Wife separated, and living on her separate means. Wife living separate and in adultery. Partners. House occupied by one only. One partner lodging and boarding in a house rented by the other. A house, the joint property of partners in trade, in which the business is carried on, and in which the business sleep, But in any case where the law would adjudge the separate property of the mansion to be in the wife, and she has also the exclusive possession, the burglary ought to be laid against her mansionhouse, and not against that of her husband. 2 East's P. C. 504. Husband and wife were separated, and she subsisted on property which was hers before marriage, and was conveyed to trustees for her separate use; the house was not part of such property, but was hired, and the rent paid by herself, and her husband had never been in it. On indictment for burglary the judges were clear, that it must be laid as the dwelling-house of her husband, because at law the wife could have no property. M. T. 1822, French's case, C. C. R. 491. Where a man and his wife agreed to live separate, and he allowed her to occupy a house of his, which he had built, but never resided in, and she and another man lived there in criminal intercourse, as man and wife; held, in burglary, that it was properly described as the dwelling-house of the husband. Tr. T. 1823, Wilford's case, C. C. R. 517. M. Jones was indicted for burglary in the dwelling-house of T. Smith and J. Knowles. The prosecutors were in partnership, and lived next door to each other. The two houses, which were formerly one, had been divided for the purpose of accommodating their respective families, and were at the time perfectly distinct and separated from each other, without any communication but by the street. The housekeeping was paid by each partner separately for his own house: but the rent and taxes of both houses were paid jointly out of the partnership fund. The offence was committed in the house of Smith, to whom the prisoner was servant. It was objected, that though these two houses were the joint property of both the partners, yet they were the several and respective mansions of each; and therefore the offence ought to have been stated to have been committed in the house of Smith only and the court, considering the objection to be well founded, directed the jury to acquit the prisoner of the capital part of the charge; and she was found guilty of the simple larceny only. M. Jones's case, O. B. Sept. 1790, 2 East's P. C. 504. 1 Leach, 537. : A. and B. were partners, and A. rented the whole of the premises in which the business was carried on, and there resided, but B. lodged and boarded with him, and also paid a certain proportion of the rent and taxes for the shop and warehouse. On an indictment for felony committed in the shop, it was held to be properly laid as stealing in the dwelling-house of A. Parminter's case, 1 Leach, 537. n. (a) 2 Russ. 31. Prisoner being indicted for stealing the goods of H. and others in their dwelling-house, it appeared that H., P., and S. carried ou an extensive business in the house as partners; the house was the servants in the joint property of the firm, and a number of young men, employed in the business, slept in the house; P. and his family lived in it, but H. and S. resided elsewhere: on Ca. res. the question was, whether the dwelling-house was properly laid as that of all the partners, or whether it ought to have been laid as that of the resident partner only. The judges were unanimous that the dwelling-house was properly described, and the conviction right. E. Ť. 1832, R. v. G. Athea, 1 M. 329. scribed as the in it. House let to one of two partners, shop (part of it) to both. Where premises consisted of a house and warehouse under the same roof, and with internal communication, and the house was let to A. and the warehouse to A. and B. jointly, burglary having been committed in the warehouse, held, that it could not be laid as the dwelling-house of A. E. T. 1813, Jenkins's case, C. C. R. 244. A. and B. following different trades, rented between them, but at House occupied different rents and tenures, a house and shop, but divided the shop by two tradesby a partition, so as to make two shops for the separate business of men severally; each, and there was an internal communication between the shops shop divided. and the house, and as to the rest of the premises there was no division except by the several apartments; the shop of A. having been broken open in the night, held, that it was rightly described as the dwelling-house of A. E. T. 1824, Bailey's case, R. & M. 23. And where inmates have several rooms in a house, of which Inmates of a they keep the keys, and inhabit them severally with their families, house. yet if they enter at one outer door with the owner, these rooms cannot be said to be the dwelling-houses of the inmates, but the indictment ought to be for breaking the house of the owner. But if the owner inhabit no part of the house, or even if he occupy a shop or a cellar in it, but do not sleep therein, the apartments of See Rogers's such inmates shall be considered as their respective dwelling. Ca.supra, p.96. houses. Carrell's case, 1 Leach, 237. Trapshaw's case, 1 Leach, 427., and p. 90. notis. Acc. If the owner who lets out apartments in his house to other Lodgers. persons, sleep under the same roof, and have but one outer door common to him and his lodgers, such lodgers are only inmates, and all their apartments are parcel of the one dwelling-house of the owner. Kel. 84. By consequence, if a man let out part of his house to inmates, Owner breakand continue to inhabit the rest himself, if he break open the ing lodger's apartments of such inmates and steal their goods, it will be felony apartments. only, and not burglary; for it cannot be burglary to break open his own house. 