cepting these rooms. The office was broken open, and the indictment stated it to be the governor's dwelling-house; but on a case reserved, the judges held the description wrong.(v)

In an indictment for burglary the house and goods stolen were described as the dwelling-house and goods of the guardians of the poor of the Pontypool Union in one count, and of T. Perkins in another, and it appeared that the workhouse of the Pontypool *Union had been broken into in the night, and goods provided for [*34 the poor stolen therefrom; Platt, B., held that the house was properly decribed in the first count.(w)

On an indictment for stealing plate, the goods of T. Howse, in his dwelling-house, it appeared that Howse was the house-steward of the Junior United Service Club, and lived and slept in the house; he stated that he had the charge of the plate, and was responsible for it; he was appointed by the committee, and there were minutes of the appointment, and he had given a bond to the club; but neither the bond nor the minutes were produced. After the business of the club was over, the plate was delivered to the care of the under-butler, who was appointed by the club, and put into a regular strong closet in the pantry. The plate was stolen from a table in a room of the club by the prisoner, who was a member of the club. It was held that Howse was merely a servant of the club, and therefore the indictment was wrong in alleging the club to be his house, and the plate to be his property.(x)

Where persons are abiding in a house as guests, or by sufferance, or otherwise, having no fixed or certain interest in any part of it, and a burglary is committed in any of their apartments, the indictment should lay the offence as in the mansion of the proprietor of the house.(y) So that if the chamber of a guest at an inn be broken open, it must be laid in the indictment to be the mansion house of the innkeeper.(z) It is indeed said, that if A., a lodger in an inn, goes to his chamber to bed, and his door is latched or locked, and afterwards in the night he rises, opens his chamber door, steals goods in the house, and goes away, it may be a question whether this be a burglary; and it is also said, that it seems it would not, because A. had a kind of special interest and property in his chamber, and therefore that the opening of his own door was no breaking of the innkeeper's house. (a) But though this is the inclination of the opinion of a very great lawyer, the foundation on which it proceeds cannot easily be reconciled with the doctrine which he admits in the same page, and also in a subsequent part of his work, namely, that if A. had opened the chamber of B., another lodger in the inn, to steal his goods, it would have been burglary; and that though a lodger has a special interest in his chamber, yet a burglary committed in it must be laid as in the mansion-house of the innkeeper (b) And it has been remarked, that this doctrine is also at variance with the reasoning, in a case subsequently decided, which supposes that a guest has not even the possession of a room in an inn for himself, but that it remains still in the possession of the host. (c)

In this last mentioned case, the prosecutor, who was a Jew pedlar, came to a public-house to stay all night, and fastened the door of his bed-chamber: when the prisoner, pretending to the landlord that the prosecutor had stolen his goods, under this pretence, with the assistance of the landlord and others, forced open the [*35 chamber door with intent to steal the goods mentioned in the indictment; and the prisoner accordingly stole them; Adams, B., doubting whether the bed-chamber could properly be called the dwelling-house of the prosecutor, as stated in the indictment, the case was submitted to the judges. They all thought, that though the prosecutor had for that night a special interest in the bed-chamber, yet that it was merely for a particular purpose, namely, to sleep there that night as a travelling

(v) Rex v. Wilson, MS., Bayley, J., and R. & R. 115.

(w) Reg. v. Frowen, 4 Cox C. C. 266. Platt, B., seems to have thought that the house was wrongly described in the second count, but that the goods were, for the purpose of this indictment, the goods of Perkins; but quære the latter point.

(z) Reg. v. Ashley, 1 C. & K. 198 (47 E. C. L. R.), Law, Recorder.

(y) 1 Hawk. P. C. c. 38, s. 26.

(a) Ibid. 554.

(2) 1 Hale 557.

(b) 1 Hale 554, 557.

