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case reserved, the judges all thought, that though the prosecutor had for that night a special interest in the bedchamber, yet it was merely for a particular purpose, viz. to sleep there that night as a travelling guest, and not as a regular lodger; that he had no certain and permanent interest in the room itself; but both the property and possession of the room remained in the landlord, who would be answerable civililer for any goods of his guest that were stolen in the room, even for the goods now in question, which he could not be unless that room were deemed to be in his possession; and that the landlord might go into the room when he pleased, and would not be a trespasser to his guest. Prosser's case, 2 East, P. C. 562.

Proof of the premises being a dwelling-house-occupation-partners.] Where one of several partners is the lessee of the premises where the business is carried on, and another partner occupies an apartment there and pays for his board and lodging, the latter, as already stated, will be considered as a lodger only. Parmenter's case, 1 Leach, 537. (n.) ante, p. 318. But where the house is the joint property of the firm, and one of the partners, and the persons employed in the trade, live there, it is properly described as the dwelling-house of the firm. Athea's case, 1 Moody, C. C. 329 (a).

*Proof of the premises being a dwelling-house-out-build- [ *326 ] ings, and curtilage.] It has been already stated, that the dwelling-house at common law not only included the premises actually used as such, but also such out-buildings, &c. as were within the curtilage or court-yard surrounding the house, and were consequently considered to be under the same protection. Ante, p. 311.

Great difficulty being frequently experienced in deciding what buildings came within this protection, and very nice distinctions having been taken on the subject, (see the cases collected, 2 East, P. C. 492; 2 Russell, 13,) to remedy this evil, it was enacted by the 7 & 8 Geo. 4, c. 29, s. 13, that "no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house for the purpose of burglary (or for any of the purposes, aforesaid,) unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage leading from the one to the other."

The following cases have been decided on this clause. The prosecutor's house consisted of two long rooms, another room used as a cellar, and washhouse on the ground-floor, and three bed-rooms up stairs. There was no internal communication between the washhouse and any of the other rooms of the house, the door of the washhouse opening into the back yard. All the buildings were under the same roof. The prisoner broke into the washhouse, and the question reserved for the opinion of the judges was, whether this was burglary. Seven of their Lordships thought that the washhouse was part of the dwelling-house, the remaining five thought it was not. Burrowes' case, 1 Moody, C. C. 274 (b).

In the above case the washhouse was under the same roof with the dwelling-house which distinguishes it from the following.

Behind the dwelling-house there was a pantry; to get to the pantry

(a) 2 Eng. C. C. 329. (b) Id. 274.

from the house it was necessary to pass through the kitchen into a passage; at the end of the passage there was a door, on the outside of which, on the left hand, was the door of the pantry. When the passagedoor was shut, the pantry-door was excluded, and open to the yard; but the roof or covering of the passage projected beyond the door of the passage, and reached as far as the pantry-door. There was no door communicating directly between the pantry and the house, and the two were not under the same roof. The roof of the pantry was a "tea-fall," and leaned against the wall of an inner pantry, in which there was a latchet window common to both, and which opened between them; but there was no door of communication. The inside pantry was under the same roof as the dwelling-house.

The prisoners entered the outer pantry by a window which looked towards the yard, having first cut away the hair cloth nailed to the window frame. Taunton, J., held that the outer pantry was not part of the dwelling-house within the above clause, and consequently that no burglary had been committed. Somerville's case, 2 Lew. C. C. 113. See also Turner's case, 6 C. and P. 407 (a).

[ *327] *Proof of the offence having been committed in the nighttime.] The prosecutor must prove that both the breaking and entering took place in the night time, but it is not necessary that both should have taken place on the same night. It is said by Lord Hale, that if thieves break a hole in the house one night, to the intent to enter another night, and commit a felony, through the hole they so made the night before, this seems to be burglary; for the breaking and entering were both noctanter, though not the same night, and it shall be supposed they broke and entered the night they entered, for the breaking makes not the burglary till the entry. Hale, P. C. 551. This point was decided in the following case: During the night of Friday, the side-door of the prosecutor's house, which opened into a public passage, had all the glass taken out by the prisoner, with intent to enter, and on the Sunday night the prisoner entered through the hole thus made. On a case reserved, the judges were of opinion that the offence amounted to burglary, the breaking and entering being both by night. And although a day elapsed between the breaking and entering, yet the breaking was originally with intent to enter. John Smith's case, Russ. and Ry. 417 (b). See also Jordan's case, ante, p. 308.

With regard to what shall be esteemed night, it is said by Lord Hale to have been anciently held that, after sunset, though daylight be not quite gone, or before sun-rising, is noctanter, to make a burglary (Dalt. c. 99; Cromp. 32, b.); but he adds, that the better opinion has been, that if the sun be set, yet if the countenance of a party can be reasonably discerned by the light of the sun, or crepusculum, it is not night. 1 Hale, P. C. 550; 3 Inst. 63. This rule, however, does not apply to moonlight, otherwise many burglaries might pass unpunished. 1 Hale, 551; 4 Bl. Com.

