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night-time, with an intent to commit felony there. This act is now repealed, but the eleventh section of the 7 & 8 Geo. 4, c. 29, is in nearly the same terms, with the exception of the words in italics. It is to be observed that, in the present enactment, the word mansion (which formerly comprehended outhouses if parcel of the messuage) is omit ted; the consequence of this omission, and of the provisions contained in the 13th section, is, that no building but a dwelling-house, or a building connected therewith, can be the subject of burglary, either by virtue of this statute or at common law. In an indictment for burglary, either at common law or upon this statute, it is necessary to lay the crime to have been committed in the night, and at about such and such an hour, though the evidence need not strictly correspond with the latter allegation. An indictment, however, making no mention of the hour will be insufficient for burglary, though it will hold for the larceny: Waddington's case, 2 E. P. C. 513. The parish must be stated according to the truth, and any variance in that respect will be fatal: 2 Star. Cr. Pl. 415. The house must be described as the dwelling-house of that person who has the independent and exclusive occupation of it, and usually sleeps there. Where a servant occupies a house belonging to his master, it is sometimes difficult to determine whether he occupies it independently, or only as servant, and for the benefit of his master. In a case where a servant resided in a cottage of his master's, in consequence of an agreement entered into at the commencement of the service, and paid no rent, but an abatement was made in his wages in respect of the occupation, the judges held (dubitante Buller,J.) that this was no more than a licence to

the servant to lodge in the cottage, and not a letting of it to him: Brown's case, 2 E. P. C. 501. But see, contra, R. v. Jobling, R. & R. 525; R. v. Margetts, 2 Leach, 930. So, where a burglary was committed in a banker's shop, in which no person slept, but to which there was a communication from the upper rooms of the house, and the upper rooms were inhabited by J. S., the cooper employed by the prosecutors in their brewing concern, who was paid half a guinea a week, and had firing and lodging for himself and family, and whose contract with the prosecutors as to the lodging was not, in general terms, that he should be provided with lodging, but that he should be permitted to bave the upper rooms for the accommodation of himself and family, the court held clearly, that J. S. occupied only as servant, and that an indictment charging the burglary to have been committed in the duelling-house of the bankers was good: R. v. Stock, 2 Leach, 1015; 2 Taun. 339. On the other hand, where a warehouseman, with his family, lived in a house of his master's, for which, and for coals, he paid his master a rent of 11. a year, the master taking 9l. a year less than he could have got from an ordinary tenant, in consideration of the security afforded to the premises by the measure, the court held that the warehouseman occupied in the character of a tenant, and not of a servant; that the master might have distrained for bis rent, and could not arbitrarily have removed him; and, therefore, that an indictment for burglary, laying the house to be the dwelling-house of the master, was bad: R. v. Jarvis, R. & M. 7. So, where A. was lessee of tolls under the trustees of a turnpikeroad, and employed B. to collect them, with an agreement that B. was to pay over the tolls to A.

monthly, and was to be paid for his labour by the week, and to have the privilege of living in the tollhouse as collector, the toll-house having been erected by the trustees as and for the dwelling-house of the person who might be employed to collect tolls at that gate, an indictment describing this as the dwellinghouse of B. was held good, for B. had the exclusive possession, and it was unconnected with any premises of A.'s, and B. did not appear to have any interest in it: R. v. Camfield, R. & M. 42. If a burglary be committed in the house of a married woman living apart from her husband, it must be described as the dwelling-house of her husband: R. v. Farre, Kel. 43; R. v. French, R. & R. 491; R. v. Wilford, R. & R. 517. When a burglary is committed in the lodgings or chambers of servants of a corporation, the house must be described as the dwelling-house of the corporation: R. v. Picket, 2 E. P. C. 501; R. v. Maynard, id. Where several persons live under the same roof, but occupy distinct apartmeuts, and enter those apartments by separate outer doors, the part occupied by each person is considered as a separate dwelling house, and may be laid in the indictment accordingly; and it is of no consequence that one of the persons living under the roof is the landlord of the others. But, supposing the same persons, including the landlord, to be obliged to enter by one common outer door, in this case, though all the other circumstances just mentioned should remain the same, yet will the several interests of the tenants, as far as burglary is concerned, merge in that of the landlord, and the house should be laid in the indictment as his dwelling-house: R. v. Rogers, 1 Leach, 90, and the cases cited in the note, 2 E. P. C. 503; R. v. Bailey, R. & M. 23.

