evidence to show that the door in the roof had been broken open, but the other had been wrenched off its hinges; there was no proof, however, of any entry having been made through that door; and it was held that the charge of burglary was not proved; for the entry must be consequent upon the breaking.(v)

The entry need not be made on the same night as the breaking, though both must be done in the night time:(w) but this point will be more properly mentioned in the treating of the time at which the offence may be committed.

The doctrine which has been laid down, respecting principals in the second degree, and aiders and abettors, in a former part of this work, will apply to the case of burglary; and make the breaking and entering by one the act of all the party engaged in the transaction, and legally present while the fact is committed.(x) So that if A., B., and C., go upon a common purpose and design to commit a burglary in the house of D., and A. only actually break and enter the house, B. stand near the door but do not enter, and C. stand at the lane's end, orchard gate, &c., to watch, this will be burglary in them all; and they are all in law principals. (y)

Neither will the offence be the less the act of the party from his having effected

the entry and the stealing by means of an *infant under the age of discretion.

*15] Thus, if A., a man of full age, take a child of seven or eight years old, well instructed by him in the villanous art, as some such there are; and the child goes in at the window, takes goods out, and delivers them to A., who carries them away, this is burglary in A., though the child who made the entry, be not guilty, by reason of his infancy.(z)

II. The breaking and entering, which have been thus described, must take place in a mansion or dwelling-house; which latter term is now generally adopted in iadictments for burglary. And in treating of such mansion, or dwelling-house, it will be proper to inquire, first, as to what shall be so considered; secondly, how far it must be inhabited; and, thirdly, as to the person to be deemed the owner of it; for the ownership must be correctly stated in the indictment.

Every house for the dwelling and habitation of man is taken to be a mansionhouse in which burglary may be committed. (a) And a portion only of a building may come under this description. Thus where, upon an indictment for burglary, it appeared that the prosecutor rented only certain rooms of a house, namely, a shop and parlor, in which the burglary was committed, but that the owner did not inhabit any part of the house, and only occupied the cellar, it was holden that the shop and parlor were to be considered as the mansion-house of the prosecutor. (b) And sets of chambers in a college, or an inn of court, are to all purposes considered as distinct dwelling-houses; being often held under distinct titles, and, in their nature and manner of occupation, as unconnected with each other, as if they were under separate roofs. (c) A loft, situated over a coach-house and stables, in a public mews, and converted into lodging-rooms, has also been holden to be a dwelling-house. The prosecutor, who was coachman to a lady, rented the rooms at a yearly rent; but he had never paid any rent; and the rooms were not rated in the parish books as dwelling-houses, but as appurtenances to the coach-house and stables the way to the coach-house and stables was down a passage out of the public mews, to a staircase which led to these rooms, and the entrance to which staircase was through a door, which was never fastened, but there was a door at the top of the staircase to the rooms, which was locked at night, and was broken by the prisoner. It was contended, on behalf of the prisoner, that these rooms, which probably were originally intended as mere hay-lofts, did not, in contemplation of law, form such mansions or dwelling-houses, as to become the subject of burglary; but the objection was overruled by the Court, who thought that the circumstance

(v) Reg. v. Davis, 6 Cox C. C. 368, Gurney, (w) 1 Hale 551; 4 Blac. Com. 226.

(y) 1 Hale 555.

(a) 3 Inst. 64.

Com., after consulting Cresswell, J.
(x) Ante, vol. 1, p. 49, et seq.
(z) 1 Hale 555, 556.

(b) Rogers's case, 1 Leach 89, 428; 2 East P. C. c. 15, s. 19, p. 506.

The points res

pecting different mansions in the same house, will be considered presently, in treating of the ownership of the mansion-house.

(c) 1 Hale 522, 556; 1 Hawk. P. C. c. 38, s. 18; Evans' case, Cro. Car. 473; 4 Blac. Com. 225; 2 East P. C. c. 15, s. 17, p. 505.