(c) 2 East P. C. c. 15, s. 15, p. 503, where the learned writer says, that this deserves to be well weighed before any final resolution upon the point.

guest, and not as a regular lodger; that he had no certain and permanent interest in the room itself, but that both the property and the possession of the room remained in the landlord, who would be answerable civiliter for any goods of his guest that were stolen in that room, even for the goods then in question, which he could not be, unless the room were deemed to be in his possession. They thought also, that the landlord might have gone into the room when he pleased, and would not have been a trespasser to the guest: and that, upon the whole, the indictment was insufficient.(d)

The landlord in this case does not appear to have been privy to the felonious intent of the prisoner; but, on the contrary, was imposed upon by him, and induced to assist in breaking open the chamber, upon the supposition that the guest within it had been guilty of felony; but even if the landlord had been an accomplice in the act of the prisoner, it seems that his offence would not have been burglary; for though it has been said that if the host of an inn break the chamber of his guest in the night to rob him it is burglary, (e) that doctrine is questioned; and it was well observed, that there seems to be no distinction between that case and the case of an owner residing in the same house, breaking the chamber of an inmate having the same outer door as himself, which would not be burglary.(ƒ)

If the owner of a house suffer a person to live in it rent free, it may be stated to be that person's house: he is tenant at will. The lessee of a house suffered his sonin-law to live in it, who failed and left it; but one of the son-in-law's servants continued in it. The lessee died, and the house was given up to the landlord, whose steward suffered the servant to continue in the house, and the only goods in it belonged to the servant. Upon an indictment for breaking the house in the day time, the house was laid to be the servant's, and upon the point being saved, the judges thought that it was rightly laid, as the servant was there not as servant, but as tenant at will.(g) And it has been decided, that if the owner of a cottage lets one of his workmen, with his family, live in the cottage, free of rent and taxes, and he lives there principally, if not wholly for his own benefit, it may be described as the workman's cottage. One Gent, a workman in a colliery, had fifteen shillings a week, and a cottage for himself and family, free of rent and taxes: he occupied chiefly for his own benefit, and not for his master's. An indictment for burglary described this as the dwelling-house of Gent, and Holroyd, J., thought that it might *be considered, as to third persons, either as the master's house or the work*36] man's and the point being saved, the judges held that it might be described as the workman's and that the conviction was right.(h)

On an indictment for burglary in the house of J. West it was proved that he had become insolvent, and his daughter had taken the house in which the burglary was committed, and there he and his wife lived, the latter carrying on a business in connection with the daughter, who resided many miles distant; the furniture belonged to the daughter, but the father paid the taxes; and Erle, J., held that it was rightly laid as the dwelling-house of the father.(i)

Though different opinions appear to have been formerly entertained upon the point, whether in the case of burglary in the hired apartment of an inmate it should be laid down to be committed in the mansion-house of the inmate or of the owner ;(j) it is now settled, that if the owner who lets out apartments in his house to other persons sleeps under the same roof, and has but one outer door at which he and his lodgers enter, all the apartments of such lodgers are parcel of the one dwelling-house of the owner ;(k) but that if the owner does not himself dwell in the

(d) Prosser's case, 2 East P. C. c. 15, s. 15, p. 502, Adams, B.

(e) Dalt. c. 151, s. 4.

(f) 2 East P. C. c. 15, s. 15, p. 502; Kel. 84.

(g) Rex v. Collett, MS., Bayley, J., and R. & R. 498.

(h) Rex v. Jobling, MS., Bayley, J., and R. & R. 525. See ante, p. 31, and the cases, post, tit. Arson.

(i) Reg. v. Bridges, 1 Cox C. C. 261.

(j) 1 Hale 556; Kel. 83, 84; 1 Hawk. P. C. c. 38, s. 27; Bac. Ab. tit. Burglary (E), notes; Rex v. Ditcheat, 9 B. & C. 176 (17 E. C. L. R.).