2 East, P. C. 506. 2 Russ. 31. But if the owner do not lodge in the same house, or if he and Separate enthe lodgers enter by different outer doors, the apartments so let trances. out are the mansion for the time being of each lodger respectively, even though the rooms are let by the year. 2 East's P. C. 505. But if A. have a shop which is parcel of his house, the indict- Shop, parcel of ment must be for breaking the mansion-house of A.; but if it be house. severed by lease, and have no communication with the dwellinghouse by having a different entrance, then, unless the lessee or his servant sleep there usually or often, no burglary can be committed in it. (2 East's P. C. 507.) For it is not the mansion-house of A., being severed by the lease; nor can it be said to be the mansion- Severed. house of the lessee, if neither he nor his family ever dwell there, or if their sleeping there be only casual or temporary. To break and enter a shop, not parcel of the mansion-house, in which the shopkeeper never lodges, but only works or trades there in the day-time, is not burglary, but only larceny: but if he or his servants usually or often lodge in the shop at night, it is then a mansion-house, in which burglary may be committed. 1 Hale, 557, 558. It is necessary also to state with accuracy the name of the person whose goods are stolen. Thus, where the indictment was for breaking, &c. the house of J. Davis, with intent to steal the Indictment. claims property goods of J. Wakelin, in the said house being, and there was no in the goods, such person who had goods in the house; but J. W. was, by mistake, inserted for J. D.; the prisoner was acquitted. And it was ruled that the words "J. W." could not be rejected as surplusage, they being sensible and material; that it was necessary to state truly the property in the goods, and that without such words the description of the offence would be incomplete; and that it is not like the case of alleging a robbery in the dwellinghouse of A., which turns out to be the property of B.; because that circumstance is perfectly immaterial in robbery, which is ousted of clergy generally. Jenks's case, O. B. June, 1796, 2 East's P. C. 514. 2 Leach, 774. M. T. 1796. Mansion or. It is necessary to state in the indictment, that the offence was dwelling-house committed in a mansion-house or dwelling-house; to say only, in a house, will not be sufficient. 2 East, P. C. 512. 2 Russ. 36. Parish. Church. Owner, Technical terms. What shall be So the parish in which it is situate must be correctly stated. 2 Russ. ib. In case of burglary in a church, it may be laid as committed in the parish church of such a parish. 2 East, P. C. 512. 2 Russ. 37. The indictment must also state truly the name of the owner of the dwelling-house. 2 East, P. C. 513. 2 Russ. 37. The terms "feloniously and burglariously" must be used; and also that the prisoner "broke and entered." 2 Russ. 37. As to what shall be accounted night for this purpose; anciently deemed night. the day was accounted to begin only from sun-rising, and to end immediately upon sun-set: but it is now generally agreed, that if there be daylight enough begun or left either by the light of the sun or twilight, whereby the countenance of a person may be reasonably discerned, it is no burglary; but that this does not extend to moonlight; for then many midnight burglaries would go unpunished. (3 Inst. 63. 1 Hale, 550. 2 East's P. C. 509.) And, besides, the malignity of the offence does not so properly arise, as Mr. Justice Blackstone observes (4 Com. 224.), from its being done in the dark, as at the dead of night, when all the creation, except beasts of prey, are at rest, when sleep has disarmed the owner, and rendered his castle defenceless. Hour must be alleged. Evidence. There must be an intent to commit felony. In the day-time there can be no burglary. 4 Blac. Com. 224. Rex v. Waddington, 2 East, P.C.513. At Lancaster Lent assizes, 1771, there was an indictment for burglary, alleging the fact to have been committed in the night, but not expressing about what hour it was done. Mr. J. Gould held the indictment insufficient as for a burglary, and directed the prisoner to be found guilty of a simple felony only. He said that, according to the old doctrine, a burglary might be committed at any time between sun-setting and sun-rising; but that the rule now established is, that it cannot be committed during the crepusculum; that therefore it is necessary to specify the hour, in order that the fact may appear upon the face of the indictment to be done between the twilight of the evening and that of the morning. It is not necessary, however, that the evidence should prove the hour laid in the indictment: it will be sufficient if the offence appear to have been committed in the night. 2 East, P. C. 513. 2 Russ. 36. There can be no burglary but where the indictment both expressly alleges, and the verdict also finds an intention to commit : some felony for if it appear that the offender meant only to commit a trespass, as to beat the party, or the like, he is not guilty of burglary. 