[*16

of these rooms being situated over the coach-house and stables, would not alter the nature of the case; and that they were, to all intents and purposes, the habitation and domicile of the prosecutor and his family.(d) Burglary, however, cannot be committed by breaking into any inclosed ground, or any booth, or tent, erected in a market, or fair, though the owner may lodge therein; for the law regards thus highly, nothing but permanent edifices; and the lodging of the owner in so frail a tenement no more makes it burglary to break it open, than it would be to uncover a tilted wagon in the same circumstances.(e)

Where, however, a permanent building of mud and brick on the Down at Weybill, which was only used as a booth, for the purposes of the fair, for a few days in the year, had wooden doors, and windows bolted inside, and the prosecutor rented it for the week of the fair, and he and his wife slept there every night of the fair, during one night of which the offence was committed; it was held that this was a sufficient dwelling-house for the purpose of burglary.(ƒ)

The mansion or dwelling-house, in which burglary might be committed, was held formerly to include the outhouses, such as warehouses, barns, stables, cowhouses, or dairy-houses, though not under the same roof, or joining contiguous to the dwellinghouse, provided they were parcel thereof. (9) And any outhouse within the curtilage, or same common fence, as the mansion itself, was considered to be parcel of the mansion, upon the ground that the capital house protected and privileged all its branches and appurtenants, if within the curtilage or homestall.(h) But the 24 & 25 Vict. c. 96, s. 53, enacts, that "no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house for any of the purposes of this Act, unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and enclosed passage leading from the one to the other."() But the breaking and entering any building within the curtilage of a dwelling-house, and stealing therein, is subjected to a higher punishment than simple felony by another

(d) Turner's case, cor., Gould and Buller, Js.; and Perryn, B., 1 Leach 305; 2 East P. C. c. 15, s. 9, p. 492, and the judges afterwards were of opinion that this was a dwellinghouse.

(e) 1 Hale 557; 1 Hawk. P. C. c. 18, s. 35; 4 Blac. Com. 226.

(f) Rex v. Smith, 1 M. & Rob. 256, Park, J. A. J., and Littledale, J.

(g) 3 Inst. 64; 1 Hale 558; Sum. 82; 1 Hawk. P. C. c. 38, s. 21; 4 Blac. Com. 225.

(h) 1 Hale 558, 9; 1 Hawk. P. C. c. 38, s. 25; 4 Blac. Com. 225; 2 East P. C. c. 15, s. 10, p. 493.

(i) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 13, and 9 Geo. 4, c. 55, s. 13 (I). See my note to the Crim. L. Acts, p. 144, 2d ed.

To break and enter by night into a store-house in which no one sleeps, and which has no internal communication with the dwelling-house, and is unconnected with it, except by a fence, is not burglary: State v. Ginns, 1 N. & M C. 583. Every house for the dwelling and habitation of man is taken to be a mansion-house, wherein burglary may be committed. So all out-houses, such as barns, stables, dairy-houses, and offices attached to the mansion-house proper, and intended for the comfort and convenience of the owner, to be used in housekeeping and occupied with the dwelling-house, are in legal signification part and parcel thereof, and included therein. An out-house, however, though within the curtilage, is not a part or parcel of the mansion-house, unless it be used by the family, or some part of it, and for purposes designed to promote the comfort, enjoyment and ease of those engaged in housekeeping. A house in which no member of the family slept, used for the sale of goods, is not part and parcel of the mansion-house, though within thirty feet of it and within a common enclosure: Armour v. State, 3 Humph.

379.

Where there is no interior communication between different parts of the same building, which are separately occupied, the parts are to be regarded as separate buildings: State v. Toole, 29 Conn. 342. A two-storied house, of which the front room on the first floor was used as a store-house and the back room as a sleeping room, is a dwellinghouse: Ex parte Vincent, 26 Ala. 145.

