owner neither reserving nor occupying any part of it. One Choice rented of the landlord a shop and other rooms and one Ryan rented in the same house another shop and all the other rooms. The staircase and passage were in common, and the shops opened into the passage, which was enclosed and was part of the house. The prisoner having broken the passage door of Ryan's shop, was indicted for burglary in the dwelling-house of Ryan; and, upon the point being reserved, the judges had no doubt but that this was rightly described as the house of Ryan; and they held that the conviction was right. (1) It was held that where a house was let to A. and a warehouse under the same roof, and with an inner communication, to A. and B., the warehouse could not be described as the dwelling-house of A. The indictment was for a burglary in the dwelling-house of J. Richards; and the breaking was into the warehouses under the same roof with J. Richard's dwelling-house, and communicating with it internally; but the dwelling-house was let to J. Richards alone, and the warehouses were let to him and his brother, who lived elsewhere. Upon a case reserved, the judges held that the warehouses could not be deemed part of J. Richards' dwelling-house, as they were let to him and his brother, though by the same landlord, and that the conviction was therefore wrong. (2) A building may be divided so as to form several separate dwelling-houses by letting off parts, and leaving no internal communication between the parts so let and the remainder of the building. An indictment charged that a burglary was committed in a house forming the centre of a building with two wings, one of which wings was the dwelling-house of A., and the other consisted of the dwelling-houses of B and C. respectively. The centre consisted of three manufactories in one of which A., B., D. and other persons were jointly concerned, and of the other two, D. was the sole proprietor. C. was merely in D.'s employ. There was no internal communication between the centre building and the houses of A. and B. nor between it and the house of C., except a window in the house of C. which looked into a passage that ran the whole length of the centre building. One count in the indictment alleged the centre building to be the house of C.; but the judges held that the window merely was not such an internal communication that the centre building could be deemed a portion of C.'s house. (3) The Intent. There must be an intent, to commit some indictable offence; and if the intention of the entry be alleged or be proved by the evidence to have been only for the purpose of committing a trespass the offence will not be burglary. An indictment charged the prisoners with a burglary in the dwelling house of A. with intent to steal the goods of B. It appeared that B. who was an excise officer had seized uncustomed bags of tea entered in the name of C, and being in C's possession without a legal permit, and after seizing them B. had removed them to his lodgings at A's house. The prisoners and many other persons broke open A's house in the night, with intent to take this tea. It was not proved that C. was in company with them; but the witnesses said, that they supposed the tea to belong to C.; and supposed that the fact was committed either in company with him, or by his procurement. The jury, being directed to find as a fact with what intent the prisoners broke and entered the house, found that they intended to take the goods on behalf of C'., and, upon the point being reserved, all the judges were of opinion that the indictment was not supported; as, however outrageous the conduct of the prisoners was, in so endeavouring to get back A's goods, still there was no intention to steal. (4) Where the intent laid was to kill a horse, and the intent proved was merely to lame him, in order to prevent him from running a race, the varianc, was held fatal. (5) (1) R. v. Bailey, R. & M., C. C. 23. See R. v. Mayor of Eye, 9 Ad. & E. 670. (2) R. v. Jenkins, R. & R. 244: See R. v. Hancock, R. & R. 171. (3) R. v. Egginton, 2 Bos. & P. 508. (4) R. v. Knight and Roffey, 2 East, P. C. 510. (5) R. v. Dobbs. 2 East. P. C. 513. Where the intent laid was to steal, and the intent proved was to carry away the defendant's trunk containing money which he had formerly embezzled from his master, it was held that the offence proved did not amount to a burglary, for it was no felony in the defendant to remove the money. (1). Where the defendant was discovered in the chimney of a shop in the night time, and the jury found him guilty of breaking and entering with intent to steal, it was held that the evidence was sufficient to warrant the conviction. (2) Where it appeared in evidence, that, upon entering the house at three o'clock in the day the owner found that some person had removed certain goods to a different part of the house from that in which he had placed them, seemingly for the purpose of stealing them; and the defendants afterwards, on the same evening, having broken and entered the house, were taken in it, before they had attempted to move or carry away anything; the prosecutor having failed at the trial to prove the burglary, was proceeding to prove the defendants guilty of the antecedent stealing but the Court refused to receive the evidence, saying that the transactions were perfectly distinct. (3) If there be evidence of a theft but none of burglary and none showing the theft to have been committed in the dwelling-house, the defendant may be convicted of the simple theft, and if two or more are indicted, one may be found guilty of the burglary and the other of the theft only. (4) And a verdict may be rendered finding the defendant guilty of an attempt if the evidence warrant it.