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If the indictment be at common law, it must allege that the prisoner feloniously and burglariously did break and enter, with intent, &c. (stating the felony intended to be committed). It may then allege, what is usually the case, that the felony was committed; and this, it is said, is the only instance in which two distinct felonies can be laid in the same count of an indictment : Archb. 27. It seems that an indictment will be sufficient which charges only the breaking, entering, and subsequent felony, without charging expressly the intent to commit the felony; because the felony, which is sufficient evidence of the intent, being laid, the intent itself is virtually laid: 1 H. P. C. 559; 2 E. P. C. 512; R. v. Furnival, R. & R. 445. But it is, at least, safer to lay the intent; or, in this case, if proof of the felony fail, no other evidence can be adduced to prove the intent, it not being specifically laid in the indictment. In laying the subsequent felony, it is usual to charge that it was done feloniously and burglariously, though, perhaps, the word burglariously, as applied to the subsequent felony, is superfluous. If the indictment be upon this statute, it may state that the prisoner feloniously and burglariously did enter, with intent, &c. (stating the felony intended to be committed). It may then state that he, then and there, in the said dwelling-house, committed the felony, and so being then and there in the said dwellinghouse, and having committed the said felony, afterwards (stating the hour, &c.) feloniously and burgla riously did break out of the said dwelling-house, against the form, &c.: see 2 Star. Cr. Pl. If no felony be actually committed, the statement of it may be left out, and, instead of the words "and having committed the said felony," the words "with the intent aforesaid,"

may be used: See Archb. P. A. 41. With respect to the indictment, it may be observed, lastly, that the same act of burglary may be laid with different intents: thus, in one count it may be laid with intent to steal, and in another with intent to kill and murder: R. v. Thompson, 2 P. P. C. 515.

To proceed to a few observations on the crime of burglary in general. Burglary, at the common law, is a breaking and entering the mansionhouse of another, in the night, with intent to commit some felony within the same, whether such intent be executed or not: 3 Inst. 63; 1 Haw. P. C. 17, s.1; 2 E. P. C. 484. The principal points of this definition will be considered in their order. 1. A breaking. There must be some breaking; for if a man leave his door or window open and a thief enter and take away the goods, 2 E. P. C. 485; or if there be an aperture in a cellar-window to admit light, through which a thief enters in the night, it is not burglary: R. v. Lewis, 2 C. & P. 628. An actual breaking may consist in very trifling circumstances: thus, the breaking a window, taking a piece of glass out by drawing or bending the nails or other fastening, the drawing a latch where the door is not otherwise fastened, pick ing a lock with a false key, putting back the lock of a door or fastening of a window with an instrument, turning the key where the door is locked on the inside, or unloosing any other fastening which the owner has provided, are all instances of a breaking: 2 E. P.C.487. Opening a sash window only held down by the weight of the pullies, R. v. Harrison, R. & R. 451; lifting a doorflap of a mill not otherwise fastened than by its own weight, have been held acts of breaking: Brown's case, ib. But see, contra, R. v. Callam, R. & R. 157. It seems that gene

rally the breaking or removing of any part of the dwelling-house which is closed or fastened as well as circumstances will allow, is a breaking; and even an entry by the chimney of a dwelling-house will be a burglarious breaking: R. v. Brice, R.&. R. 450. Though a thief enter by an outer door or window which is open, yet if he turn the key of, or unlatch a chamber door, this is a breaking, R. v. Johnson, 2 E. P. C. 488. And a servant in the house may by opening a chamber door make a breaking for the purpose of burglary: ib. and see Kel. 67; R. v. Gray, 1 Str. 481. The breaking may also be constructive. Thus, gaining admission under pretence of business, Le Mott's case, 2 Haw. P. C. c. 17, s. 8; taking lodgings with a felonious intent and robbing the landlord, 2 E. P. C. 485; bribing a servant to show a mansion-house, and then robbing it, Ann Hawkins's case, ib.; opening the door to a burglar and allowing him to pillage the house and to escape, Cornwall's case, 2 E. P. C. 486, are instances of constructive breaking. But if A. enter into the house of B. by night, and break open a chest and take away goods without breaking open an inner door, this is no burglary, because the chest is no part of the house. Qu. as to a cupboard or counter, 1 H. P. C. 555.

2. An entry. It is deemed an entry when the thief breaks the house, and his body or any part thereof, as his foot, or his arm, or even his finger, is within any part of the house; or when he puts a gun into a window which he has broken, or into a hole of the house which he has made, with intent to murder; or a hook or other engine, with intent to steal: 3 Inst. 64; R.v. Roberts, 2 E. P. C. 487; R. v. Buyley, R. & R. 311; R. v. Davis, R. & R. 499.

3. The mansion-house of another.--

This must now be read, the dwelling-house of another. See ante. Any house, shop, or room, in which a person, or his family, or his servants, dwell, is a dwelling-house for the purposes of burglary. But, though burglary may be equally committed if the owner and his family, or servants, be absent for a night or more, 1 H. P. C. 556, yet

the mere casual use of a tenement as a lodging, or the use of it upon some particular occasions only, will not constitute it a dwelling-house for the purpose of burglary. Thus, if servants be placed to sleep in a building to guard particular goods for a limited time, this kind of abidance will not make the building a dwelling-house, R. v. Brown, and R. v. Smith, 2 E. P. C. 497. Nor can burglary be committed in a house in which the owner has not yet begun to reside, either by himself or his servants: R. v. Fuller, 1 Leach, 186; in notis R. v. Harris, 2 Leach, 701; nor in a house in which the owner takes his meals, but in which neither he nor his family sleep, R. v. Martin, R. & R. 108.

