408. Breaking place of worship. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who breaks and enters any place of public worship and commits any indictable offence therein, or who, having committed any indictable offence therein, breaks out of such place. R.S.C., c. 164, s. 35.

409. Every one is guilty of an indictable offence and liable to seven years' imprisonment who breaks and enters any place of public worship with intent to commit any indictable offence therein. R.S.C., c. 164, s. 42.

Upon an indictment for breaking into a parish church, and stealing two surplices and a it appeared that the surplices and scar were stolen from a box kept in the church tower; this tower was built higher than the church, and had a separate roof, but it had no outer door, the only way of going into it being through the body of the church, from which the tower was not separated by a door or partition of any kind. It was objected that the stealing of these articles deposited in the tower was not sacrilege. But it was held that a tower, circumstanced as this tower was, must be taken to be part of the church, and that the stealing of these articles in the tower was a stealing in the church. (1)

Where, in another case it appeared that the offence had been committed by breaking into the vestry and stealing the sacramental plate out of a chest in the vestry; and the vestry had in old times been the porch of the church, and when the church was altered the porch was turned into the vestry room, and it had never been used for vestry purposes, but only for the robing of the clergyman, and the custody of the sacramental plate; and the vestry had a door opening into the body of the church, and another into the churchyard, which was always kept locked inside, Colerige, J, held that this vestry was as much a part of the church, for the purpose of this indictment, as the altar or the nave. (2)

410. Burglary. Every one is guilty of the indictable offence called burglary, and liable to imprisonment for life, who

(a.) breaks and enters a dwelling-house by night with intent to commit any indictable offence therein; or

(b.) breaks out of any dwelling-house by night, either after committing an indictable offence therein, or after having entered such dwelling-house, either by day or by night, with intent to commit an indictable offence therein. R.S.C., c. 164, s. 37. (24-25 Vict., c. 96, ss. 51, 52, 54, Imp.)

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Night" is the interval between nine P. M. and six A. M. of the following day. (See article 3 (q.) ante, p. 4.)

The ownership of the goods need not be stated in the indictment (3)

The intent to commit an indictable offence ought to be charged; (4) or it will be necessary to prove the commission of some indictable offence in the house after the breaking and entering. Thus, where an indictment was for burglariously breaking and entering a dwelling-house and then and there stealing goods therein and it omitted to state the intent, it was held that the defendant might be convicted of the burglary, if the stealing were proved but not otherwise. (5)

(1) R. v. Wheeler 3 C. & P. 585.

(2) R. v. Evans, 1. C. & M. 288.

(3) See article 613 (b), post. See, also, R. v. Clarke, 1 C. & K. 421. (4) 1 Hawk, P. C. 559.

(5) R. v. Furnival, R. & R. 445.

Before the statute 7 Will, and 1 Vict., c. 86, sec. 4. (re-enacted in 24 and 25 Vict., c. 96, sec. 1), which first declared that for the purposes of a burglary the night should be from 9 P. M. to 6 A. M., many nice questions arose as to what fell within the meaning of "night." If the breaking and entering were in the night it was burglary; if in the day time it was not; if it were committed during twilight then if there were not day-light or crepusculum enough left to discern a man's face, it was burglary; otherwise it was not (1). But this did not extend to moonlight nights. (2)

Both a breaking and an entering are necessary to constitute burglary; and the breaking and entering must both be in the night. If the breaking be in the day and the entering in the night, or the breaking in the night and the entering in the day, it will not be burglary; but the breaking may be on one night and the entering on another; (3) provided the breaking be with intent to enter, and the entering with intent to commit an indictable offence. (4)

Every entrance into a house, in the nature of a mere trespass is not sufficient. Thus, if a man steals in a house which he enters by a door or window which he finds open, or through a hole or opening which was made there before, (unless it be such a permanent opening as a chimney etc., as mentioned in article 407 (b) ante, he will not be guilty of burglary (5). But see Art. 415 post, as to being found in a dwelling house, at night. There must be either an actual breaking of some part of the house or a breaking by construction of law, as where the entrance is obtained by some threat or artifice, or by collusion with some one in the building, as provided by the second sub-clause of article 407 (b), ante.

