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“ 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 offence, and both must be noctanter." i 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.” i Hale, P. C. 551, (n.)
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 ainount 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 thạt 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. i 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. i 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 en: tered 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. C. 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. 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 not 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.
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. Burrough, J., and Hullock, B., were of a different opinion, but Hullock thought that if a nolle prosequi were entered as to the burglary, judgment might be given against all the three for the capital larceny. The seven judges thought that there might be cases in which, upon a joint larceny by several, the offence of one might be aggravated by burglary in him alone, because he might have broken the house in the night, in the absence and without the knowledge of the others, in order to come afterwards and effect the larceny, and the others might have joined in the larceny without knowing of the previous breaking. Butterworth's case, Russ. and Ry. 520 (a).
Although a prisoner may be convicted of the larceny only, yet if the larceny was committed on a previous day, and not on the day of the supposed burglary, he cannot be convicted of such larceny. This point having been reserved for the opinion of the judges, they said the indictment charges the prisoners with burglariously breaking and entering the house and stealing the goods, and inost unquestionably that charge may be modified by showing that they stole the goods without breaking open the house ; but the charge now proposed to be introduced, goes to connect the prisoners with an antecedent felony committed before three o'clock, at which time it is clear, they had not entered the house. Having tried without effect to convict them of breaking and entering the house, and stealing the goods, you must admit that they neither broke the house nor stole the goods on the day mentioned in the indictment; but to introduce the proposed charge, it is said, that they stole the goods on a former day, and that their being found in the house is evidence of it. But this is surely a distinct transaction; and it might as well be proposed to prove any felony which these prisoners committed in this house seven years ago, as the present.” Vandercomb's case, 2 Leach, 708.
Proof of breaking out of a dwelling-house. It was formerly doubted whether, where a man entered a dwelling-house in the night (without breaking) with intent to comunit felony, and afterwards broke out of the same, or being there in the night committed a felony, and broke out, this anttnted to burglary or not (1). Hale, P. C. 554; Clarke's case, 2 East, P. C. 490 ; Lord Bac. Elem. 65; 2 Russ. 7. It was, however, declared to be such by 12 Anne, c. 7, and that act being now repealed, it is declared by 7 and 8 Geo. 4, c. 29, s. 11, that if any person shall enter the dwelling-house of another with intent to commit a felony, or being in such dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night time, such person shall be deemed guilty of burglary.
An indiciment which stated in one count, that the prisoner “did break [ *332 ] to get out," and in another that he " did break and get out,” *was held by Vaughan and Patteson, JJ. insufficient since the last mentioned statute, which uses the words“ break out.” Crompton's case, 7 C. and P. 139 (b).
In Lawrence's case, 4 C. and P. 231 (c), Bolland, B., held that escaping from a house by lifting up a trap-door over a cellar, which had no fast
(1) That it does, see Case of Sands and al., 6 Rogers’ Rec. 1.
ening, but was kept down by its own weight, was not a sufficient breaking out of the house. This, however, has been held a sufficient breaking into a house, see ante, p. 304.
Where a lodger in the prosecutor's house got up in the night and unbolted the back door and went away with a jacket of the prosecutor's which he had stolen ; he was convicted of burglary. Wheeldon's case, 8 C. and P. 447 (a).
Proof upon plea of autrefois acquit.] In considering the evidence upon the plea of autrefois acquit in burglary, some difficulty occurs from the complex nature of that offence, and from some contrariety in the decisions. The correct rule appears to be, that an acquittal upon an indictment for burglary in breaking and entering and stealing goods, cannot be pleaded in bar to an indictment for burglary in the same dwelling-house, and on the same night with intent to steal, on the ground that the several offences described in the two indictments cannot be said to be the same. This rule was established in Vandercomb's case, where Buller, J. delivered the resolution of the judges, and concluded in these words :-" These cases establish the principle, that unless the first indictment were such as 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 these principles to the present case.
The first indictment was for burglariously breaking and entering the house of Miss Neville, 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 of Miss Neville with intent to steal, which is the charge in the present indictment, and therefore they have never been in jeopardy for this offence. For this reason the judges are all of opinion that the plea is bad, and that the prisoners must take their trials upon the present indictment.” Vandercomb's case, 2 Leach, 716 ; 2 East, P. C. 519, overruling Turner's case, Kel. 30, and Jones and Bever's case, Id. 52.
Offences with regard to cattle--stealing horses, cows, sheep, &c.] The stealing of domestic animals, as horses, cows, sheep, &c. was larceny
(a) Eng. Com. L. Rep. xxxiv. 617.