4. In the night. It is not night for the purpose of burglary, if the countenance of a man can be reasonably discerned by the crepusculum:

H. P. C. 550. The breaking and entering must both be in the night, but not necessarily in the same night: id. 551.

5. With intent to commit some felony, &c.-If the intention of the entry be either laid in the indictment, or appear upon the evidence, to be only to commit some trespass, as to beat any person in the house, it will not be burglary; and this, although killing or murder be the consequence of such beating. For the murder, though resulting from a felonious intent at the time of the assault, is not conclusive, though very strong evidence of a felonious intent at the time of the breaking and entering: See 2 E. P. C. 509. It is immate

rial whether the felony intended to be committed is a felony at common law or by statute: 1 Haw. P. C. c. 17, s. 38. But the felony must be laid correctly, and any variance in the evidence respecting it will be fatal: 1 H. P. C. 561 ; R. v. Dobbs, 2 E. P. C. 513.

The mode of proving the offence will, as far as is permitted by the nature of the circumstances, be the same, whether the burglary be at common law, or under the statute.

It may be observed, lastly, that if upon an indictment for burglary, at common law, the jury find the prisoner not guilty of the burglary, but guilty of the subsequent felony, then, if the felony be such as was ousted of clergy, before the 7 & 8 Geo. 4, c. 28, s. 7, he may receive judgment of death. See R. v. Withal & Overend, 2 E. P. C. 517.

The TWELFTH SECTION of this statute comprises the crime of housebreaking. The proof of breaking and entry will be similar to that in burglary. It may be observed, that this section says nothing as to the intent. According to Lord Hale, the breaking of a house in the day, with intent to steal or commit felony, any person being in the house, and put in fear, though nothing were actually taken, was, by virtue of 1 Ed. 6, c. 12, felony without clergy: 1 H. P. C. 548. But as the 1 Ed. 6, c. 12, is now repealed, the offence just mentioned does not seem at this day to amount to felony. It is observed, in a modern work, that if it turn out in evidence, that the breaking and entry were in the night-time, although this would be burglary, yet it should seem, that the prisoner may, notwithstanding, be convicted on an indictment for housebreaking: Archb. P. A. 44, citing R. v. Pearce, R. & R. 174, and R. v. Robinson, ib. 321. If the evidence fail, as to the breaking and entry, the prisoner may be convicted of the larceny.

It has been holden, that an indictment for stealing in a dwellinghouse, need not aver the offence to have been committed "in the dwelling-house of W. T. there situate," and that the house shall be taken to be situate at the place named in the indictment, by way of venue: R. v. Napper, R. & M. 44. To bring a case within the meaning of the statute, as it regards stealing in a dwelling-house, it is necessary that the goods should be under the protection of the house. But it is not necessary that the goods should belong to the owner of the house. Therefore, where a man who lodged in the house of another, having met with an acquaintance at a public-house, brought him home to sleep at his lodgings, and, in the night-time, stole his guest's watch, the case was held to be within the statute: R. v. Taylor, R. & R. 418. Where property was left by mistake at a house, and delivered to the occupier under the supposition that it was for one of the persons in the house, it was held to be sufficiently under the protection of the house to make the stealing it (supposing it to be of 40s. value, under the statute of Anne) by a lodger, under pretence that it was his, a capital offence, R. v. Carroll, R. & M. 88. The same might be held under the present

statute; and it is apprehended that larceny by a man, in his own house, to the amount of 5l., would now be capital, the reasons for the contrary opinion no longer existing: see R. v. Thompson, 1 Leach, 398; R. v. Gould, ib. 217.

Upon an indictment under the FOURTEENTH SECTION of this statute, the chief point to be considered is, what shall be deemed to be within the curtilage. A curtilage is a garden, yard, field, or piece of void ground, lying near, and belonging to, the messuage. Termes de la Ley. It should seem that any building which might, before this statute, have been the subject of burglary by reason of its being within the same curtilage, may now be comprehended in an indictment upon this section: see 2 E. P. C. 492; R. v. Clayburn, R. & R. 360; R. v. Hancock, id. 170; R. v. Lithgo, id. 357. It is absolutely necessary, in an indictment on this section, to aver that the building was within the curtilage of the dwelling-house of the prosecutor, and that it was occupied therewith by the prosecutor; but qu. whether it be necessary to negative the fact of its being a building in which burglary might be committed, see R. v. Robinson, R. & R. 321.

BURNING.

(See also tit. "Arson.")

7 & 8 Geo. 4, c. 30.

V. Be it enacted, that if any person shall unlawfully Setting fire and maliciously set fire to any mine of coal, or cannal coal, to a coalevery such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon.

mine.

IX. And be it enacted, that if any person shall unlaw- Setting fire fully and maliciously set fire to, or in any wise destroy, to, or destroying a any ship or vessel, whether the same be complete or in an ship.

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