(5) Where a room-door was latched, and a person lifted the latch and entered the room, and concealed himself for the purpose of committing a theft there, which he afterwards effected; and two other persons were present with him when he lifted the latch, for the purpose of assisting him to enter, and screened him from observation, by opening an umbrella, it was held that those two were, in law, parties to the breaking and entering, and were answerable for the stealing which afterwards took place, though they were not near the spot when it was perpetrated. (6) Where the intent laid was to steal the goods of J. W. and it appeared in evidence that no goods of any person of the name of J. W. were in the house, but that the name of J. W. had been inserted in the indictment by mistake; the judges held the variance to be fatal, and the defendant was acquitted. (7) But where the indictment alleged the intent to be generally "the goods and chattels in the said dwelling-house then and there being" to steal, and charged the defendant with stealing the goods of A. therein, it was held to be satisfied by proof of a breaking into the house, with intent to steal the goods there generally, though the goods actually stolen did not belong to A. alone. (8) The best evidence of the intent is, that the defendant actually committed the offence alleged to have been intended by him; (9) but any other facts may be given in evidence from which the intent may be presumed. It may be inferred from the nature of the weapon or instrument, with which the defendant is found armed, the place in which he is found, his own declarations, or from any other circumstances. Where an indictment charges a breaking and entering, at night, with intent to commit an indictable offence, proof of the actual commission of an indictable (1) R. v. Dingley, 2 Leach, 840. c. (2) R. v. Brice, R. & R. 450. (3) R. v. Vandercomb & Abbot, 2 Leach 708. (4) R. v. Butterworth, R. & R. 520. (5) See article 711 post. offence will be sufficient and in fact the best evidence to establish the intent; but it is best to allege both the intent to commit and the actual commission of an indictable offence. (1) It should be observed also, that different intents may be stated in the indictment. Thus, where the first count of an indictment for burglary laid the fact to have been done with intent to steal the goods of a person, and the second count laid it with intent to murder him; it was objected upon a general verdict of guilty, that there were two several capital charges in the same indictment, tending to deprive the prisoner of the challenges to which he would have been entitled if there had been distinct indictments, and also tending to perplex him in his defence; but the indictment was holden good, on the ground that they were the same facts and evidence, only laid in different ways. (2) Although an indic'ment charging a breaking and entering, with intent to commit an indictable offence, will be supported by evidence that, on breaking and entering the defendant actually committed the indictable offence charged, it seems that where the indictment charges a breaking and entering and the actual commission of an indictable offence, but does not charge the intent, it will not be supported, if the evidence merely shew a breaking and entering with intent to commit and no actual commission of the offence. It was, therefore, decided in a case in which the point was fully considered that an acquittal upon an indictment for burglary, in breaking and entering a dwelling-house and stealing goods, could not be pleaded in bar to an indictment for burglary in the same dwelling-house, on the same night, with intent to steal, on the ground that the several offences described in the two indictments could not be said to be the same. The indictment charged the prisoners with burglariously breaking and entering the dwelling-house of M. Nevill and A. Nevill, with intent to steal their goods; and the prisoners pleaded a plea of autrefois acquit upon a former indictment, which charged them with burglariously breaking and entering the dwelling-house of M. Nevill and A. Nevill, and stealing goods of M. Nevill, goods of A. Nevill, and goods of one S. Gibbs. The plea concluded with averring the identity of the persons of the prisoners, and that the burglary was the same identical and individual burglary To this plea there was a demurrer, which was argued before all the judges of England; and their opinion was afterwards delivered by Mr. Justice Buller at the Old Bailey, June Session, 1796. The learned judge said, that it had been contended on behalf of the prisoners, that as the dwelling-house and the goods in relation to which the burglary was charged to have been committed were precisely the same both in the indictment for the burglary and stealing the goods, (on which they were acquitted), and in the indictment for the burglary with intent to steal the goods, (which was then depending), the offence charged in both was, in contemplation of law, the same offence, and that of course the acquittal on the former indictment was a bar to all further proceedings on the latter. He then proceeded, "It is quite clear, that at the time the felony was committed, there was only one act done, namely, the breaking the dwelling-house. But this fact alone will not decide this case, for it is necessary to the completion of burglary that there should not only be a breaking and entering, but the breaking and entering must be accompanied with a felony actually committed or intended to be committed. In the present case, therefore, evidence of the breaking and entering with intent to steal was rightly held not to be sufficient to support the indictment charging the prisoner with having broken and entered the house and stolen the goods stated in the first indictment." The learned judge,-after referring to several authorities on the subject of the defence of autrefois acquit,-continued; "These cases establish the principle, that unless the first indictment were such that the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. Now, to apply the principle to the present case: the first indictment was for burglari (1) 1 Hale, 549, 560; 2 East, P. C. 514; R. v. Furnival, R. & R. 445. (2) R. v. Thompson, 2 East, P. C. 515. ously breaking and entering the house and stealing the goods mentioned; but it appeared that the prisoners broke and entered the house with intent to steal, for, in fact, no larceny was committed; and therefore they could not be convicted on that indictment. But they have not been, tried for burglariously breaking and entering the house with intent to steal; which is the charge of the present indictment, and therefore their lives