of their servants. R. v. Hawkins, 2 East, P. C. 501. S. P. Picket's case and Maynard's case, Id. So, an indictment for a burglary in apartments in the custom-house, would rightly describe them as the dwelling-house of the Queen. R. v. Jordan, Car. & P. 432. But where the Norwich Union life office had their office of business in the lower part of a house, the upper part being appropriated for the residence of their secretary and his family, and a burglary being committed in the lower part, the house was described in the indictment as the dwelling-house of the secretary: the judges held that as the secretary and his family were the only persons who dwelt in the house, it was properly described as his dwelling-house, although it might have been described as that of the company. R. v. Witt, Ry. & M. 248.

If a man let a part of his house to lodgers, and he or any of his family continue to dwell in the other part,-if a burglary be committed in the house, whether in the part occupied by him or that occupied by the lodgers, the house must be described in the indictment as his dwelling house. Kel. 84. 2 East, P. C. 505. So, in the case of a guest at an inn, if his room be broken and entered in the night time, the indictment must describe it as the dwelling-house of the innkeeper. 1 Hale, 554, 557. 2 East, P. C. 502. Prosser's case, Id. In R. v. Gibbons and Kew, ante, p. 333, where a servant of the prosecutor dwelt in a part of the house, and the rest (excepting the shop) was let off to lodgers, a burglary being committed in the shop, the judges held that it was properly described as the dwelling-house of the prosecutor. Where the prosecutor, (having a dwelling-house with a shop adjoining to it, with separate entrances from the street, but the shop having a back door into a passage in the house), let the shop to his son, who used it as a place of business only, and did not reside there a burglary having been committed in the shop, the judges held that it was properly described in the indictment as the dwelling-house of the father. R. v. Sefton, R. & Ry. 202. But if he, his family or servants, do not dwell in that part reserved to himself, and that part be broken and entered, the offender cannot be convicted of burglary: it cannot be described as his dwelling-house, for he does not dwell in it; nor can it be described as the dwelling-house of his lodger, for it forms no part of his holding, he has not possession of it, or any interest in it. R. v. Wilson R. & Ry. 115. But if in such a case the burglary be in that part occupied by a lodger, it may be described as the lodger's dwelling-house. 2 East, P. C. 505. Rogers's case, Id. 506. Or, if the owner or lessee of a dwelling-house let the whole of it to lodgers, retaining no part of it for his or his family's dwelling, the part each lodger occupies and dwells in, is deemed in law to be the dwelling-house of such lodger, with relation to burglary,

whether the parts holden by the respective lodgers communicate with each other or not. Carrel's case, 2 East, P. C. 506. Trapshaw's case, Id. 1 Leach, 427. 1 Hawk. c. 38, 8. 29. Where the owner of a house divided the shop in two by a partition, each having a door opening into the street, and let one of them and some rooms in the house to Choice, and the other with the remainder of the house to Ryan; at the end of each shop was a door, opening into a common passage, that led to one common staircase; Choice paid 1007. a year and the taxes, for his portion; Ryan 801. a year for his; each had his separate family, separate kitchen, &c., but the rooms occupied by each opened on the common staircase above mentioned: upon an indictment for burglary, it appeared that the prisoner entered at the window of the common staircase, unlocked the door of Ryan's shop and entered it; and the judges held that the place was rightly described in the indictment as the dwelling-house of Ryan. R. v. John Bailey, Ry. & M. 23. So, if a man let off part of his dwelling-house, and retain and live in the rest, but sever the two parts so as to make them distinct tenements, having distinct entrances, and having no internal communication with each other, then each tenement is considered in law the dwelling-house of the party who dwells in it, and must be described as such in an indictment for burglary. 2 Hawk. c. 38, s. 28. 2 East, P. C. 507. And see R. v. Gibson, Id. 508, per cur. So, where two partners had a house, and they divided it so as to have separate entrances and no internal communication, each part was holden to be the separate dwelling-house of the partner occupying it. Jones's case, 2 East, P. C. 504. 1 Leach, 607. But where the house of a partnership had not been divided, and one only of the partners with his family dwelt in it, but the clerks, shopmen, and servants of the firm, ninetyone in number, slept there also,-the judges held the house to be rightly described as the dwelling-house of the partners. R. v. Athea, Ry. & M. 329. The occupier may be named by the name he is usually known by: and where the house was described as the dwelling-house of Mary Johnson, and it appeared that her real name was Mary Davies, but that she had taken the house in the name of Johnson, and had been called and known by that name alone for the last five years,the judges held that this fully warranted her being called Johnson in the indictment. R. v. Norton, R. & Ry. 510. If, however, there be any mistake in this respect, the judge at the trial may amend the indictment. 14 & 15 Vict. c. 100, 8. 1, ante, p. 100.

5. That the house is situate, as described in the indictment. Where it appeared that the house was in the parish of A., but the out-house in which the burglary was committed was in

the parish of B., and the indictment described the house as being in the parish of B., the question whether this was a right local description of the house was reserved for the opinion of the judges: they however gave no opinion upon the point, but decided the case upon another ground. R. v. Bennett et al., R. & Ry. 289. However, a mistake in this respect may be amended by the judge at the trial. 14 § 15 Vict. c. 100, s. 1, ante, p. 100.

