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BURGLARY.

Burglary. The 10 Wm. 3, c. 12; vulgo 10 & 11 Wm. 3, c. 23 ; 6 Anne,

c. 9; 12 Anne, c. 7; 4 Geo. 1, c. 11, repealed by 7 & 8
Geo. 4, c. 27; 18 Eliz. c. 7, repealed by 9 Geo. 4, c. 31.

LARCENY ACT.
7 & 8 Geo. 4, c. 29.

7 & 86.4, c.29. Sect. XI. And be it enacted, That every person convicted of Burglary, capiburglary shall suffer death as a felon; and it is hereby declared, tal. that if any person shall enter the dwelling house of another with intent to commit 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.

Sect. XIII. Provided always, and be it enacted, That no 7 & 8G.4,c.29. building, although within the same curtilage with the dwelling What buildhouse, and occupied therewith, shall be deemed to be part gs only are of such dwelling house, for the purpose of burglary, or for part of a house

for capital purany of the purposes aforesaid, unless there shall be a commu

poses. nication between such building and dwelling house, either immediate, or by means of a covered and inclosed passage leading from the one to the other.

Note.-The passages in the first-mentioned section are clearly divisible: the first propounds the punishment of death for burglary at common law, which was the breaking and entering a house in the night-time, with intent to steal; the second re-enacts the declaratory provisions of the statute of Anne, and ordains that persons breaking out of a house, are to be deemed guilty of burglary.

The breaking, the entry, the ownership of the house, the severance of occupation, the time of night, remain liable to the same questions as before ; but the appurtenances to the mansion, about which so many difficulties have been raised, are more particularly described in a separate section. And, by virtue of it, such cases as have decided that the entering an outhouse, where there is no internal communication with the dwelling house, unless through an open passage, fall now under a separate enactment, which declares that the party convicted of such an offence shall be transported for life, and thus,

Burglary. so far, a capital felony is abandoned, though it may be said

that burglaries of this latter description were rarely visited 7&8G. 4, c. 29. by execution. See Russ. and Ryan, 170. Rer v. Hancock,

and other cases.

The section referred to will be found under the head of dwelling house.

Upon an indictment for burglary and stealing to the value of 5 1. the prisoner may be convicted of burglary, or of housebreaking, or of stealing to the value of 5 l., 3 C. & P. 418; per Gaselee, J.

Indictment for Burglary.
Hertfordshire, The jurors for our lord the King, upon their

to wit. Joath present, that A. late of [Watford) in the county of Hertford, (labourer) on — &c. about the hour* of eleven in the night of the same day, with force and arms, at the parish + of [Watford] aforesaid, in the county afore. said, the dwelling house of one B. there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said B.# in the said dwelling house then and there being found, then and there feloniously and burglariously to steal, take and carry away, and one watch § of the value of ten pounds ll, of the goods and chattels of the said B. in the said dwelling then and there being found, then and there feloniously and burglariously did steal, take and carry away, against the peace of our said lord the King, his crown and dignity.

Evidence.
Upon this occasion: 1. The breaking and entering must
be proved. This may be done by showing either an actual or
constructive breaking, together with an entry. The construc-
tive breaking happens when admission is gained by force or
stratagem, with an intention to commit larceny, or by threats
Then, 2dly, an entry must be proved. The least entry is
enough, even the introduction of a finger or an instrument.
The allegation of entry also may be sustained, although a
child under years of capacity to commit felony, as seven or
eight, be sent in at a window, and the prisoner be waiting

* Immaterial, so as it be in the night.
+ Material.
# Be particular as to the ownership.

State the matter correctly; for if nothing be taken, “ it is still burglary, if the house be broken.”

The value is immaterial.

without to receive the goods taken, for he is a principal aid- Burglary. ing and abetting. 2. It must appear, that the dwelling house of some person other than the prisoner has been thus invaded 7 & 86.4,c.29. by him, for a man cannot commit this offence in his own house. The test of this word, “ dwelling house,” consists in a permanent inhabitancy. After the owner has fixed his residence, although he abandon the house entirely, leaving no one in it, yet, if he intend to return, a burglary may be committed in it. On the other hand, if he do not appear to have any settled determination of returning, or if the house be broken whilst, for instance, it is in the care of workmen, and, in fact, before he has taken up his abode there, the offence cannot be accomplished. 3. It must appear that the deed was done at night, that is, at a time when the daylight or twilight was insufficient for a man's face to be seen. The breaking may be proved to have been on one night, and the entry on another, so that the day as laid in the indictment is not material. But the parish must be proved as laid in the indictment, at least such is now the opinion received and acted upon. These three proofs will not, however, avail, unless a felonious intent be disclosed. The word “ feloniously,” must be sustained. But the removing of property, or the fact of breaking without any ostensible cause, are almost conclusive evidences of such an intent.

