Where the sash of a window was partly open, but not so much so as to admit the body of a person, and the prisoner raised it so as to admit a person, upon an indictment for house-breaking, this was held not to amount to a breaking. Henry Smith's case, 1 Moody, C. C. 178 (a), ante, p. 304. See also Robinson's case, Id. 327 (b); ante, p.304. Where the entry was effected through a hole, which had been left in the roof, for the purpose of light, Bosanquet, J., held, that it was not sufficient to constitute a breaking of the house. Sprigg's case, 1 Moody and Rob. 357, ante, p. 305.

Proof of the premises being a dwelling-house.] Whatever building is, in contemplation of law, a dwelling-house, in which burglary may be committed, is a dwelling-house also, so far as respects the offence of house-breaking. 2 Russell, 48. A chamber in an inn of court, was held to be a dwelling-house within the repealed statute 39 Eliz. c. 15. Evans's case, Cro. Car. 473.

With regard to out-buildings, the repealed statute above-mentioned contained the words "dwelling-house or houses, or any part thereof, or any out-house or out-houses belonging and used to and with any dwellinghouse." The auxiliary statute 3 & 4 W. & M. c. 9, varied the words, using "dwelling-house, shop, or warehouse thereunto belonging, or therewith used." Both these statutes are now repealed, and the 7 and 8 Geo. 4, c. 29, uses only the term "dwelling-house." Such buildings, therefore, as, at common law, were considered part of the dwelling-house, (as to which, vide ante, p. 311,) come within the protection of the statute, and buildings situated within the curtilage, must appear to be within the provisions of 7 and 8 Geo. 4, c. 29, s. 13, ante, p. 326.

Proof of the larceny.] The larceny must be proved, as in other cases, with this addition, that it must be shown to have taken place in the house. The least removal of the goods from the place where the offender found them, though they be not carried off out of the house, is within the act, as in other larcenies, for the statute does not create a new felony, but only alters the punishment of a particular species of larceny. Simpson's case, 1 Hale, P. C. 527; Kel. 31, 2 East, P. C. 639. See Amier's case, 6 C. and P. 344 (c).

STEALING IN A DWELLING-HOUSE TO THE AMOUNT OF FIVE POUNDS.

Statutes 7 & 8 Geo. 4, c. 29, and 7 Wm. 4 and 1 Vict. c. 90.] This offence, so far as it extended to the sum of 40s., was provided against by [*386] the statute 12 Anne, c. 7, (now repealed). The sum *being raised to 5l., the offence was made a capital felony by 7 & 8 Geo. 4, c. 29.

By the 12th section of that statute, it is enacted, that if any person shall steal in any dwelling-house any chattel, money, or valuable security, to the value in the whole of 5l., or more, every such offender, being convicted thereof, [shall suffer death as a felon.]

By the 2 & 3 Wm. 4, c. 62, the capital punishment was repealed, and

(a) 2 Eng. C. C. 178. (b) 1 Ibid. 327. (c) Eng. Com. L. Rep. xxv. 431.

transportation for life substituted; and by the 3 & 4 Wm. 4, c. 44, s. 3, the offender might be imprisoned and kept to hard labor, or confined in the Penitentiary before transportation; ante, p. 384.

Now by the 7 Wm. 4 and 1 Vict. c. 90, s. 1, so much of the two lastmentioned acts as relates to the punishment of persons convicted of offences, for which they are liable under the 2 and 3 Wm. 4, c. 62, to be transported for life, and so much of the 3 and 4 Wm. 4, c. 44, as relates to the punishment of any person convicted of the offence of breaking and entering any dwelling-house, and stealing therein, as in that act mentioned is repealed, and it is enacted, that every person convicted of any of such offences shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years.

For s. 3 of the above act, authorising the court, in cases of imprisonment, to award hard labor and solitary confinement, see ante, p. 384.

Principals in the second degree, and accessaries before the fact, áre subject to the same punishment under the last-mentioned statute, as principals in the first degree. Accessaries after the fact, seem still punishable, (but see post, p. 391,) under 7 and 8 Geo. 4, c. 29, ss. 4 and 61, and the 7 Wm. 4 and 1 Vict. c. 90, s. 5, see ante, p. 333.

To support an indictment for this offence, the prosecutor must prove1, the stealing; 2, that the goods, &c. stolen, were of the value of 51. or more; and 3, that they were stolen in a dwelling-house.