Actual breaking.-Where, a cellar window, which was boarded up, had in it a round aperture of considerable size, to admit light into the cellar, and through this aperture one of the prisoners thrust his head, and, by the assistance of the other prisoner, he thus entered the house, but the prisoners did not enlarge the aperture at all; it was held that this was not, a sufficient breaking. (6) So where a hole had been left in the roof of a brewhouse, part of a dwellinghouse. for the purpose of light, and it was contended that an entry through this hole was like an entry by a chimin-y; it was held that this was not a sufficient breaking. Bosanquet, J.." The entry by the chiminey stands upon a very different footing; it is a necessary opening in every house, which needs protection; but if a man choose to leave an opening in the wall or roof of his house, instead of a fastened window, he must take the consequences. The entry through such an opening is not a breaking." (7)

The following are some examples of burglarious breakings;

Making a hole in the wall; forcing open the door; putting back, picking or opening the lock with a false key; breaking the window; taking a pane of glass out of the window, either by taking out the nails or other fastening, or by drawing or bending them back; putting back the leaf of a window with an instrument, drawing or lifting a latch; turning the key where the door is locked on the inside; or unloosing any other fastening which the owner has provided. (8)

Where a pane of glass had been cut for a month, but there was no opening whatever, as every portion of the glass remained exactly in its place, and the prisoner was both seen and heard to put his hand through the glass, this was held a sufficient breaking. (9)

(1) 3 Inst. 63; 1 Hale 550; 4 Bl. Com. 224.

(2) 4 Bl. Com. 224; 1 Hale 551.

(3) Hale 551,

(4) R. v. Smith, R. & R. 417; R. v. Jordan, 7 C. & P. 432.

(5) 4 Bl. Com. 225.

16) R. v. Lewis, 2 C. & P. 628.

(7) R. v. Spriggs, | M. & Rob. 357.

(8) 1 Hale, 552: 3 Inst 64; 1 Hawk. P. C. c. 38; s. 6.

(9) R. v. Bird, 9 C. & P. 44.

So where a window opening upon hinges is fastened by a wedge, and pushing against it will open it, if such window be forced open by pushing against it, there will be a sufficient breaking. The prisoner got into the prosecutor's cellar, by lifting up a heavy grating, and into his house by forcing open a window which opened on hinges, and was fastened by two nails which acted as wedges, but would open by pushing it; upon a case reserved the judges held the forcing open the window to be a sufficient breaking. (1) So pulling down the sash of a window is a breaking, though it has no fastening, and it is only kept in its place by the pulley weight, although there was an outer shutter, which was not closed. The prisoner had entered the house by pulling down the upper sash of a window, which had no fastening, and was kept in its place by the pulley weight only; and there was an outer shutter but it was not put to. Upon a case reserved the judges held unanimously that pushing down the sash was a breaking. (2)

And raising a window which is shut down close, but not fastened, is a breaking, although there be a hasp, by which it could have been fastened and kept down. (3)

Cutting and tearing down a netting of twine which is nailed to the top. bottom, and sides of a glass window, so as to cover it, and entering the house through such window, though it was not shut, constitute a sufficient breach and entry. (4)

Where a window was partly open, but not sufficiently to admit a person's body, and the prisoner raised it higher and entered by the larger aperture thus made, it was unanimously held by the judges, on a case reserved, that this was not a breaking. (5)

