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Geo. 4, c. 29, after providing for burglary and
housebreaking, by s. 13 enacted that no build-
ing, except such as therein specified, should be
deemed a part of a dwelling house, “for the
purpose of burglary, or for any of the purposes
aforesaid ;” but as this Act contains sundry
new clauses as to dwelling houses, the well-known
and approved words " for any of the purposes of
this Actwere inserted, in order to include
every case where a dwelling house is mentioned,
as well as every case where any question might
arise under this Act as to what was a dwelling
house; and it is plain that on the trial of any
indictment for burglary, the question might
arise whether the building broken into be a
dwelling house, or part of a dwelling house
within the terms of this clause, and unless it be
one or the other, there can be no conviction or
punishment for burglary. We shall only add,
that if the objection were valid, its sole effect
would be to render an offender punishable for
burglary instead of for breaking into a building
within the curtilage; in other words, it would
aggravate but never diminish the punishment.

54. Whosoever shall enter any dwelling house in Entering the night, with intent to commit any felony therein, a dwelling shall be guilty of felony, and being convicted thereof house in shall be liable, at the discretion of the Court, to be with intent kept in penal servitude for any term not exceeding to commit seven years and not less than three years,—or to be any felony. imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.

Note.--This clause is new, and contains a very great improvement of the law. It frequently happened on the trial of an indictment for burglary where no property had been stolen, that the prisoner escaped altogether for want of sufficient proof of the house having been broken into, though there was no moral doubt that it

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had been so. This clause will meet all such cases. It will also meet all cases where any door or window has been left open, and the prisoner has entered by it in the night.

It is clear that if, on the trial of an indictment for burglary with intent to commit a felony, the proof of a breaking should fail, the prisoner might nevertheless be convicted of the offence created by this clause, for such an indictment contains everything that is required to constitute an offence under this clause, in addition to the allegation of the breaking, and the prisoner may be acquitted of the breaking and convicted of the entering with intent to commit felony, in the same manner as on an indictment for burglary and stealing, he may be acquitted of the breaking and convicted of the stealing. See 2 Russ. C. & M. 789. And this affords an additional reason why in an indictment for burglary and committing a felony there should always be introduced an averment of an intent to commit that felony; so that if the proof of the commission of the felony and of the breaking fail, the prisoner may nevertheless be convicted of entering by night with intent to commit it.

As to hard labour, &c., see ante, p. 5.

into any

Breaking 55. Whosoever shall break and enter any building,

and commit any felony therein, such building being building within the within the curtilage of a dwelling house, and occupied curtilage therewith, but not being part thereof, according to which is

the provision hereinbefore mentioned, or being in no part of the dwell any such building shall commit any felony therein, and ing house break out of the same, shall be guilty of felony, and

being convicted thereof shall be liable, at the dismitting any felony.

cretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years, - or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.

and com

Note.--This clause is taken from the 7 & S

Geo. 4, c. 29, s. 14, and 9 Geo. 4, c. 55, s. 14
(I.).

See the note to s. 50, ante, p. 139, as to “any
felony."

The other words in Italics place breaking out after committing a felony in any such building as is here mentioned, on the same footing as breaking in and committing a felony, and thus make the provision similar to that in burglary; see sec. 51, ante, p. 140.

The G Geo. 4, c. 55, s. 14 (I.), provided that a person might be convicted of stealing in a building within the curtilage either upon an indictment for such offence, or upon an indictment for burglary, housebreaking, or stealing to the value of five pounds in a dwelling house, containing a count for such offence, and that the prosecutor should not be put to his election to proceed on one of such counts. This proviso has been omitted, as it is clearly unnecessary ; for the several counts would only charge one offence in different ways, so as to suit the case as it might appear upon the evidence, and therefore no objection could be sustained on the ground that they were improperly joined in the same indictment.

As to hard labour, &c., see ante, p. 5.

56. Whosoever shall break and enter any dwelling Breaking house, schoolhouse, shop, warehouse, or counting- into any

house, house, and commit any felony therein, or, being in

shop, wareany dwelling house, schoolhouse, shop, warehouse, or house

, &c., counting-house, shall commit any felony therein, and and combreak out of the same, shall be guilty of felony, felony.

mitting any and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years,--or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.

Note. This clause is taken from the 17 & 8

Geo. 4, c. 29, ss. 12, 15, and 9 Geo. 4, c. 55, ss. 12, 15 (I.).

The former enactments are extended to any schoolhouse.

See the note to s. 50, ante, p. 139, as to "any felony."

See the last note as to the other words in Italics.

As to hard labour, &c., see ante, p. 5.

intent to

House 57. Whosoever shall break and enter any dwelling breaking: house, church, chapel, meeting house, or other place of &c., with

divine worship, or any building within the curtilage, commit any schoolhouse, shop, warehouse, or counting-house, with felony.

intent to commit any felony therein, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three years,—or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.

Note.—This clause is new, and contains a very important improvement of the law. Formerly the offence here provided for was only a misdemeanor at common law. Now, it often happened that such an offence was very inadequately punished as a misdemeanor; especially since the night was made to commence at nine in the evening; for at that time in the winter in rural districts the poor were often in bed. Nor could anything be much more unreasonable than that the same acts done just after nine o'clock at night should be liable to penal servitude for life, but if done just before nine, they should only be punishable as a misdemeanor.

It is clear that if, on the trial of an indictment for burglary with intent to commit a felony, it should appear that the breaking and entry were before nine o'clock, the prisoner might be convicted under this clause. See note to sec. 54, ante, p. 146. But upon an indictment in the

ordinary form for housebreaking, &c., the pri-
soner could not be convicted under this clause,
because it does not allege an intent to commit
a felony. It will be well, however, to alter the
form of these indictments, and to allege a
breaking and entry with intent to commit some
felony, in the same manner as in an indictment
for burglary with intent to commit a felony,
and then to allege the felony that is supposed
to have been committed in the house. If this
be done, then if the evidence fail to prove the
commission of that felony, but prove that the
prisoner broke and entered with intent to
commit it, he may be convicted under this
clause.
As to hard labour, &c., see ante,

, p. 5.
Where a prisoner was indicted on this clause,
for breaking and entering a shop with intent to
commit a felony, and it appeared that he had
broken a large hole into the roof of the shop,
but there was no evidence that he had in any
way entered the shop, it was held that he might
be convicted of an attempt to commit that
felony under the 14 & 15 Vict. c. 100, s. 9.
Reg. v. Bain, 1 Leigh & C. 130.

58. Whosoever shall be found by night armed Being, with any dangerous or offensive weapon or instru-armed with ment whatsoever, with intent to break or enter into break and any dwelling house or other building whatsoever, enter any and to commit any felony therein, or shall be found house in

the night. by night having in his possession without lawful excuse (the proof of which excuse shall lie on such person) any picklock, key, crow, jack, bit, or other implement of housebreaking, or shall be found by night having his face blackened or otherwise disguised with intent to commit any felony, or shall be found by night in any dwelling house or other building whatsoever with intent to commit any felony therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term

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