224.

Now it is enacted by the 7 Wm. 4 and 1 Vict. c. 86, s. 4, " that so far as the same is essential to the crime of burglary, the night shall be considered, and is hereby declared to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the succeeding day."

(a) Eng. Com. L. Rep. xxv. 460. (b) 1 Eng. C, C. 417.

"If the breaking of the house," says Lord Hale, "were done in the day-time, and the entering in the night, or the breaking in the night and the entering in the day, that will not be burglary; for both make the of fence, and both must be noctanter." 1 Hale, P. C. 551; citing Cromp. 33, a. ex. 8 Ed. 2. Upon this, the annotator of Lord Hale observes, that "the case cited does not fully prove the point it is brought for, the resolution being only, that if thieves enter in the night at a hole in the wall which was there before, it is no burglary; but it does not appear who made the hole." 1 Hale, P. C. 551, (n.) It is observed by Mr. Serjeant Russell, that it is elsewhere given as a reason by Lord Hale, why the breaking and entering, if both in the night, need not be both in the same night, that it shall be supposed that the thieves broke and entered in the night when they entered; for that the breaking makes not the burglary till the entry; and the learned writer adds, that "this reasoning, if applied to a breaking in the day-time and an entering *in the night, would [328] seem to refer the whole transaction to the entry, and make such breaking and entering a burglary." 2 Russell, 32, and see 2 East, P. C. 509. It would seem, however, to be carrying the presumption much farther than in the case put by Lord Hale; and it may well be doubted, whether, in such a case, the offence would be held to amount to burglary.

Proof of intent-to commit felony-felony at common law, or by statute.] The prosecutor must prove that the dwelling-house was broken and entered with intent to commit a felony therein. Evidence that a felony was actually committed, is evidence that the house was broken and entered with intent to commit that offence. 1 Hale, P. C. 560; 2 East, P. C. 514.

It was at one time doubted, whether it was not essential that the felony intended to be committed should be a felony at common law. 1 Hale, P. C. 562; Crompton, 32; Dalt. c. 151, s. 5. But it appears to be now settled, according to the modern authorities, that it makes no difference whether the offence intended be felony at common law, or by statute; and the reason given is, that whenever a statute makes an offence felony, it incidentally gives it all the properties of a felony at common law. Hawk. P. C. b. 1, c. 38, s. 38; Gray's case, Str. 481; 4 Bl. Com. 228; 2 East, P. C. 511; 2 Russ. 35.

If it appear that the intent of the party, in breaking and entering, was merely to commit a trespass, it is no burglary; as where the prisoner enters with intent to beat some person in the house, even though killing or murder may be the consequence, yet, if the primary intention was not to kill, it is still not burglary. 1 Hale, P. C. 561; 2 East, P. C. 509. Where a servant embezzled money intrusted to his care, ten guineas of which he deposited in his trunk, and quitted his master's service, but afterwards returned, broke and entered the house in the night, and took away the ten guineas, this was adjudged no burglary, for he did not enter to commit a felony, but a trespass only. Although it was the master's money in right, it was the servant's in possession, and the original act was no felony. Bingley's case, Hawk. P. C. b. 1, c. 38, s. 37, cited 2 Leach, 840, as Dingley's case, 2 East, P. C. 510, S. C. as Anon. Where goods had been seized as contraband by an excise-officer, and his house was entered in the night, and the goods taken away, upon an indictment for entering his house with intent to steal his goods, the jury found that the

prisoners broke and entered the house with intent to take the goods on behalf of the person who had smuggled them; and upon a case reserved, all the judges were of opinion that the indictment was not supported, there being no intent to steal, however outrageous the conduct of the prisoners was in thus endeavoring to get back the goods. Knight and Roffey's case, 2 East, P. C. 510. If the indictment had been for breaking and entering the house, with intent feloniously to rescue goods seized, that being made felony by statute 19 Geo. 2, c. 34, the chief baron and [*329] some of the other judges held it would have been burglary. *But even in that case, some evidence must be given, on the part of the prosecutor, to show that the goods were uncustomed, in order to throw the proof upon the prisoners that the duty was paid; but their being found in oilcases, or in great quantities in an unentered place would have been sufficient for this purpose. 2 East, P. C. 510. The prisoner was indicted for breaking, &c. with intent to kill and destroy a gelding there being. It appeared that the prisoner, in order to prevent the horse from running a race, cut the sinews of his fore-legs, from which he died. Pratt, C. J., directed an acquittal, the intent being not to commit felony by killing and destroying the horse, but a trespass only to prevent its running; and therefore it was no burglary. But the prisoner was afterwards indicted for killing the horse, and capitally convicted. Dobb's case, 2 East, P. C. 513. Two poachers went to the house of a game-keeper, who had taken a dog from them, and believing him to be out of the way, broke the door and entered; being indicted for this as a burglary, it appearing that their intention was to rescue the dog, and not to commit a felony, Vaughan, B., directed an acquittal. Anon. Matth. Dig. C. L. 48. See Holloway's case, 5 C. and P. 524 (a).