6. The intent to commit the felony, as stated in the indictment. This is an essential ingredient in burglary, without which it would be merely a trespass. It is immaterial whether it be a felony at common law or by statute. 1 Hawk. c. 38,

8. 38. In general the intent may be presumed from what the offender actually does after the breaking and entering; if he commit a felony, it may fairly be presumed that he entered for that purpose. Even the very fact of breaking and entering in the night time, raises a presumption that it is done with the intent of stealing. Where a man in the night time had entered a house by the chimney, and was found in it just above the mantel-piece; and when he found he was detected he ascended the chimney again and got out at the roof: the jury found him guilty of burglary with intent to steal, upon this evidence alone, and the judges confirmed the conviction. R. v. Brice, R. & Ry. 450. But this, like other presumptions, may be rebutted. Where persons were indicted for a burglary in the house of A., with intent to steal the goods of B., an excise officer, but it appeared that they broke in for the purpose of taking and restoring to the owner some tea which the excise officer had seized; the judges held that this did not support the indictment. R. v. Knight et al., East, P. C. 510. If a man break and enter the house of another in the night, with intent to beat him merely, and in beating him he kill him, it is not burglary: 1 Hale, 559, 561: here the presumption would be that he intended to commit murder; but the presumption is rebutted by showing what his real intent was at the time of the breaking and entry. Where a man was indicted for burglary with intent to kill a horse, and it appeared in evidence that the prisoner broke and entered a stable belonging to a dwelling-house, for the purpose of laming a horse that was kept there, in order to prevent him from running a race, and he accordingly effected his purpose by cutting the sinews of the fore leg, but the horse afterwards died of the wound as wounding a horse was not at that time felony, the prisoner was acquitted of the burglary; but he was afterwards indicted for killing the horse, and convicted. Dobbs's case, 2 East, P. C. 513.

7. The larceny or other felony laid in the indictment. This

is proved as in the ordinary case of an indictment for the larceny or other felony. But it is not essential to a conviction for the burglary, that the larceny in this case should be proved, if you prove the intent aliundè. On the other hand, if you fail in proving the burglary, and prove the larceny, he may be convicted of the larceny and acquitted of the burglary; 2 Hawk. c. 47, s. 11, ante, p 173; or if two be indicted, one may be convicted of the burglary, and the other of the larceny. R. v. Butterworth et al., R. & Ry. 520.

If you fail in proving the breaking and entering to have been in the night time, the prisoner may be convicted of house-breaking, under stat. 7 & 8 G. 4, c. 29, s. 12, post, p. 347, if a larceny in the house be proved. R. v. Compton et al., 3 Car. & P. 418. If you fail to prove the breaking and entry, the defendant may still be convicted of stealing in the dwelling-house, if the goods stolen be of the value of five pounds. Hungerford's case, 2 East, P. C. 513. And if you fail to prove the value to be five pounds, he may be convicted of a common larceny. See ante, p. 119.

As to principals in the first and second degrees if several come to commit a burglary together, and some stand outside in the places adjacent to watch, whilst others break and enter and rob the house,-they are all guilty, 1 Hawk. c. 38, s. 13, the latter as principals in the first degree, the former as principals in the second. See ante, p. 12.

2. Burglary and Personal Violence.

Indictment.

Same as the last form, ante, p. 328, to the words "steal, take, and carry away; and that the said A. B. did then, in the said dwelling-house, feloniously and burglariously assault, stab, cut, and wound ["assault with intent to murder any person therein, or shall stab, cut, wound, beat, or strike any such person"] one E. F., in the said house then being: 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.

Felony, death. 1 Vict. c. 86, s. 2. Accessories before the fact, the same punishment. Id. s. 6.

Evidence.

To maintain this indictment, the prosecutor must prove1. The burglary as in the last case, ante, p. 330.

2. The personal violence, as stated in the indictment As to stabbing, cutting, or wounding, see ante, p. 260; and as to

the intent to murder, see ante, p. 258. If you fail in proving this personal violence, the defendant may still be convicted of the burglary, &c. See ante, p. 341.

3. Burglary, by Breaking out of a House.

Indictment.

The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the day of, in the year of our Lord -, did enter the dwelling-house of C. D., situate at —, in the county of with intent then in the said dwelling-house feloniously to steal, take, and carry away the goods and chattels of the said C. D. then there being; and the said A. B. having so entered the said dwellinghouse with the intent aforesaid, afterwards on the day and year aforesaid, about the hour of eleven in the night of the same day, the said dwelling-house of the said C. D. feloniously and burglariously did break, to get out of the same, and then in the night time as aforesaid feloniously and burglariously did break out of the same: 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. [If a larceny appear to have been committed, you may add another count thus:] And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., on the day and year aforesaid, being in the dwelling-house of the said C. D., situate at in the county aforesaid, then in the said dwellinghouse feloniously did steal, take, and carry away one gold watch of the value of five pounds of the goods and chattels of the said C. D. in the said dwelling-house then being found; and that the said A. B., so being then in the said last-mentioned dwelling-house, and having so committed the felony last afore said in the said dwelling-house, afterwards, on the day and year aforesaid, at the hour of eleven in the night of the same day, the said dwelling-house of the said C. D. feloniously and burglariously did break to get out of the same, and then in the night time as aforesaid feloniously and burglariously did break out of the same: 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. [The statute 7 & 8 G. 4, c. 29, s. 11, defines both the offences in the above counts: "If any person shall enter the dwelling-house of another, with intent to commit felony, or being in such dwelling-house shall commit felony, and shall in either case break out of the said dwelling-house in the night time."

Declared to be burglary. 7 & 8 G. 4, c. 29, s. 11. See ante, p. 329.