(k) Where a lodger occupied one room in a house, the landlady keeping the key of the outer door, it was held that this could not be described as his dwelling-house: Monks v.

same house, or if he and his lodgers enter by different outer doors, the apartments so let out are the mansion, for the time being, of each lodger respectively.()

*

The following cases were decided in conformity to this rule. A burglary was committed in a house which belonged to one Nash, who did not live in any part of it himself, but let the whole of it out in separate lodgings from week to week; and an inmate named Jordan had two apartments in the house; namely, a sleepingroom up one pair of stairs, and a workshop in the garret; which he rented by the week as tenant at will to Nash. The workshop was the room broken open by the prisoner. And upon a case referred to the judges for their consideration, whether the indictment had properly charged the burglary in the dwelling-house of Jordan, ten of them were of opinion, that as Nash, the owner of the house, did not inhabit any part of it, the indictment was good. (m) So upon an indictment on the 3 & 4 W. & M. c. 9 (now repealed), for robbery in a dwelling-house, where it [*37 appeared that the house was situated in a mews, and the whole of it let out in lodgings to three families, with only one outer door, which was common to all the inmates; one of whom rented the parlor on the ground floor, and a single room up one pair of stairs; and the parlor on the ground floor was the part of the house broken open; all the judges held that the offence was well laid in the indictment, as having been committed in the dwelling-house of the particular inmate. (n). And in a later case it was held, that if two or more rent of the owner different parts of the same house, so as to have amongst them the whole house, and the owner does not reserve or occupy any part, the separate parts of each may be described as the dwelling-house of each. Choice rented of the landlord a shop and other rooms in a house, and Ryan rented in the same house another shop and all the other rooms of the landlord also; the staircase and passage were in common, and the shops opened into the passage, which was enclosed, and was part of the house; all the taxes were paid by Choice. The prisoner broke open the passage door of Ryan's shop, and was indicted for burglary in the dwelling-house of Ryan: and upon the point being saved, the judges had no doubt but that this was rightly described as the house of Ryan (0) Consistently also with this rule, an occupation of some part of the house by the owner, which does not amount to an inhabiting, will not make the house such as may be stated to be his dwelling-house in an indictment for burglary. The owner of a house let the whole of it in apartments to different persons, and did not inhabit any part himself. One of the inmates rented the bottom part of the house, namely, a shop, a parlor, and a cellar (which ran underneath the shop and parlor), at a yearly rent but the owner had taken back the cellar for the purpose of keeping wood and lumber in it, and made an allowance to the inmate of ten shillings a year, which was deducted from the rent. The entrance to the house was by a common outer door from the street. The shop and parlor were broken open. And upon an indictment

Dykes, 4 M. & W. 567, but it would be otherwise if a house were divided into several chambers with separate outer doors: Ibid.; Fenn v. Grafton, 2 B. N. C. 617 (29 E. C. L. R.); 2 Scott 56.

(1) 4 Blac. Com. 225; L‹e v. Gansel, Cowp. 1; 2 East P. C. c. 15, s. 18, p. 503, adopting the doctrine in Kel. 83, 84. And in Rogers's case, 1 Leach 90, is the following note by the editor: "I have been favored with the following opinion of Lord C. J. Holt, upon this subject, from the manuscript notes of the late Lord C. B. Parker.-If inmates have several rooms in a house, of which rooms they keep the keys, and inhabit them severally with their families, yet, if they enter into the house 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. Mr. Tanner, an ancient clerk of the court, said, that the constant opinion and practice had been according to the opinion of Lord C. J. Kelynge, which opinion was cited by Lord C. J. Holt upon this occasion at the Old Bailey October Sessions, 1701."

(m) Carrell's case, 1 Hawk. P. C. c. 38, s. 32; 1 Leach 237; 2 East P. C. c. 15, s. 18, p. 506. The judges relied on Rogers's case, 1 Leach 90, post (p). The two other judges (Eyre, B., and Buller, J.), who thought that it was not the mansion-house of Jordan, were of opinion that it might have been laid to have been the mansion-house of Nash; to which some of the other judges inclined, if it were not the mansion of Jordan. (n) Trapshaw's case, 1 Hawk. P. C. c. 38, s. 30; 1 Leach 427; 2 East P. C. c. 15, s. 18, p. 506.