Burglary may be committed in a shop which is under the same roof with, and nearly surrounded by rooms occupied by the family, though there be no communication from the latter to the former without going out of doors: People v. Snyder, 2 Parker C. R. 23; Ex parte Vincent, 26 Ala. 145. And see also, Pitcher v. People, 16 Mich. 142; State v. Jenkins, 5 Jones (Law) 430; Hollister v. Comm., 10 P. F. Smith 103; People v. Parker, 4

Johns. 224.

section of the same statute, which will be more particularly mentioned in a subsequent chapter.(j)

In some cases, a part of a mansion-house may be so severed from the rest, by being let to a tenant, as to be no longer a place in which burglary can be committed. Thus, though a shop may be, and usually is, a parcel of the dwelling-house to which it is attached; yet if the owner of the dwelling-house let the shop to a tenant who occupies it by means of a different entrance from that belonging to the dwellinghouse, and carries on his business in it, but never sleeps there, it is not a place in which burglary can be committed, if there be no internal communication with the other part of the house; for it is not parcel of the dwelling-house of the owner, who occupies the other part, being so severed by lease; nor is it the dwelling-house of the lessee, when neither he nor any of his family ever sleep there.(k) But *17] if there be an internal *communication, burglary it seems may be committed. Thus, where a mau let part of his house, including a shop, to his son, and there was a distinct entrance into the part so let, but a passage from the son's part led to the father's cellars, and they were open to the father's part of the house, and the son never slept in the part so let to him, it was held, upon a case reserved, after a conviction for burglary in the shop, laid to be the dwelling-house of the father, that the conviction was right, upon the ground that the part of the house let to the son continued to be part of the dwelling-house of the father, by reason of the internal communication.() Where a pauper hired a house and garden for a year, and held the same from 1812 to 1821, but during the last four years let to a lodger one of the rooms on the ground floor, which communicated with the yard appurtenant to the house by an outer door, and with the adjoining rooms of the house by an inner door, of which doors the lodger kept the keys, and he occupied nothing but the room; Lord Tenterden, C. J., said, "It is said that the lodger held a part distinct from the rest, so that a burglary committed in that part might, in an indictment, be laid to have been in the dwelling-house of the lodger; I think, however, that that proposition is not established by the facts stated. It is said, that putting the key of the inner door into the hands of the lodger was the same thing as if there was a brick wall between his and the adjoining room. If, indeed, it had been stated that the key was delivered to the lodger for the express purpose of preventing the communication between the different apartments, there would be more weight in the argument. But the key may have been delivered to him for the purpose of enabling him to enter either way; and if that was the object, then he had not any distinct dwelling-house. I rather infer from the facts stated, that that was the object for which the key was delivered; and if so, then the pauper held the whole house, and it is to be considered as one entire tenement; and in that case a burglary committed in the part occupied by the lodger must have been laid to have been in the dwellinghouse of the pauper."(m)

If the lessee, or his servant, should usually, or often, lodge at night in a shop or other premises severed from the house, it would then be the mansion or dwellinghouse of such lessee, in which burglary might be committed.(n)

A case was put upon the old law of burglary, whether, if the owner and occupier of a dwelling-house should let a part of it, namely, a chamber and a cellar, to a tenant, the only passage to the cellar being out of the street, and the cellar should be broken open in the night, it would be burglary; and it was supposed that it would not, on the ground that the cellar must be considered as severed by the lease, and had no communication with the rest of the house.(0) Upon this, however, it was observed, that the cellar would be no more severed from the house by the lease than the chamber, in which a burglary might be committed, *and laid to be in the mansion of the owner and occupier of the dwelling-house, there being but one (j) Post, chap. 5.

*18]

(k) 1 Hale 557, 558; Kel. 83, 84; 4 Blac. Com. 225, 226; 2 East P. C. c. 15, s. 20, p. 507.

(1) Rex v. Sefton, MS, Bayley, J., and R. & R. 202.

