[BLACKBURN, J. Lord Coke, 3 Inst., p. 56, puts the case of a man stealing deer in a park, shooting at the deer, and by the glance of the arrow killing a boy that is hidden in a bush, and calls this murder; but can anyone say that ruling would be adopted now?]

The test is whether the act is malicious in itself, as in the case of a person wilfully riding an unruly horse into a crowd: East, Pleas of the Crown, p. 231.

[BLACKBURN, J. I should have told the jury that if the prisoner knew there were windows behind, and that the probable consequence of his act would be to break one of them, that would be evidence for them of malice. The jury might perhaps have convicted on such a charge. But we have to consider their actual findings.]

LORD COLERIDGE, C.J. I am of opinion that the conviction should be quashed. The facts of the case are that there was fighting going on in the streets of Wolverhampton, near the prosecutor's house, and the prisoner, after fighting some time, separated himself from the crowd and threw a stone, which missed the person he aimed at, but struck and broke a window, doing damage to the extent of upwards of £5. The question is, whether under an indictment for unlawfully and maliciously injuring the property of the owner of the plate-glass window, these facts will support the indictment, when coupled with the other facts found by the jury, that the prisoner threw the stone at the people intending to strike one or more of them, but not intending to break a window. I am of opinion that the evidence does not support the conviction. The indictment is under the 24 and 25 Vict. c. 97, s. 51, which deals with malicious injuries to property, and the section expressly says that the act is to be unlawful and malicious. There is also the 58th section, which makes it immaterial whether the offence has been committed from malice against the owner of the property or otherwise, that is, from malice against some one not the owner of the property. In both these sections it seems to me that what is intended by the statute is a wilful doing of an intentional act. Without saying that if the case had been left to them in a different way the conviction could not have been supported, if, on these facts, the jury had come to a conclusion that the prisoner was reckless of the consequence of his act, and might reasonably have expected that it would result in breaking the window, it is sufficient to say that the jury have expressly found the contrary. I do not say anything to throw doubt on the rule under the common law in cases of murder which has been referred to, but the principles laid down in such cases have no application to the statutable offence we have to consider.

BLACKBURN, J. I am of the same opinion.

We have not now to

consider what would be 'malice aforethought' to bring a given case within the common law definition of murder. Here the statute says that the act must be unlawful and malicious, and malice may be defined to be "where any person wilfully does an act injurious to another without lawful excuse." Can this man be considered, on the case submitted to us, as having wilfully broken a pane of glass? The jury might perhaps have found on this evidence that the act was malicious, because they might have found that the prisoner knew that the natural consequence of his act would be to break the glass, and although that was not his wish, yet that he was reckless whether he did it or not; but the jury have not so found. I think it is impossible to say in this case that the prisoner has 'maliciously' done an act which he did not intend to do.

The other three Judges were of the same opinion.

Conviction quashed.

[See REG. v. FAULKNER, supra, p. 152.]

SECTION VII.

BURGLARY.

CHAPTER I. THE PLACE.

[Burglary can only be committed in a dwelling-house.]

REX v. DAVIS AND ANOTHER.

CROWN CASE RESERVED.

1817.

RUSSELL AND RYAN 322.

The prisoners were tried before Mr JUSTICE ABBOTT (present Mr JUSTICE PARK), at the Old Bailey January Sessions, in the year 1817, upon an indictment which charged them with breaking and entering the dwelling-house of Thomas Porteous, Esq., in the day-time, certain persons named being therein, and stealing therein a silver candlestick of the value of fifty shillings.

The house was situate in Half-Moon Street, Piccadilly; and the evidence of breaking the house (upon which alone this case was reserved), was the opening of the area gate at the street with a skeleton key, and so descending the area steps, and entering the house by a door in the area, which did not appear to have been shut.

ABBOTT, J., having some doubt whether this was a breaking of the dwelling-house, told the jury he would reserve that point for the opinion of the Judges, if they should think the prisoners got into the house in the manner stated and stole the candlestick, and should think the candlestick of less value than forty shillings.

The jury said, they thought the candlestick was not worth forty shillings; and in other respects they thought the prisoners guilty.

ABBOTT, J., directed a minute to be made, that the verdict might afterwards be recorded according to the opinion of the Judges upon the point reserved; and the learned Judge directed, that if the Judges should be of opinion that this was a breaking, the verdict should be recorded as finding the prisoners guilty of the breaking and entering, &c., and stealing to the value of thirty-nine shillings. But if the Judges should be of opinion that this was not a breaking, then the verdict was to be recorded finding the prisoners not guilty of the breaking, but guilty of stealing to the value of thirty-nine shillings, in order that they might have the Benefit of Clergy.