Where, however, a square of glass in a kitchen window, through which the prisoners entered, had been previously broken by accident, and half of it was out at the time when the prosecutor left the house, and the aperture was sufficient to admit a hand, but not to enable a person to put his arm in. so as to undo the fastening of the casement, and one of the prisoners thrust his arm through the aperture, thereby breaking out the residue of the square, and having so done, he removed the fastening of the casement; Alderson and Patterson, JJ., entertaining a doubt from the difficulty they had to distinguish satisfactorily the case of enlarging a hole already existing, from the enlarging an aperture, by lifting up further the sash of a window, in the preceding case, submitted the case to the judges, who were unanimously of opinion that this was a sufficient breaking,-not by breaking the residue of the window pane, -but by unfastening and thus opening the window itself. (6)

On one occasion it was doubted whether getting into a house through the chimney was a sufficient breaking and entering to constitute burglary; but it was afterwards agreed that it was sufficient, on the ground that a house, with no opening, except through the chimney, is as much closed as the nature of things will permit (7). And it has been held that getting into the chimney of a house is a sufficient breaking and entering to constitute burglary, even if the party does not enter any room of the house. The prisoner got in at the top of a chimney and went down to just above the mantelpiece of a room on the ground floor; and upon a case reserved, two judges thought it was not a breaking and entering as the prisoner could not be considered as being in the dwelling-house when he had not got below the mantel-piece; but the ten other judges, held otherwise on the ground that the chimney was part of the dwelling-house, that

(1) R. v. Hall, R. & R. 355.

(2) R. v. Haines & Harrison, R. & R. 451.

(3) R. v. Hyams, 7 C. & P. 441.

(4) Commonwealth v. Stephenson, 8 Pick, 354.

(5) R. v. Smith, R. & M., C. C. R., 178.

(6) R. v. Robinson, R & M., C. C. R., 327.

(7) 1 Hawk. P. C. c. 38, s. 6; 2 East, P. C. 485.

the getting in at the top was a breaking of the dwelling-house, and that the prisoner's lowering himself down was an entry within the dwelling-house. (1)

A case is reported. in which the breaking was held to be sufficient, though there was no interior fastening to the doors which were opened. The place which the prisoner entered was a mill, under the same roof, and within the same curtilage, as the dwelling-house: through the mill there was an open entrance, or gateway, capable of admitting wagons, and intended for the purpose of loading them more easily with flour by means of a large aperture or hatch, over the gateway, communicating with the door above; and this aperture was closed by folding doors, with hinges. which fell over it, and remained closed by their own weight, but without any interior fastening; so that persons on the outside, under the gateway, could push them open at pleasure, by a moderate exertion of strength. The prisoner entered the mill in the night, by so pushing open the folding doors, with the intention of stealing flour; and this was held to be a sufficient breaking. and the prisoner was accordiugly convicted of burglary. (2)

But doubts were entertained whether lifting up the trap-door or flap of a cellar, which was kept down solely by its own weight, was a sufficient breaking; such trap-door or flap being used for the purpose only of taking in liquors to the cellar, and not as a common entrance for persons. The prisoner was indicted for stealing some bottles of wine in a dwelling-house, and afterwards burglariously breaking out of the house. The wine was taken from a bin, in a cellar of the house, which was a public house, and removed by the prisoner from the bin to the trap-door, or flap of the cellar, in getting out of which he was apprehended. The cellar was closed on the outside, next the street only by the flap, which had bolts belonging to it, for the purpose of bolting it on the inside, and was of considerable size, being made to cover the opening through which the liquors consumed in the public house were usually let down into the cellar. The flap was not bolted on the night in question, but it was proved to have been down; in which situation it would remain, unless raised by considerable force. When the prisoner was first discovered, his head and shoulders were out of the flap; and upon an attempt being made to lay hold of him, he made a spring, got quite out, and ran away, when the flap fell down, and closed in its usual way, by its own weight. Upon this evidence it was doubted whether there was a sufficient breaking to constitute the crime of burglary; and the prisoner having been convicted, the question was saved by the learned judge who presided at the trial, for the opinion of the twelve judges, who were divided in opinion as to this being a sufficient breaking. (3)