(m) Rex v. North Collingham, 1 B. & C. 578 (8 E. C. L. R.), and see Rex v. Great Bolton, 8 B. & C. 71 (15 E. C. L. R.); Rex v. Ditcheat, 9 B. & C. 176 (17 E. C. L. R.); Rex v. Macclesfield, 2 B. & Ad. 870 (22 E. C. L. R.).

(n) 1 Hale 558.

(0) Kel. 83, 84.

common entrance to him and the lodger. But it was admitted, that if the cellar alone were let, clearly no burglary could be committed in it.(p) And this distinction seems fully to have been adopted in a case where the prisoners were convicted of a burglary in the house of T. Smith. Smith was the owner of a house, in which he resided, and to which house there was a shop adjoining, built close to the house; but there was no internal communication between the house and the shop, and no person slept in the shop, and the only door to the shop was in the court-yard before the house and the shop, which yard was inclosed by a brick wall, three feet high, including both the house and shop. Smith let the shop, together with some apartments in the house to Hill, from year to year, at a rent. There was only one common door to the house, which communicated as well to Smith's as to Hill's apartments. A gate, or wicket, fastened by a latch in the wall of the court-yard, next the road, served as a communication both to the house and shop. The burglary was committed in the shop. And upon objection that that could not be said to be the dwellinghouse of Smith, the point was referred to the judges, who were all of opinion that the indictment was well laid, in describing it to be the dwelling-house of Smith, who inhabited in one part, it being within the same building, and under the same roof; and there being but one outer door, especially as it was within one curtilage or fence; and that the shop being let with a part of the house inhabited by Hill, still continued to be part of the dwelling-house of Smith, although there was no internal communication between them. But it was admitted, that if the shop had been let by itself, Hill not dwelling therein, burglary could not have been committed in it; for then it would have been severed from the house.(q)

It was observed in a former edition, that it should seem that no burglary could now be committed in such cellar as that above mentioned, (r) whether it were let alone or together with the chamber, as the late act requires that there should be a communication between any building broken into and the dwelling-house, in order to constitute burglary; but this position seems to be at variance with the following case, in which it was held that a room in a dwelling-house, occupied therewith, and under the same roof, is to be deemed part of the dwelling-house, though it has a separate outer door, and there is no internal communication with the rest of the house. The prisoner was indicted for burglary in the house of Swinton: the house consisted of two long rooms, another room used as a cellar and wash-house, on the ground floor, and of three bed-rooms up stairs, one of them over the wash-house; the *bed-room over the house place communicated with the bed-room over the washhouse, but there was no internal communication between the wash-house and any [*19 of the other rooms in the house; the whole building was under the same roof; the door of the wash-house opened into a back yard. The prisoner broke into this washhouse, and was breaking through the wall between the wash-house and the house place, when he was detected. The provision in the 7 & 8 Geo. 4, c. 29 s. 13, appearing to apply to buildings within the curtilage, other than the dwelling-house, the question whether the wash-house was, for the purpose of burglary, part of the dwelling-house, was submitted to the judges, who differed in opinion upon it, and seven of them thought that it was part of the dwelling-house, but the other five that it was not, and the conviction was affirmed. (s)

Upon an indictment for burglary, it was proved that behind the dwelling-house there was a pantry; to get to the pantry from the dwelling-house it was necessary to

(p) 2 East P. C. c. 15, s. 20, p. 507. And see Rex v. Gibson, 1 Leach 357; 2 East

508.

(9) Rex v. Gibson, 2 East P. C. c. 15, s. 20, p. 508; 1 Leach 357. Where the prisoner entered a loft, beneath which were four apartments, inhabited as a dwelling-house, but which did not communicate with the loft in any manner whatever; and on the side of the dwelling-house was a shop, which was not used as a dwelling, and which did not communicate with the four chambers; between this shop and the loft there was a communication by a ladder; the dwelling and shop both opened into the same fold; Holroyd, J., on the authority of Rex v. Gibson, held the loft to be a dwelling-house: Thompson's

case, 1 Lew. 32.

(r) Ante, p. 17.