Proof of the stealing of the goods-what goods.] It is not all goods of the value of 5l. or more, which may happen to be within the house, the stealing of which will come within the statute. A distinction is taken between goods which are, as it has been termed, under the protection of the house, and those which are not. Therefore, where goods are feloniously obtained from the person, they are not considered to be goods within the protection of the house, as where the occupier of the house gave a bank note to the prisoner to get changed, who thereupon stole it, the judges, upon a case reserved, were of opinion, that this was not a capital offence within the 12 Anne, c. 7. Campbell's case, 2 Leach, 564, 2 East, P. C. 644. So where the prisoner obtained a sum of money from the prosecutor, in the dwelling-house of the latter, by ring-dropping, this also was held not to be within the statute. The judges were of opinion, that to bring a case within the statute, the property must be under the protection of the house, deposited there for safe custody, as the furniture, money, plate, &c. kept in the house, and not things immediately *un- [ *387 ] der the eye or personal care of some one who happens to be in the house. Owen's case, 2 East, P. C. 645, 2 Leach, 572. The same point was ruled in subsequent cases. Castledine's case, Watson's case, Id. 674.

For the cases where goods have been held to be within the protection of the house, see post, p. 388.

Proof of the value of the goods stolen.] It must appear not only that the goods stolen were of the value of 51., but likewise that goods to that value were stolen upon one occasion, for a number of distinct larcenies cannot be added together to constitute a compound statutable larceny. Where it appeared that the prisoner had purloined his master's property to

a very considerable amount, but it was not shown that he had ever taken to the amount of 40s. at any one particular time, upon an indictment under the 12 Anne, c. 7, the Court held that the property stolen must not only be in the whole of such a value as the law requires to constitute a capital offence, but that it must be stolen to that amount at one and the same time; that a number of distinct petty larcenies could not be combined so as to constitute grand larceny, nor could any distinct number of grand larcenies be added together, so as to constitute a capital offence. Petrie's case, 1 Leach, 295. And the same was ruled by Ashurst, J., in a subsequent case. Farley's case, 2 East, P. C. 740. But it may vary the consideration, if the property of several persons lying together in one bundle or chest, or even in one house, be stolen together, at one time; for there the value of all may be put together, so as to make it grand larceny, or to bring it within a statute which aggravates the punishment, for it is one entire felony. 2 East, P. C. 740. And where the property was stolen at one time to the value of 40s., and a part of it only, not amounting to 40s. was found upon the prisoner, the Court left it to the jury to say, whether the prisoner had not stolen the remainder of the property, which the jury accordingly found. Hamilton's case, 1 Leach, 348, 2 Russell, 53.

Where the prisoner, who was in the prosecutor's service, stole a quantity of lace in several pieces, which were not separately worth 5l., and brought them all out of his master's house at one time, Bolland, J., held that the offence was made out, although it was suggested that the prisoner might have stolen the lace a piece at a time. Jones' case, 4 C. and P. 217 (a). The learned baron mentioned a case tried before Garrow, B., where it appeared that the articles which were separately under the value of 5l., were in fact stolen at different times, but were carried out of the house all at once, and the latter learned judge held, after much consideration, that as the articles were brought out of the house all together, the offence (which was then capital) was committed.

Proof of the stealing being in a dwelling-house.] The same evidence which is adduced in indictments for burglary, or house-breaking, [*388] vide supra, will be sufficient proof of the premises being a *dwelling-house upon this indictment, and the 13th section of the 7 & 8 Geo. 4, c. 29, extends to this as well as the above mentioned offences. Vide ante, p. 326. See Turner's case, 6 C. and P. 407 (b).

Several cases have been decided upon the repealed statute, 12 Anne, c. 7, (the words of which are in substance the same as those used in the 7 and 8 Geo. 4, c. 29,) with regard to the occupation of the house in which the offence has been committed. Thus it has been held that the words do not include a stealing in a man's own house, on the ground that the statute was not intended to protect property, which might happen to be in a dwelling-house, from the owner of the house, but from the depredation of others. Thompson's case, 1 Leach, 338; 2 East, P. C. 644. So where a wife was indicted for this offence, and it appeared that the house was the house of her husband, the judges were unanimously of opinion, that the prisoner could not be convicted of the capital part of the charge, inasmuch as the dwelling-house of her husband must be con

(a) Eng. Com. L. Rep. xix. 352. (b) Id. xxv. 460.

strued to be her dwelling-house, and the statute evidently meant the house of another. Gould's case, 1 Leach, 339 (n.); 2 East, P. C. 644. But the house in which a person lodges merely is not his dwellinghouse, so as to prevent the commission of this offence in it by him.

Therefore, where a lodger invited the prosecutor to take part of his bed, without the knowledge of his landlord, and stole his watch from the bed head, it was held by the judges that he was properly convicted of stealing in a dwelling-house. Taylor's case, R. and R. 418 (a). So where goods were left by mistake at a house at which the prisoner lodged, and were placed in his room, and carried away by him, they were held to be within the protection of the house. Carroll's case, 1 Moody, C. C. 89 (b).

