Walters, 1 Moo. 13. And where the dwelling-house of the prosecutor was in the centre of a space of about an acre of land, surrounded by a garden wall, the front wall of a factory, and the wall of the stable-yard, the whole being the property of the prosecutor who used the factory, partly for his own business and partly in a business in which he had a partner, and the factory opened into an open passage into which the outer door of the dwelling-house also opened, it was holden that the factory was properly described as the dwelling-house of the prosecutor: R. v. Hancock, R. & R. 170. But a building separated from the dwelling-house by a public thoroughfare cannot be deemed to be part of the dwelling-house: R. v. Westwood, R. & R. 495. So neither is a wall, gate or other fence, being part of the outward fence of the curtilage, and opening into no building but into the yard only, part of the dwelling-house: R. v. Bennett, R. & R. 289. Nor is the gate of an area, which opens into the area only, if there be a door or fastening to prevent persons from passing from the area into the house, although that door or other fastening may not be secured at that time: R. v. Davis, R. & R. 322.

Where the building broken into was in the fold-yard of the prosecutor's farm, to get to which from the house it. was necessary to pass through another yard called the pump-yard into which the back door of the house opened, the pump-yard being divided from the fold-yard by a wall four feet high in which there was a gate, and the fold-yard being bounded on all sides by the farm buildings, a wall from the house, a hedge and gates, it was held that the building was within the curtilage: R. v. Gilbert, 1 C. & K. 84. See R. v. Egginton, 2 Leach, 913.

Indictment.

situate

a certain building of one J. N... unlawfully did break and enter, the said building then being within the curtilage of the dwellinghouse of the said J. N. there situate, and by the said J. N. then and there occupied therewith, and there being then

and there no communication between the said building and the said dwelling-house, either immediate or by means of any covered and enclosed passage leading from the one to the other, with intent the goods and chattels of the said J. N. in the said building then being to steal, and that the said J. S. then and there, in the said building, one silver watch of the goods and chattels of the said J. N. did steal.

This count may be added to an indictment for burglary, house-breaking or stealing in a dwelling-house to the amount of twenty-five dollars, and should be added whenever it is doubtful whether the building is in strictness a dwellinghouse. If the evidence fail to prove the actual stealing, but the breaking, entry and intent to steal be proved, the prisoner may be convicted, under this indictment, of the offence described in s. 414, as this indictment alleges the intent as well as the act.

Under s. 711 a verdict of guilty of an attempt to commit the offence charged may be given upon an indictment on this section, if the evidence warrants it.

BREAKING SHOP, SCHOOL-HOUSE, ETC., WITH INTENT..

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, s. 42 (Amended). 24-25 V. c. 96,

s. 57 (Imp.).

See remarks under ss. 412 & 413, ante.

BEING FOUND IN DWELLING-HOUSE BY NIGHT.

415. Every one is guilty of an indictable offence and liable to seven years' imprisonment who unlawfully enters, or is in, any dwelling-house by night with intent to commit any indictable offence therein. R. S. C. c. 164, B. 39. 24-25 V. c. 96, s. 54 (Imp.).

Greaves says: "This clause is new and contains a great improvement of the law. It frequently happened on the trial of an indictment for burglary where no property had been stolen that the prisoner escaped altogether for want of sufficient proof of the house having been broken into, though there was no moral doubt that it had been so. This

clause will meet all such cases. It will also meet all cases where any door or window has been left open, and the prisoner has entered by it in the night. It is clear that if, on the trial of an indictment for burglary with intent to commit a felony, the proof of a breaking should fail, the prisoner might nevertheless be convicted of the offence. created by this clause for such an indictment contains everything that is required to constitute an offence under this clause, in addition to the allegation of the breaking, and the prisoner may be acquitted of the breaking and convicted of the entering with intent to commit felony, in the same way as on an indictment for burglary and stealing he may be acquitted of the breaking and convicted of the stealing. And this affords an additional reason why, in an indictment for burglary and committing a felony, there should always be introduced an averment of an intent to commit a felony, so that if the proof of the commission of the felony and of the breaking fail the prisoner may nevertheless be convicted of entering by night with intent to commit it."