(s) Rex v. Burrowes, R. & M. C. C. R. 274. See Reg. v. Mayor of Eye, 9 A. & E. 67 (36 E. C. L. R.).

pass through the kitchen, into a passage; at the end of the passage there was a door, and outside the door, on the left hand was the door of the pantry; when the passage door was shut, the pantry door was excluded and open to the yard. But the roof or covering of the passage projected beyond the door of the passage, and reached as far as the pantry door. There was no door communicating directly between the pantry and the house, and the two were not under the same roof. The roof of the pantry was "tea-fall" and leant against the wall of an inner pantry, in which there was a latchet window, common to both, and which opened betwixt them, but there was no door of communication between them. The inside pantry was under the same roof as the dwelling-house. The prisoners entered the outer pantry by a window, which looked towards the yard, having first cut away the hair-cloth which was nailed to the window frame. For the prisoners it was submitted, that the pantry was not a part of the dwelling-house within the description contained in the 7 & 8 Geo. 4, c. 29, s. 13. For the prosecution it was contended, that as there was a direct communication between the outer pantry and the inner, by means of the latchet window, and the inner pantry was under the same roof as the dwellinghouse, the outer pantry must be considered a part of the dwelling-house, as much as the inner; and further, that as the roof, or covering of the passage, extended beyond the door of the passage, and actually formed a continuous covered way, from the dwelling-house to the outer pantry, the outer pantry must be considered as communicating with the dwelling-house, by means of a covered and inclosed passage. Taunton, J., after looking carefully into the act of Parliament, was of opinion, that the pantry was not a part of the dwelling-house, it not being under the same roof, nor included within the passage by which it was approached and consequently, that no burglary was committed by the breaking and entering therein.(t)

Upon an indictment for burglary, it appeared that the prisoner broke into the *20] dairy of the prosecutor; this dairy adjoined a kiln; one of the walls of the kiln supporting one end of the dairy, and the kiln adjoining the dwellinghouse, one end of the kiln being supported by one of the walls of the dwellinghouse; there was no internal communication from the dwelling-house to the dairy; and to get from the dwelling-house to the dairy a person must go by a door from the dwelling-house into the yard, and from the yard by another door into the dairy. The kiln and the dairy were not under the same roof with the dwelling-house, and the roofs of the kiln and dairy were lower than the roof of the dwelling-house. It was objected that the dairy was not part of the dwelling-house so as to be the subject of burglary by reason of the 7 & 8 Geo. 4, c. 29, s. 13; it was answered that that section applied only to buildings, which were separated from the dwellinghouse, such as barns and the like. If a dairy were under a dwelling-house, and the only way to it was by a cellar flap, or there was a room in a house, which could only be entered by a door at the outside, the cellar of the room would still be parts of the dwelling house. But Wilde, C. J., held that this dairy was not part of the dwelling-house, so that a burglary could be committed in it.(u)

Upon an indictment for stealing in a dwelling-house, it appeared that the place where the felony was committed was a bed-room, over a stable, between which and the prosecutor's house there was not any direct communication; there was a washhouse under the same roof as the house, though there was no internal communication from the one to the other; but the stable was a separate building, neither under the same roof, nor communicating with it by means of any other building, and it was held that this was not a stealing in the dwelling-house. (v)

A building separated from the dwelling-house by a public road, was holden not to be parcel of the dwelling-house, though the road was very narrow, and the dwellinghouse and building were held by the same tenure, and some of the offices necessary to the dwelling-house adjoined to such building, and though there was an awning which extended to it from the dwelling-house; but they were not connected by any common fence or roof. But it was also holden, that if such building were made a sleepingplace for any of the servants of the dwelling-house, it might be deemed a distinct (1) Somerville's case, 2 Lew. 113.

(u) Reg. v. Higgs, 2 C. & K. 322 (61 E. C. L. R.).

(v) Rex v. Turner, 6 C. & P. 407 (25 E. C. L. R.), Vaughan, B.