day of

in the year of our Lord about the hour of eleven in the night of the same day, the dwelling-house of C. D., situate in the parish of in the county of -, feloniously and burglariously did break and enter, with intent the goods and chattels of the said C. D., in the said dwelling-house then being, then in the said dwelling-house feloniously and burglariously to steal, take, and carry away; and the said A. B. then in the said dwelling-house [one cloth coat and one waistcoat of the value of five pounds] of the goods and chattels of the said C. D., in the said dwelling-house then being found, then feloniously and burglariously did steal, take, and carry away: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [In ordinary cases it is not necessary to state the value of the goods stolen, unless the value be of the essence of the offence. Here they are stated to be of the value of five pounds, in order that the defendant, if acquitted of the burglary, may be found guilty of larceny in the dwellinghouse to the value of five pounds. If the goods stolen be not of that value, the statement of the value may be omitted.

The venue must be laid in the county in which the house is situate. Or where the house is situate on the boundary between two counties, or within five hundred yards of the boundary, it seems that the indictment may be preferred in either county. Ante, p. 65. 1 Russ. 827.

The indictment must show that the breaking and entering was in the night time; and it states the hour, to show that they were so; for by stat. 1 Vict. c. 86, s. 4, the night time, as relates to burglary, commences at nine o'clock in the evening and ends at six in the morning.

It must allege the breaking and entering, &c., to have been done" burglariously as well as feloniously. This is essentially necessary, and if it be omitted, the indictment will be bad. See aute, p. 91.

It must show that the house is a dwelling-house; and even if the burglary have been committed in an out-house

belonging to the dwelling house, and connected with it as hereinafter mentioned, yet, inasmuch as it is a part of the dwelling-house, the offence is usually alleged to have been committed in the dwelling-house; or the indictment may allege it to have been committed in the out-house, stating the out-house to be a part of the dwelling-house. 2 East, P. C. 512. And the name of the owner, or rather the occupier, must be stated. See post, p. 336. So a local description of the house,-the parish, township or place and county, in which it is situate, -must be stated. See ante, p. 119. Where it was stated to be situate "at Norton-juxta-Kempsey," without saying whether it was a parish or township, &c., Patteson, J., held it to be sufficient. R. v. Brookes et al., Car. & M. 544. But a mistake, either in the ownership or the local description, may be amended at the trial. See ante, p. 100.

The intent must be stated, and it must be to commit a felony; and if a felony have been actually committed in the house, the intent may be, and usually is, stated to have been to commit that felony. But it seems that an indictment for burglary may in this respect be drawn in three ways:— stating the breaking and entry to be with intent to commit a felony,-stating the breaking and entry, and a felony actually committed, 1 Hale, 560. R. v. Furnival, R. & Ry. 445. R. v. Vandercomb and Abbot, 2 East, P. C. 514,-or stating the breaking and entry with intent to commit a felony, and also stating the felony to have been actually committed. The latter is the preferable mode, and that always adopted in practice; for if you fail to prove the felony committed, you may still convict of the burglary, or if you fail to prove the intent, &c., you may convict of the felony. The intent must appear to be to commit a felony in the dwelling house; see R. v. Watkins, Car. & M. 264; but if the intent alleged be to commit a larceny, it is not necessary to show whose goods they were, it is sufficient to state them to be "the goods and chattels in the said dwelling-house then being;" R. v. Clarke, 1 Car. & K. 421; afterwards, however, in stating the larceny actually committed, the ownership must be stated, as in an indictment for larceny.

Felony; transportation for life, or not less than ten years; ;—or imprisonment, [with or without hard labour, s. 7], for not more than three years. 1 Vict. c. 86, s. 3. If accompanied by an assault with intent to murder, or if the offender stab, cut, wound, or strike any person in the house, the punishment is death. Id. s. 2. See post, p. 341. Accessories before the fact are punishable in the same manner; accessories after the fact (not being the receivers of the stolen property), by imprisonment [with or without hard labour, Id. s. 7], for not more than two years, Id. s. 6. As to costs, see ante, p. 186; costs of apprehension, see ante, p. 189.