Indictment.

that J. S., on

about the hour of eleven in the night of that same day, the dwelling of K. O., situate unlawfully did enter, with intent the goods and chattels of the said K. O., in the said dwellinghouse then being, to steal.

As to what is night, and what is a dwelling-house, in the interpretation of this clause the same rules as for burglary must be followed. Under s. 711 the jury may, if the evidence warrants it, convict of an attempt to commit the offence charged upon an indictment under this section.

BEING FOUND ARMED WITH INTENT.

416. Every one is guilty of an indictable offence and liable to seven years' imprisonment who is found

(a) armed with any dangerous or offensive weapon or instrument by day, with intent to break or enter into any dwelling-house, and to commit any indictable offence therein; or

(b) armed as aforesaid by night, with intent to break into any building and to commit any indictable offence therein. R. S. C. c. 164, s. 43 (Amended). 24-25 V. c. 96, s. 58 (Imp.).

"Offensive weapon" defined, s. 3.

The punishment was three years under the repealed clause.

The word "by day" is new. By day the offence is as to a dwelling-house only. By night it is as to any building: see form of indictment under next section.

BEING DISGUISED OR IN POSSESSION OF HOUSE-BREAKING INSTRUMENTS.

417. Every one is guilty of an indictable offence and liable to five years' imprisonment who is found

(a) having in his possession by night, without lawful excuse (the proof of which shall lie upon him) any instrument of housebreaking ; or

(6) having in his possession by day any such instrument with intent to commit any indictable offence; or

(c) having his face masked or blackened, or being otherwise disguised, by night, without lawful excuse (the proof whereof shall lie on him); or

(d) having his face masked or blackened, or being otherwise disguised, by day, with intent to commit any indictable offence. R. S. C. c. 164, s. 43

(Amended). 24-25 V. c. 100, s. 58 (Imp.).

"Having in possession," defined, s. 3.

The words in italics are new.

Sub-sections (b), (c), (d) are also new or extensions of the repealed statute.

"It is thought that being disguised by night affords sufficient prima facie evidence of a criminal intent."-Imp. Comm. Rep. The punishment was three years under the repealed clause.

Indictment under s. 416 for being found by night armed.that A. B. on

about the hour

was

of eleven of the night of the same day at found unlawfully armed with a certain dangerous and offensive weapon (or instrument), with intent to break and enter into a dwelling-house (or any other building) of C. D. there situate, and the goods and chattels in the said dwelling-house (or any other building), then being, unlawfully to steal.

It is not necessary to aver that the goods and chattels were the property of any particular person: R. v. Lawes, R. v. Clarke, 1 C. & K. 62, 421 ; R. v. Nicholas, 1 Cox, 218.

See, ante, s. 3, as to the interpretation of the word 'night."

In R. v. Jarrald, L. & C. 301, it was held, upon a case reserved, that an indictment under the repealed section, for being found by night armed with a dangerous and offensive weapon and instrument, with intent to break and enter into a building and commit a felony therein, must specify, as in burglary, the building to be broken into. Crompton, J., was of opinion that the particular felony intended must also be specified.

On this case Greaves, 2 Russ. 70, note g, says: "With all deference it is submitted that this decision is clearly erroneous. The ground on which Cockburn, C.J., rests the decision of the first point (as to a particular house to be specified, now s. 417) is answered by the second clause of the same section; for, under it, the mere possession, without lawful excuse, of any instrument of housebreaking in the night constitutes the offence without any intent to commit felony at all; and this offence is plainly one step further from the attempt to commit a felony than where the intent to commit some felony exists, though the particular felony is not yet fixed As to the rules of criminal pleading these seem, in this case, to have been misconceived. It is quite a mistake to suppose that these rules require the specification of particulars where it is impracticable to specify them. Wherever this is the case the rules allow general or other statements instead.. It cannot be doubted that this decision, instead of promoting the object of the Act in this respect, is substantially a repeal of it, for it is hardly conceivable that, in the majority of cases, it will be possible to prove an intent to commit any particular felony."