(0) Rex v. Bailey, MS., Bayley, J., and R & M. C. C. R. 23. 9 Ad. & E. 670 (36 E. C. L. R.).

See Reg. v. Mayor of Eye,

for burglary, laying the offence to have been committed in the dwelling-house of the inmate, nine of the judges agreed that this was proper; that it could not have been laid to be the dwelling-house of the owner, as he did not inhabit any part of it, but only occupied the cellar; but that it would have been otherwise if the owner had occupied any part of the house.(p)

Where there is an actual severance of a house in fact, by a partition or the like, all internal communication being cut off, and each part being inhabited by several occupants, separate and distinct mansions in law will be constituted.(g) And this may be, though *the rent and taxes of the whole premises be paid jointly out *38] of the partnership fund of the several occupants.

The prisoner was indicted for burglary and larceny in the dwelling-house of Smith and Knowles. It appeared that these persons were in partnership, and lived next door to each other. The two houses had formerly been one house only, but had been divided for the purpose of accommodating the respective families of each partner, and were then perfectly distinct and separated from each other, there being no communication from the one to the other without going into the street. The housekeeping, servants' wages, &c., were paid by each partner respectively, but the rent and taxes of both the houses were paid jointly out of the partnership fund. The prisoner was servant to Smith, and it was in his house that the burglary was committed. It was objected upon these facts, that although the two houses were the joint property of both the partners, yet they were the separate and respective mansions of each, and, therefore, that the burglary ought to have been laid as committed in the house of Smith only. And the Court held the objection to be wellfounded.(r)

In a more recent case also, it appears to have been ruled that a contribution by one of two partners of a proportion of the rent and taxes, for certain premises used in the partnership concern, did not give him such a joint possession of those premises as to make it necessary to state them in the indictment as the dwelling-house of both the partners. The indictment was for stealing in the dwelling house of Moreland; and the evidence was, that Moreland and one Gutteridge were co-partners; Moreland was the lessee of the whole premises, and paid all the rent and taxes for them, and Gutteridge had an apartment in the house, and allowed Moreland a certain sum for board and lodging, and also a certain proportion of the rent and taxes for the shop and warehouses. The felony was committed in the shop. It was contended that Gutteridge, under these circumstances, had a joint possession of the shop and warehouses, and that the indictment should have been framed accordingly, but, on a case reserved, the judges were of opinion that the indictment was right (s)

If a house be let to A. and a warehouse under the same roof, and with an inner communication, to A and B., the warehouse cannot be described as the dwellinghouse of A. The indictment was for a burglary in the dwelling-house of Richards; and the breaking was into warehouses under the same roof with Richards's dwellinghouse, and communicating with it internally; but the dwelling-house was let to Richards alone, and the warehouses were let to him and his brother, who lived else*39] where. Upon a case *reserved, the judges held that the warehouses could not be deemed part of Richards's dwelling-house, as they were let to him and his brother, though by the same landlord, and that the conviction was therefore wrong.(t) (p) Rogers's case, 1 Hawk. P. C. c. 38, s. 29; 1 Leach 89; 2 East P. C. c. 15, s. 19, p. 506, 507.

(q 2 East P. C. c. 15, s. 17, p. 504.

(r) Rex v. Jones, 1 Hawk. P. C. c. 38, s. 34; 1 Leach 537; 2 East P. C. c. 15, s. 17, p. 504. In Tracy v. Talbot, 2 Salk. 532 (a case upon a distress for a poor's rate), it was ruled by Holt, C. J., that if two several houses are inhabited by several families who make and have but one common avenue or entrance for both; yet, in respect of their original, both houses continue rateable severally, for they were at first several houses; and if one family goes, one house is vacant. But if one tenement be divided by a partition, and inhabited by different families, namely, the owner in one and a stranger in another, these are several tenements, severally rateable while they are thus severally inhabited; but, if the stranger and his family go away, it becomes one tenement. (s) Parminter's case, 1 Leach 537, note (a).