Evidence.

Burglary is the breaking and entering of the dwelling-house of another, in the night time, with intent to commit a felony therein. To maintain this indictment, therefore, the prosecutor must prove :

1. A breaking of the dwelling-house. The breaking necessary to constitute burglary, is either actual or constructive: actual, by the actual and forcible breaking or removal of the door, window, or other part of the house, whereby an entry may be effected; constructive, where an entry is effected by fraud or artifice. If a man break a hole in the wall of a house, it is of course a breaking. 1 Hawk. c. 38, s. 6. If he break the outer door, or unlock it, Id. or open it by picking the lock or even lifting the latch, 1 Hale, 552. 2 East, P. C. 487. R. v. Jordan et al., 7 Car. & P. 432. And see Pugh v. Griffith, 7 Ad. & E. 836, or by taking the glass out of a glass door, R. v. Smith, R. & Ry. 417, or if he raise a trap door which is kept down merely by its own weight, R. v. Russell, Ry. & M. 377. Brown's case, 2 East, P. C. 487, these are all instances of a breaking sufficient in burglary ; but if he open a door which is not fastened or latched, it is otherwise. If a man open a window, by putting up the sash, 1 Hawk. c. 38, 8. 6. R. v. Hyams, 7 Car. & P. 441, or by pulling down the upper sash which was kept in its place merely by the pulley weight, R. v. Haines et al., R. & Ry. 451, or by breaking a pane in it, and putting in his hand to open the fastening, R. v. Perkes, 1 Car. & P. 300. R. v. Bird, 9 Car. & P. 44. R. v. Roberts, alias Chambers, 2 East, P. C. 487, or by making a hole in the glass larger, for the purpose of getting his arm in, R. v. Robinson et al., Ry. & M. 327, this is a breaking sufficient in burglary; but entering by an open window, is not; or if a window be partly raised, but not sufficient to get the arm in, and the party open it further to undo the fastening, it is not a breaking. R. v. Smith, Ry. & M. 178. Where a window opens on hinges, merely opening it when it is not fastened, is not a breaking; but opening it where it is fastened merely by a nail, is. R. v. Hall, R. & Ry. 335. Entering by an open chimney, is a breaking; R. v. Brice, R. & Ry. 450. 1 Hawk. c. 38, s. 6; but if there be an open place in any other part of the house,-as if there be an aperture in a cellar window, merely for the purpose of admitting light, R. v. Lewis, 2 Car. & P. 628, or there be a hole in the roof of the house, R. v. Spriggs, 1 M. § Rob. 357, or if the outer door or window be open, 1 Hawk. c. 38, s. 5. 2 East, P. C. 485,-and the party enter by it, it is not a breaking sufficient to constitute burglary. Yet, although a man thus enter by an open outer door or window, or be other

wise in the house without breaking, if he break an inner door, or unlock it, or open it by unlatching it, 1 Hawk. c. 38, 8. 6. 1 Hale, 553, 554. Johnson's case, 2 East, P. C. 488. Gray's case, 1 Str. 481, for the purpose of entering an inner room, with a felonious intent, it will be a breaking sufficient to constitute burglary; but breaking open a trunk or box in the house, is not, 2 East, P. C. 488, and it has been doubted whether breaking open the door of a cupboard, though fixed to the freehold, is, the judges being equally divided upon the question; 2 East, P. C. 489; and Lord Hale doubts whether it would be burglary in a guest at an inn, opening his own door to commit a felony. 1 Hale, 554. Also it must be some part of the dwelling-house, or of an out-house connected with it, that must be broken; and therefore breaking open an area-gate, R. v. Davis, R. & Ry. 322, or breaking open a gate forming part of the outer wall of the curtilage, which opened merely into a yard, and not into any building, R. v. Bennet et al., R. & Ry. 289, is not a breaking in burglary.