Proof of the intent—variance in the statement of.] The intent must be proved as laid. Thus, if it be laid with intent to commit one sort of felony, and it be proved that it was with intent to commit another, it is a fatal variance. 2 East, P. C. 514. Where the prisoner was indicted for burglary and stealing goods, and it appeared that there were no goods stolen, but only an intent to steal, it was held by Holt, C. J., that this ought to have been so laid, and he directed an acquittal. Vandercomb's case, 2 East, P. C. 514. The property in the goods, which it is alleged were intended to be stolen, must be correctly laid, and a variance will be fatal. Jenk's case, 2 East, P. C. 514. It seems sufficient in all cases where a felony has been actually committed, to allege the commission without any intent; 1 Hale, P. Č. 560; 2 East, P. C. 514; and in such case no evidence, except that of the committing of the offence, will be required to show the intention. It is a general rule that a man who commits one sort of felony, in tempting to commit another, cannot excuse himself on the ground that he did not intend the commission of that particular offence. Yet this, it seems, must be confined to cases where the offence intended is in itself a felony. 2 East, P. C. 514, 515.

The intent of the parties will be gathered from all the circumstances of the case. Three persons attacked a house. They broke a window in front and at the back. They put a crow-bar and knife through a window, but the owner resisting them, they went away. Being indicted for burglary with intent to commit a larceny, it was contended that there was

(a) Eng. Com. L. Rep. xxiv. 438.

no evidence of the intent; but Park, J., said, that it was for the jury to say, whether the prisoners went with the intent alleged or not; that persons do not in general go to houses to commit trespasses in the middle of the night; that it was matter of observation that they had [*330 ] the opportunity, but did not commit the larceny, and he left it to the jury to say, whether, from all the circumstances, they could infer that or any other intent. Anon. 1 Lewin, C. C. 37.

Minor offence-larceny, &c.] If the prosecutor fail in his attempt to prove the breaking and entry of the dwelling-house, but the indictment charges the prisoner with a larceny committed there, he may be convicted of the larceny, simple or compound, according to the circumstances of the case. Thus, where the prisoner was charged with breaking and entering the house of the prosecutor, and stealing 60l. therein, and the jury found that he was not guilty of breaking and entering the house in the night, but that he was guilty of stealing the money in the dwelling-house; upon a case reserved, it was resolved by the judges after some doubt, that by this finding the prisoner was ousted of his clergy, for the indictment contained every charge necessary upon the 12 Ann. c. 7, viz. a stealing in a dwelling-house to the amount of 40s., and the jury had found him guilty of that charge. Withal's case, 2 East, P. C. 517; 1 Leach, 88. In a similar case the verdict given by the jury was "not guilty of burglary, but guilty of stealing above the value of 40s. in the dwelling-house," and the entry made by the officer was in the same words. On a case reserved, the judges held the finding sufficient to warrant a capital judgment. They agreed, that if the officer were to draw up the verdict in form, he must do so according to the plain sense and meaning of the jury, which admitted of no doubt; and that the minute was only for the future direction of the officer, and to show that the jury found the prisoner guilty of the larceny only. But many of the judges said, that when it occurred to them. they should direct the verdict to be entered, "not guilty of the breaking and entering in the night, but guilty of the stealing," &c., as that was more distinct and correct. It appeared, upon inquiry, to be the constant course on every circuit in England, upon an indictment for murder, where the party was only convicted of manslaughter, to enter the verdict guilty of murder, but guilty of manslaughter," or, "not guilty of murder, but guilty of feloniously killing and slaying," and yet murder includes the killing. The judges added, that the whole verdict must be taken together, and that the jury must not be made to say, that the prisoner is not guilty generally, where they find him expressly guilty of part of the charge, or to appear to speak contradictory, by means of the officer's using a technical term, when the verdict is sensible and intelligible in itself. Hungerford's case, 2 East, P. C. 518.

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It was formerly thought that if several were jointly indicted for burglary and larceny, and no breaking and entering were proved against one, he could not be convicted of larceny and the others of burglary. Turner's case, 1 Sid. 171; 2 East, P. C. 519. But in a later case, where one prisoner pleaded guilty, and the other two were found guilty of the larceny only, the judges, on the case reserved *differed in opinion. [ *331 ] Seven of them resolved, that judgment should be entered against all the three prisoners, against him who had pleaded guilty for the burglary and capital larceny, and against the other two for the capital larceny.

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