have never been in jeopardy for this offence. For this reason, the judges are all of opinion that the plea is bad; that there must be judgment for the prosecutor upon the demurrer: and that the prisoners must take their trials on the present indictment." The prisoners were accordingly tried and convicted. (1) It will be seen that the essentials of the crime of burglary, as defined and punished under article 410, are,-1, a breaking and entering a dwelling-house, by night, with intent, to commit an indictable offence therein; 2, a breaking out of a dwelling-house. by night, after committing an indictable offence therein; and 3, a breaking out of a dwelling-house, by night, after having entered it, by day or by night, with intent to commit an indictable offence therein. But article 410 does not expressly declare that it is burglary to break and enter a dwelling-house, by night, and commit an indictable offence therein. Quaere, would it, therefore, be sufficient in an indictment for burglary, under article 410 to allege a breaking and entering of a dwelling-house by night and the commission therein of an indictable offence, without also alleging an intent to commit it? And if in a trial for burglary the evidence shewed that when the defendant broke and entered the house he had no intention whatever to commit any indictable offence therein. would he, by afterwards committing an indictable offence therein, become guilty of burglary under article 410 ? The articles relating to house breaking (articles 411 and 412) expressly state that the offence is committed; 1, by breaking and entering a dwelling-house, by day, and committing an indictable offence therein; 2, by breaking out, of a dwelling house, by day, after having committed an indictable offence therein; and 3, by breaking and entering a dwelling-house, by day, with intent to commit an indictable offence therein. If, upon an indictment for burglary it be proved that the breaking and entering were in the night time he may be convicted of house breaking under article 412; (2) and if the breaking and entering be not proved the defendant may be convicted (under article 345, ante), of stealing in a dwelling-house, if the property stolen amount to $25, or, if though, less than that amount, he has by threats put any one in the house in bodily fear; and if the stealing do not come within the terms of article 345 the defendant may be convicted of simple theft. (See article 713, post.) 411. House-breaking. Every one is guilty of the indictable offence called house-breaking, and liable to fourteen years' imprisonment, who— (a.) breaks and enters any dwelling-house by day and commits any indictable offence therein; or (b) breaks out of any dwelling-house by day after having committed any indictable offence therein. R.S.C., c. 164, s. 40. 412. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, by day, breaks and enters any dwelling-house with intent to commit any indictable offence therein. R.S.C., c. 164, s. 42. See comments under article 410. (1) R. v. Vandercomb and Abbott, 2 Leach, 708; 2 East, P. C. 159. (2) R. v. Compton, 3 C. & P. 418. The breaking and entering must be proved in the same manner as in burglary, (1) except that it need not be proved to have been done in the nighttime; but if it be proved to have been done in the night time, so as to amount to burglary, it seems that the defendant may, notwithstanding, be convicted upon an indictment for burglary. (2) The proof of the stealing will be the same as in any other case of theft; and the least removal, as we have seen already, will be sufficient. For instance, where it appeared that the prisoner after breaking and entering the house, took two half sovereigns from a bureau, in one of the rooms, but, being immediately detected, threw them under the grate in that room, Parke, J., held that this was a sufficient asportation to constitute the offence of house-breaking and stealing therein. (3) If the prosecutor succeed in proving the theft, but fail in proving any of the other facts necessary to constitute the offence of house-breaking, the defendant may be convicted of simple theft; or if the prosecutor fail in proving the breaking and entry, and the goods be laid and proved to be of the value of twenty-five dollars, the defendant may be convicted of stealing in the dwellinghouse. A defendant may, if the evidence warrants it, be convicted of an attempt to commit the offence if the prosecutor fails to prove its actual commission. (See article 711, post.) 413. Breaking shop.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, either by day or night, breaks and enters and commits any indictable offence in a school-house, shop, warehouse or counting-house, or any building within the curtilage of a dwelling-house, but not so connected therewith as to form part of it under the provisions herein before contained. R.S.C., c. 164, s. 41. 414. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, either by day or night, breaks and enters any of the buildings mentioned in the last preceding section with intent to commit any indictable offence therein. R.S.C., c. 164, 8. 42. See comments under articles 410, 411 and 412, ante. The breaking and entering must be proved in the same way as upon an indictment for burglary, except that it is immaterial whether the breaking and entry be by night or by day. If the proof of the breaking and entry fail the defendant may be convicted of simple theft. A warehouse was, at one time, held to be such as factors or traders keep their goods in, for sale, and where customers go to view them, and not such as is used for the safe keeping of goods merely; (4) but this distinction is now exploded. (5) There is a dictum of Alderson, B. upon the repealed statute 7 & 8 G. 4, c. 29, s. 15, that a shop, to be within it, must be a shop for the sale of goods, and that a mere workshop (such as a carpenter's or blacksmith's shop, would not be sufficient. (6) but Lord Denman, C J. dis (1) 1 Hale, 526; Fost. 108. (2) See R. v. Pearce, R. & R. 174; R. v. Robinson, R. & R., 321. (3) R. v. Amier, 1 C. & P. 344. (4) R. v. Howard, Fost. 77, 78: See R. v. Godfrey, Leach 278. (5) See R. v. Hill, 2 M. & Rob. 458. (6) R. v. Sanders, 9 C. & P. 79. |