A constructive breaking, is, where the burglar obtains an entry into the dwelling-house, by some trick or artifice. If he make an attack upon the house with intent to rob it, and upon the owner opening the door to drive him off, he enter, this in law is deemed a breaking. 1 Hawk. c. 38, s. 7. So, if by threats of violence he intimidate the owner, and induce him to open the door from fear of the consequences of a refusal, this in law is a breaking. 1 Hale, 553. 2 East, P. C. 486. R. v. Swallow et al., 1 Russ. 792. So, if he come to the house with intent to rob it, and knock at the door, pretending to have business with the owner, and is let in, this in law is a breaking. Id. s. 8. So, where persons, intending to rob a house, raise a hue and cry, and prevail on the constable to search the house, and thereby obtain an entrance, this in law is a breaking. Id. s. 10. So where a man, intending to rob a house, took lodgings in it, and having thus obtained an entrance, attacked the landlord and robbed him, this was holden to be burglary. Id. 8. 9. So, where a woman, intending to rob a house, induced a boy who was in care of it to let her in, by promising him a pot of ale, and having thus obtained an entrance, she sent him for the ale, and during his absence she robbed the house and went off: this was holden to be burglary. Hawkins's case, 2 East, P. C. 485. So, if by agreement and confederacy between thieves and a servant in the house, the servant in the night time open the door and let the thieves in, this in law is a breaking; 1 Hale, 553. 2 East, P. C. 486. Cornwall's case, 2 Str. 881; but if the servant merely pretend to confederate with the thieves, for the purpose of having them taken, and communicate the design to the police and act under their direction, his afterwards opening the door and letting the thieves in, has been holden not to be

such a breaking as to constitute burglary. R. v. Johnson & Jones, Car. & M. 218.

And the breaking, whether actual or constructive, must be in the night time, that is to say, between nine o'clock in the evening and six in the morning. 1 Vict. c. 86, s. 4.

2. An entering into the dwelling-house. An entry of any part of the person within the house is sufficient, although the party be detected, and abandon his design, before he has had an opportunity of effecting the felony intended. 1 Hawk. c. 38, s. 11. Where a man in the night time broke a pane of glass in a shop window, and put his hand in, and took some watches and other things within his reach, this was holden to be burglary. R. v. Gibbons, Fost. 107. And where a sash window of a dwelling-house was fastened in the usual way, by a latch from the bottom of the upper sash to the top of the lower one, and there were inside shutters which were fastened; the prisoner broke a pane of glass in the upper sash of the window and introduced his hand within, with intention to undo the latch by which the window was fastened; and whilst he was cutting a hole in the shutter with a centrebit and before he had undone the latch of the window, he was seized the judges held this to be a sufficieut entry to constitute burglary. R. v. Bayley et al., R. & R. 341. R. v. Perkes, 1 Car. & P. 300. So, putting the hand within the door-way, though for the purpose of making a pass with a sword at some persons in the entry, was holden sufficient. 1 Hale, 553. So, where a shop window, within which there were watches and jewellery, was broken, by the prisoner's thrusting his finger through one of the panes, and the finger was seen on the other side: the judges held this to be a sufficient entry to constitute burglary. R. v. Davis, R. & Ry. 499. So, if the party put in any instrument, for the purpose of committing the felony with it,-as if he put a pistol within a window for the purpose of firing, or a hook to take any thing out, 1 Hawk. c. 38, s. 11; 3 Inst. 64, and according to some, if he fire a loaded gun at the house and the bullet enter it, 1 Hawk. c. 38, s. 41; but see 1 Hale, 555, it is a sufficient entry; but otherwise, if merely the instrument, with which he is effecting the breaking, enter it. 1 Hawk. c. 88, s. 12. R. v. Rust & Ford, Ry. & M. 183. So, where the prisoner had made an entry by getting in at the top of a chimney, and he was afterwards found in the chimney, a little above the mantel piece : the judges held that as the chimney was part of the dwelling, by lowering himself in it, he must be considered as having entered the dwelling-house. R. v. Brice, R. & Ry. 450. So, where the breaking is constructive, the entry of the party thereupon is of course sufficient entry to constitute burglary.

The entry, as well as the breaking, must be in the night