So if a man on going to bed, put his clothes and money by his bedside, these are under the protection of the dwelling-house, and not of the person. Thomas' case, Car. Sup. 295. So where a man went to bed with a prostitute, having put his watch in his hat on a table, and the woman stole the watch while the man was asleep, Parke, B., and Patteson, J., after referring to Taylor's case, supra, were of opinion, that the prosecutor having been asleep when the watch was taken by the prisoner, it was sufficiently under the protection of the house to bring it within the statute. Hamilton's case, 8 C. and P. 49 (c). It would appear that had the prosecutor been awake instead of asleep, in Taylor's case, the property was sufficiently within his personal control to render the stealing of it a stealing from the person, and that an indictment under the above enactment would not have been sustainable. Reporter's note to Hamilton's case, supra.

It is a question for the court, and not for the jury, whether goods are under the protection of the dwelling-house, or in the personal care of the owner. Thomas' case, supra.

As in burglary, the ownership of the dwelling-house must be correctly described, and a variance will be fatal. Where a prisoner was indicted for burglary in the dwelling-house of John Snoxall, and stealing goods therein, and it appeared that it was not the dwelling-house of [*389 ] John Snoxall, it was held by Buller, J., and Grose, J., at the Old Bailey, that he could not be found guilty, either of the burglary or of stealing to the amount of 40s. in the dwelling-house, for it was essential in both cases to state in the indictment the name of the person in whose house the offence was committed. White's case, I Leach, 251. So where the house was laid to be the house of Sarah Lunns, and it appeared in evidence that her name was Sarah London, the variance was held fatal. Woodward's case, 1 Leach, 253. (n.)

Consequences of verdict against one of several, as to part of the offence.] Although a verdict may be found against one only, upon a joint indictment, yet if all the prisoners are found guilty, they must be found guilty of the compound larceny. Thus where A. and B. were indicted under the statute 12 Anne, c. 7, for stealing goods to the value of 61. 108. in a dwelling-house, and the jury found A. guilty of such stealing to the value of 61., and B. to the value of 10s.; upon a case reserved, the judges were of opinion, that judgment could not be given against both the pris

(a)1 Eng. C. C. 418. (b) 2 Ibid. 89. (e) Eng. Com. L. Rep. xxxiv. 288.

oners, but that on a pardon being granted, or a nolle prosequi entered as to B., judgment might be given against A. Hempstead's case, Russ. and Ry. 344 (a).

Indictment for burglary.] Upon an indictment for burglary, on a failure to prove a breaking and entering in the night time, the prisoner may be convicted of stealing in a dwelling-house to the value of 51., ante, p. 330.

STEALING IN A DWELLING-HOUSE, ANY PERSON THEREIN BEING PUT IN BODILY FEAR.

Statute 7 Wm. 4 and 1 Vict. c. 86.] This offence was provided against by the statute 3 W. and M. c. 9, s. 1, (repealed by 7 & 8 Geo. 4, c. 27,) and the provisions of the former statute were re-enacted in the 7 & 8 Geo. 4, c. 29.

By the 12th section of which statute it was enacted, that if any person should break or enter any dwelling-house, and steal therein any chattel; money, or valuable security, to any value whatever, or should steal any such property to any value whatever in any dwelling-house, any person therein being put in fear, every such offender, being convicted thereof, should suffer death as a felon.

By the 7 Wm. 4 and 1 Vict. c. 86, s. 1, so much of the above act as relates to stealing in a dwelling-house, any person therein being put in fear, and so much of the same act as relates to the punishment of principals in the second degree, and of accessaries before and after the fact to the said offence, are repealed, except as to offences committed before the 30th September, 1837, which are to be dealt with and punished as if the recent act had not passed.

[*390] *By s. 5, "whosoever shall steal any property in any dwelling-house, and shall by any menace or threat, put any one being therein in bodily fear, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas, for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years."

For s. 6, prescribing the punishment of principals in the second degree, and accessaries before and after the fact, see ante, p. 207.

For s. 7, authorising hard labor and solitary confinement, in cases of imprisonment, see ante, p. 301.

By s. 9, the word "property" is throughout the act, to be deemed to denote every thing included under the words "chattel, money or valuable security," used in the 7 & 8 Geo. 4, c. 29.

The 13th section of the 7 and 8 Geo. 4, c. 29, vide ante, p. 326, describing the buildings which are to be considered parcel of the dwellinghouse, is applicable to this offence.

Upon an indictment for this offence, the prosecutor must prove-1st, the stealing; 2d, that it took place in a dwelling-house; and 3d, that some person therein was put in bodily fear by some menace or threat. It will

(a) Eng. C. C. 344.