It has however, since been held, that lifting up the flap of a cellar, which was kept down by its own weight, is a sufficient breaking, although such flap may have been occasionally fastened by nails, and was not so fastened at the time the entry was made. (4)

A door or wall forming part of the outward fence of the curtilage and opening into no building, but into the yard only, was held to be no such part of the dwelling house as would render it burglary to break and enter by such door or wall; and it was held to make no difference that the door broken was the entrance to a covered gateway, and that some of the buildings belonging to the dwelling house and within the curtilage were over the gateway, and that there was a hole in the ceiling of the gateway for taking up goods into the buildings above. The prosecutor had a dwelling house, warehouses and other buildings and a yard; the entrance into the yard being through a pair of gates, which opened into a covered way. Over this covered way were some of the warehouses, and over the gates there was a loop-hole and crane to admit of goods being hauled up. There was also a trap-door in the roof of the covered way and there was

(1) R. v. Brice, R. & R. 450.

(2) Brown's case, 2 East, P. C., c. 15, s. 3, p. 487.

(3) R. v. Callan, R. & R. 157.

(4) R. v. Russell, R. & M., C C. R. 377.

free communication from the warehouse to the dwelling house. The prisoners broke open the gates in the night, with intent to steal. After breaking open the gates they entered the yard, but they did not enter any of the buildings. Upon a case reserved the judges where unanimous in holding that the outward fence of the curtilage, not opening into any of the buildings, was no part of the dwelling. house. (1)

An area gate opening into the area only is not such a part of the dwellinghouse that the breaking of the gate will be burglary, if there be any door or fastening to prevent persons in the area from entering the house, although such door or other fastening may not be secured at the time. The prisoners opened an area gate in a street in London and entered the house through a door, which happened to be open within the area, but which door was usually fastened when the family retired for the night, and was one of the ordinary barriers against thieves. Having committed theft in the house a question arose whether the breaking of the area gate was a breaking of the dwelling house so as to constitute burglary; and as from the area into the house, there was no free passage in time of sleep, the judges held unanimously that the breaking was not a breaking of the dwelling house (2)

It has been held, and it is expressly declared by article 407 (b), ante, that the breaking requisite to constitute a burglary is not confined to the external part of the house, but may be of an inner door after the offender has entered by means of a part of the house which was open. Thus, if A enter the house of B, in the night time through the outward door which is open, or by an open window, and when within the house, turn the key of a chamber door, or unlatch it, with intent to steal, this will be burglary. (3) So where the prisoners went into the house of the cook at Serjeant's Inn, in Fleet street, to eat, and taking their opportunity, slipped up stairs, picked open the lock of a chamber door, broke open a chest, and stole plate, it was agreed that the picking open the lock of a chamber door, constituted burglary, though the breaking open the chest would not have done so. (4) And it will also amount to burglary if a servant in the night time open the chamber door of his master or mistress, whether latched or otherwise fastened, and enter for the purpose of committing murder or rape, or with any other felonious design; or if any other person, lodging in the same house, or in a public inn, open and enter another's room door, with such evil intent. (5) But it has been questioned whether, if a lodger in an inn should, in the night time, open the door of the chamber occupied by him, steal goods, and go away, the offence would be burglary; on the ground of his having a kind of special property and interest in his chamber, and the opening of his own chamber door being therefore no breaking in the inn-keeper's house. (6)

But he would be guilty of burglary, by breaking out, if, after stealing he not only opened his own chamber door but lifted a latch or turned a handle of the outward door so as to get completely out of the house. (7)

It is clear that the breaking open of a chest, or box, by a thief who has entered by means of an open door or window, is not a kind of breaking which will constitute burglary, because such articles are no part of the house. (8) But the question with respect to the breaking of cupboards, and other things of a like kind, when affixed to the free-hold, has been considered as more doubtful. Thus, at a meeting of the judges, upon a special verdict, to consider the point, whether breaking open the door of a cupboard let into the wall of the house