Therefore, if the prisoner be shown to have broken and entered the house of B. in the night, and to have taken the goods of B., he must be convicted on this indictment. So it would be also if the breaking and entry, together with an intent to steal, be proved to have taken place in the night time as above stated.

Indictment for breaking out at Night. [Same as in the former precedent to the (.] And that the said A. so then and there being in the said dwelling house, with such intent as aforesaid, and so having committed the said felony as aforesaid, did then and there in the night time, with force and arms, feloniously and burglariously, and against the form of the statute * in such case made and provided, break the said dwelling house to get out of the same, against the peace of our lord the King, his crown and dignity.

But if this averment were omitted by accident, an objection would not avail, because the statute is declaratory.-See another precedent, C. C. Companion, 97.

Burglary.

Evidence. Two cases are provided for by the statute : 7&8G.4, c. 29. 1. Where a person enters with intent to commit felony,

and breaks out.

2. Where, being in, a person breaks out, having committed felony.

The proofs necessary are—the entry and the commission of felony, or the felony with the breaking out. In either case, it seems,

that the act of felony, with the subsequent breach of the house, would be sufficient, because those are the gravamina of the offence.

“ It seems a simple breaking, without an actual exit, will do.” C.C. Companion, p. 98.

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The setting Fire to Mines, Ships, &c. and the Offence of Arson,

will be found in other places, under the heads of MINES,

Ships, &c.
The 43 Eliz. c. 13; 4 Wm. & Mary, c. 23 ; 1 Geo. 1, st. 2,

c. 48; Geo. 1, c. 22; 28 Geo. 2, c. 19, s. 3, repealed by
7 & 8 Geo. 4, c. 27.

MALICIOUS INJURIES Act.

7& 8 G.4, c. 30.

7 & 8 Geo. 4. c. 30. Setting fire to a Sect. XVII. And be it enacted, That if any person shall stack of orn, unlawfully and maliciously fire to any stack of corn, grain, grain, straw,

pulse, straw, hay or wood, every such offender shall be guilty hay, &c. The like to certain

of felony, and being convicted thereof, shall suffer death as a crops, planta- felon; and if, any person shall unlawfully and maliciously set tions, and heath. fire to any crop of corn, grain or pulse, whether standing or cut

down, or to any part of a wood, coppice or plantation of trees, or to any heath, gorze, furze or fern, wheresoever the same may be growing, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment.

*

Indictment for Burning, Hay, Wood, &c.

Burning. Hertfordshire,The jurors for our lord the King upon their to wit.

Soath present, that A., late of, &c., labourer, 7& 8 G. 4, c. 30. on, &c. with force and arms at &c. aforesaid, in the county aforesaid, a certain stack of hay [wood] [corn] [as the case may be] [a certain coppice] or [plantation] of and belonging to one, B. t, feloniously, unlawfully, wilfully and maliciously did set fire to, against the form of the statute in that case made and provided, and against the peace of our lord the King, his crown and dignity.

Evidence. Here, as in the case of arson, it is incumbent on the prosecutor to prove the burning the property, and ownership; and, lastly, the felonious intent.

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The 37 Hen. 8, c. 6; 37 Hen. 8, c. 8, s. 2, as to horse-
stealing ; 1 Edw. 6, c. 12, s. 10, 14, as to horse-stealing ;
2 & 3 Edw. 6, c. 33, horse-stealing ; 31 Eliz. c. 12, acces-
sories before and after the fact of horse-stealing, punished
with death without clergy ; 22 & 23 Car. 2, c. 7; 10 Wm. 3,
c. 12, as to horses ; 6 Anne, c. 9; 9 Geo. 1, c. 22 ; 14 Geo. 2,
c. 6, sheep and cattle-stealing ; 15 Geo. 2, c. 34, sheep and
cattle-stealing ; 4 Geo. 4, c. 54, repealed by 7 & 8 Geo. 4,
c. 27.

LARCENY Act.
7 & 8 Geo. 4, c. 29.

7& 8G.4, c. 29. Sect. XXV. And be it enacted, That if any person shall steal Stealing horses, any borse, mare, gelding, colt or filly, or any bull, cow,

cows, and sheep. heifer or calf, or any ram, ewe, sheep or lamb, or shall wilfully kill any of such cattle, with intent to steal the carcase or skin, or any part of the cattle so killed, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon.

ox,

* The parish is material.
+ Be particular as to the ownership.

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