In Hilary term, 1817, this case was considered by the Judges, when they were unanimously of opinion, that breaking the area gate was not a breaking of the dwelling-house, as there was no free passage, in time of sleep, from the area into the house.

[EDITOR'S NOTE. Even if the burglary were disproved, the charge of larceny remained; and in that charge, the value was a matter of importance. For though the Benefit of Clergy could be claimed in cases of simple larceny, it was taken away by 12 Anne, st. 1, c. 7 from larcenies which were aggravated by being committed in a dwelling-house to a value of 40s. or upwards. In burglary, the benefit had been taken away by 18 Eliz. c. 7.]

[A building which, though occupied, is not slept in, is not a

dwelling-house.]

REX v. MARTIN.

CROWN CASE RESERVED.

1806.

RUSSELL AND RYAN 108.

The prisoners were tried before Mr BARON GRAHAM, at the Lent Assizes for the county of Northampton, in the year 1806, on an indict

ment for a burglary committed on the 19th of December, 1805, in the dwelling-house of one Samuel Clayson.

The house was to all intents and purposes a complete dwellinghouse, if it could under the circumstances be considered as inhabited, upon which question the point arose.

The house stood in a street in Wellingborough, in the range of houses, the entry from the street being by a common door-way. The inside of the house consisted of a shop and parlour, from whence the goods were taken, and a staircase leading to a room over the shop in which there was bedding, but it was not fitted up. The prosecutor took it about two years before the offence was committed, and made several alterations in it, intending to have married and lived in it: but continuing unmarried, and his mother living in a house next door but one, he slept every night at her house. Every morning he went to his house, transacted his business in the shop and parlour, and dined and entertained his friends and passed the whole day there, considering it as his only home. When he first bought the house he had a tenant; who quitted it soon afterwards, and since that time no person had slept in it.

It appeared from the evidence, that the prisoners, and others connected with them, had broken open the house in the night and stolen drapery and hosiery goods to the amount of considerably more than £200. But an objection was taken that the shop from whence the goods were taken was not the dwelling-house of the prosecutor; and though the objection appeared to the learned Judge to have weight, he thought it proper, in a case attended with circumstances of considerable aggravation, to overrule it. The case being left to the jury, they found the prisoners guilty; and sentence of death was passed upon them; but the point was saved for the consideration of the Judges.

The question reserved for the opinion of the Judges was, whether this sort of inhabiting was sufficient to make the house the prosecutor's dwelling-house.

In Easter term 28th of April, 1806, at a meeting of all the Judges (except Lord Ellenborough) the conviction was held wrong, the house not being a dwelling-house.

[Even though the tenant intend to sleep there soon.]

REX v. THOMPSON.

SURREY ASSIZES. 1796.

LEACH 771.

Norreg Thompson was charged before Mr JUSTICE GROSE for burglariously breaking and entering the dwelling-house of Thomas Parry, at Stoke Newington, on the 9th of November preceding, and stealing two Brussels carpets, and a quantity of wearing apparel and other articles, the property of the said Thomas Parry.

It appeared in evidence that the prosecutor had recently before hired a house in the Apollo Plotts, in Walworth; that neither he nor any of his family or servants had ever yet slept therein; but that he had removed a great part of his household furniture into the house, which was locked up in the house after dark on the 9th of November. The door was broken open and the goods taken away before daylight the ensuing morning.

The Court was of opinion that this house, as no person had inhabited it, could not be considered as a dwelling-house so as to satisfy an indictment for burglary.

And the prisoner was accordingly acquitted.

[Nor is it sufficient that persons do sleep there, unless they are members of the occupier's household.]

REX v. HARRIS.

OLD BAILEY SESSIONS.

1795.

LEACH 701.

At the Old Bailey in October Session, 1795, John Harris was tried before the RECORDER of London for burglariously breaking and entering the dwelling-house of Henry William Dinsdale, on the 6th of October, and stealing therein a gold watch value £10, the goods of the said William Dinsdale.

It appeared in evidence, that Mr Dinsdale had lately taken the house in Queen Street, in Cheapside, but had never slept in it himself ; but on the night of the burglary, and for six nights before, had procured two hair-dressers, of the names of Thomas Nash and James Chamberlain, who resided at St Ann's-lane, near Maiden-lane, in Woodstreet, but in no situation of servitude to the prosecutor, to sleep in