1 Haw. c. 38. § 18. J. Dobbs was indicted for burglary in breaking and entering the stable of J. Bayley, part of his dwelling-house, in the night, with a felonious intent to kill and destroy a gelding of one A. B. there being. It appeared that the gelding was to have run for 40 guineas, and that the prisoner cut the sinews of his fore-leg to prevent his running, in consequence of which he died. Parker C. J. ordered him to be acquitted; for his intention was not to commit the felony by killing and destroying the horse, but a trespass only to prevent his running; and therefore no burglary. But the prisoner was again indicted for killing the horse, and capitally convicted. Dobbs's case, Buckingham Sum. Ass. 1770, 2 East's P. C. 513. Vide 1 Hale, 561. Rez v. Knight & Roffey, 2 East's P. C. 510. The prisoners were indicted for a burglary in the dwelling-house of Mary Snelling, the intent being laid to steal the goods of one Leonard Hawkins. It appeared that Hawkins, who was an excise officer, had seized some bags of tea in a shop, entered in the name of Smith, as being there without a legal permit, and had removed them to Mary Snelling's, where he lodged. The prisoners and many other persons broke open Mary Snelling's house in the night, with intent to take this tea. It was not proved that Smith was in company with them; but the witness said, that they supposed the tea to belong to Smith; and supposed that the fact was committed either in company with him, or by his procurement. The jury, being directed to find as a fact with what intent the prisoners broke and entered the house, found that they intended to take the goods on the behalf of Smith; and, upon the point being reserved, all the judges (E. T. 1782) were of opinion that the indictment was not supported; as, however outrageous the conduct of the prisoners was, in so endeavouring to get back Smith's goods, still there was no intention to steal. But if the indictment had been for breaking the house with intent feloniously to rescue goods seized, &c., which is felony by stat. 19 G. 2. c. 34., some of the judges thought that it would have been burglary. But even in that case, it was agreed that 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 being found in oil-cases, or in great quantities in an unentered place, would have been sufficient for that purpose. For it seems the better opinion, that an intention to commit a rape, or other such crime, which is made felony by statute, and was a trespass only at common law, will make a man guilty of burglary, as much as if such offence were a felony at common law; because, wherever a statute makes any offence felony, it incidentally gives it all the properties of felony at common law. 1 Haw. c. 38. § 18. 2 East, P. C. 511. 2 Russ. 34. Either at common law, or such as is made felony by statute. Intent to com mit sufficient. Thus, they are burglars who break any house or church in the night, although they take nothing away. And herein this offence differs from robbery, which requires that something be taken, though it is not material of what value. 2 East, P. C. 484. 2 Russ. 33. But whatever be the felony really intended, the same must be Must be proved laid in the indictment, and proved agreeably to the fact. as laid. On an indictment for burglary and stealing goods, it appeared that no goods were stolen, but a burglary with intent to steal; the latter not being so laid, as it ought to have been, Holt C.J. directed the prisoner to be acquitted. 2 East's P. C. 514. So, if it be alleged that the entry was with intent to commit one sort of felony, and the fact appear to be that it was with intent to commit another; that is not sufficient. 2 East's P. C. 514. Though, if the intended felony were actually committed, it is enough to state the breaking and entering to be with intent to do Ibid. So. Different in- Different intents may be stated in different counts of the same tents in different indictment. 2 East, P. C. 515. 2 Russ. 35. Dounts. Stealing and intent to steal, distinction. Conviction for larceny. For housebreaking and larceny. Though one has pleaded guilty to the burglary. Punishment. Accessaries. Principal acquitted of the capital charge. Accessary con ing the goods, and transported for 14 years. 5 G. 4. c. 83. It has been decided, that an acquittal upon an indictment for burglary in breaking, &c. and stealing, cannot be pleaded in bar to an indictment for the same act of burglary with intent to steal. 2 East, P. C. 519. 2 Russ. 38. R. v. Vandercomb & Abbott. II. Werdict and Judgment. The indictment may be so laid as to comprise several offences, arising out of the same transaction, so that the prisoner may be found guilty of part, and acquitted of the rest. Where the indictment is for burglary and stealing, the prisoner may be acquitted of the burglary and found guilty of stealing in the dwelling-house. R. v. Withall and Overend, 2 East, P. C. 517. acc. Hungerford's case, ib. 518. See 2 Russ. 43. Where three prisoners were indicted for burglary and stealing, and one of them pleaded guilty, and the two others were acquitted of the burglary, but found guilty of stealing in the dwelling-house, it was held by a majority of the judges, that judgment for capital offences might be entered against all three. Butterworth's case, C. C. R. 520. See Hempstead's case, C. C. R. 344., where it was held, that two being indicted for a joint offence, they could not receive judgment each of a several offence. III. Punishment. It is enacted by § 11. of 7 & 8 G. 4. c. 29. "that every person convicted of burglary shall suffer death as a felon." In regard to the punishment of principals in the second degree, and also of accessaries both before and after the fact, and concerning the trial of accessaries, see tit. Accessaries. Rex v. Gadsby, Northampton Lent Assizes, 1818, MS. C. C. R. Joseph Wilmore was indicted at Northampton Lent Assizes, 1818, before Garrow B. for a burglary in the dwelling-house of Charles Hill, and burglariously stealing his goods: Joseph Gadsby, for feloniously and burglariously receiving the same. Upon the trial, the prisoner Wilmore was acquitted of the burglary, but found guilty of stealing the goods; and Gadsby was found guilty of feloniously receiving. Denman objected, that Wilmore having been acquitted of the burglary, Gadsby could not be convicted. Upon case reserved, the judges held the conviction right, and the prisoner was transported for fourteen years. As a means of preventing burglary and house-breaking, by stat. |