Burglary, definition at

common law,

CHAPTER IV.

BURGLARY, ETC.

THE offence of Burglary (in the strict signification of the term) is thus defined at common law: The breaking and entering of the dwelling or mansion-house of another in the night time with intent to commit a felony (y). The limits of burglary proper have been extended; and the punishment of other crimes closely connected with burglary has been also separately provided for by statute. The crime is thus described in by the Larceny the Larceny Act: "Whosoever shall enter the dwell

Act.

The time.

ing-house of another with intent to commit any felony therein, or being in such dwelling-house shall commit any felony therein, and shall in either case break out of the said dwelling-house in the night, shall be deemed guilty of burglary" (z).

Four points present themselves for consideration: the time, place, manner, and intent.

i. Time.-Formerly great uncertainty existed as to what constituted night—whether it was the interval between sunset and sunrise, whether it included twilight, &c. The matter has been settled by statute. As far as regards burglary and other offences treated

(y) 3 Inst. 63.

(*) 24 & 25 Vict. c. 96, s. 51. "This is an excellent instance of the way in which, by the combined operation of common and statute law, definitions are made, as it were, to stand on their heads. The common law being a very rude system, involving great severity of punishment, affixed special names to complications of crimes. The statute law took up the complicated definition as the starting point, and inserted minor offences to fill up the gap left by the common law."-Fitz. St. 139.

of in the Larceny Act the night is deemed to commence at nine o'clock in the evening, and to conclude at six o'clock on the following morning (a).

Both the breaking and the entering must take place at night. If either be in the daytime, it is not burglary. But the breaking may take place on one night and the entering on another, provided that the breaking is with intent to enter, and the entering is with intent to commit a felony (b).

ii. Place. It must be the dwelling-house of another. The place. To constitute a dwelling-house for the purposes of the statute dealing with burglary and similar offences (the Larceny Act), the house must be either the place where one is in the habit of residing, or some building between which and the dwelling-house there is a communication, either immediate or by means of a covered and inclosed passage leading from the one to the other; the two buildings being occupied in the same right (c). It must be the house of another; therefore a person cannot be indicted for a burglary in his own house, though he breaks and enters the room of his lodger and steals his goods.

The decisions as to what places satisfy the requirements of burglary have been numerous, and, to some extent, conflicting. We may gather the following facts:

The building must be of a permanent character; The nature of therefore a tent or booth will not suffice, although the the building. owner lodge there. The tenement need not be a dis

tinct building; thus chambers in a college or inn of court will suffice.

As to the nature of the residence which is necessary.

(a) 24 & 25 Vict. c. 96, s. 1.

(b) R. v. Smith, R. & R. 417.

(c) R. v. Jenkins, R. & R. 224; 24 & 25 Vict. c. 96, s. 53.

R

to residence.

What amounts The temporary absence of the tenant is not material if he has an intention of returning, though no one be in during the interval. It will suffice if any of the family reside in the house, even a servant (d), unless the servant is there merely for the purpose of protecting the premises (e). It seems that sleeping is necessary to constitute residence (ƒ).

Where part of

the house is

let.

The manner.

The breaking

In the case of hiring a part of a house, the part let off may be considered as the dwelling-house of the hirer if the owner does not himself dwell in the house, or if he and the hirer enter by different doors; that is, of course, provided that the hirer satisfies the other requirements of residence given above. If he does not, the place cannot be the subject of burglary at all; it is not the dwelling-house of the lodger or tenant, because there is no residence; nor of the owner, because it is severed by the letting (g). But if the owner himself, or any of his family, lie in the house, and there is only one outward door at which they and the lodger enter, the lodger is regarded as an inmate; and therefore the house must be described as that of the owner (h).

At common law a church might be the subject of burglary; but this case is now specially provided for by statute ().

iii. Manner. There must be both a breaking and an entering.

As to the breaking.-It must be of part of the house; therefore it will not suffice if only a gate admitting

into the yard is broken. But the breaking is not restricted to the breaking of the outer wall, or doors, or windows; if the thief gains admission by the outer door or window being open, and afterwards breaks or unlocks an inner door for the purpose of plundering one of the rooms, it is burglary (k). This will apply especially to the case of servants, lodgers, &c., who are lawfully in the house. Breaking chests or cupboards does not satisfy the requirements of burglary.

The breaking is either actual or constructive. Actual, Actual breakwhen the offender, for the purpose of getting admission ing. for any part of his body, or for a weapon or other instrument, in order to effect his felonious intention, breaks a hole in the wall of a 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 which the owner has provided (1). It is not burglary if the entry is made through an open window or door, or through an aperture (other than a chimney), provided that the thief does not break any inner door. Nor is raising a window which is already partly open; but it has been decided that lifting the flap of a cellar which was kept down by its own weight was burglary (m).

The breaking is constructive, where admission is Constructive breaking. gained by some device, there being no actual breaking. As, for example, to knock at the door and then rush in under pretence of taking lodgings, and fall on and rob the landlord; or to procure a constable to gain admittance in order to search for traitors, and then to bind the constable and rob the house. These are breaches sufficient to constitute burglary, for the law will not suffer itself to be trifled with by such evasions (n). So

(k) R. v. Johnson, 2 East, P. C. 488.

() 3 Inst. 64; 1 Hale, P. C. 552.
(m) B. v. Russell, 1 Mood. C. C. 377.
(n) 4 Bl. 226.

Entry.

Breaking out.

Attempt.

The intent to commit a felony.

for servants to conspire with a robber, and let him into the house at night, is a burglary in both. To obtain admission to a house by coming down the chimney is sufficient, for the chimney is as much closed as the nature of things will admit; but getting through a hole in the roof left to admit light is not (o).

As to the entry.-The least degree of entry with any part of the body, or with any instrument held in the hand, will suffice; for example, stepping over the threshold, putting a finger or hook in at the open window in order to abstract goods.

Though formerly there were doubts on the subject, it is now provided by statute that it is burglary for a person who has entered the dwelling-house of another with intent to commit a felony therein, or for a person who in such dwelling-house (e.g., a servant) has com-. mitted a felony therein, to break out (p).

When the breaking with intent to commit a felony is proved, but there is no proof of entry, the jury may convict the prisoner of an attempt to commit burglary (q).

iv. The Intent.-To constitute a burglary, there must be an intent to commit some felony in the dwellinghouse, otherwise the breaking and entry will only amount to a trespass (r). It must be either proved from evidence of the actual commission of the felony, or implied from some overt act if the felony is not actually carried out. For it is none the less burglary because the felony which is intended is not perpetrated.