Rex v. Jenkins, MS., Bayley, J., and R. & R. 244. See Rex v. Hancock, R. & R. 171, post.

As, according to the rule which has been stated as now established upon this subject, where the owner of a house lets out apartments in it to lodgers, but continues to inhabit some part of the house himself, and has but one outer door common to him and his lodgers, such apartments must be considered as parcel of his dwellinghouse ;(u) it will be a necessary consequence that if he should break open the apartments of his lodgers in the night and steal their goods, the offence will not be burglary, on the ground that a man cannot commit burglary by breaking open his own house.(v)

III. The definition of burglary now leads us to the time at which the offence must be committed. This time must be the night, for in the day-time there can be no burglary.(w) It appears that anciently the day was accounted to begin only at sun-rising, and to end immediately upon sun-set; but it was afterwards settled as the better opinion that if there were daylight or twilight enough begun or left whereby the countenance of a person might be reasonably discerned, it was no burglary.(x) But this did not extend to moon-light, for then midnight house-breaking might be no burglary.(y) Besides, the malignity of the offence does not so properly arise 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.(z)1

But the 24 & 25 Vict c. 96, s. 1, provides that, "for the purposes of this Act, the night shall be deemed to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeeding day."()

The breaking and entering need not be both done in the same night for if thieves break a hole in a house one night, with intent to enter another night and commit felony, and come accordingly another night and commit a felony through the hole they so made the night before, this seems to be burglary, for the breaking and entering were both noctanter, though not the same night.(b) And this doctrine was recognized in a late case. The prisoner broke the glass of the prosecutor's side-door on the Friday night, with intent to enter at a future time, and actually entered on the Sunday night; and upon a case reserved, the judges held this to be burglary, the breaking and entering being both by night, and the breaking being with intent afterwards to enter.(c) It is said, however, that if the breaking be in the day-time and the entering in the night, or the breaking in the night, and entering in the day, it will not be burglary (d) But upon this position it has been remarked, that the authority upon which it appears to have proceeded (e) [*40 does not fully prove the point for which it is cited, but only furnishes a resolution to the effect, that if the thieves enter in by night at a hole in the wall, which was there before, it is not burglary, without stating who made the hole, and of course not coming up to the case of a hole made by the thieves themselves in the day-time, with intent to enter more securely at night (f) And it is observable that it is elsewhere given as a reason why the breaking and entering, if both in the night,

(u) Ante, p. 35.

(w) 4 Blac. Com. 224.

(v) 2 East P. C. c. 15, s. 18, p. 506. Ante, p. 35.

(z) 3 Inst. 63; 1 Hale 55, 551; Sum. 79; 1 Hawk. P. C. c. 38, s. 2; Bac. Ab. tit. Burglary (D); 4 Blac. Com. 224; 2 East P. C. c. 15, s. 21, p. 509.

(a) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 4, the words in italics being substituted for the words, "so far as the same is essential to the offence of burglary," as there are other cases besides burglary to which this clause extends.

(b) 1 Hale 551; 4 Blac. Com. 226. Ante, p. 14.

(c) Rex v. Smith, MS., Bayley, J., and R. & R. 417.

(d) 1 Hale 551.

(e) Crompt. 33 a, ex 8 Ed. 4, cited by Lord Hale 551.

(ƒ) Note (k) to 1 Hale 551 (ed. 1800); 2 East P. C. c. 15, s. 21, p. 509.

1 An indictment for burglary may be supported by circumstantial evidence, and it is not necessary to show that the entry could not have been made in the day-time.

The night time consist of the period from the termination of daylight in the evening, to the earliest dawn of the next morning: State v. Bancroft, 10 N. H. 105; Comm. v. Kaas, 3 Brews. 422; Muthard v. State, 10 Ohio St. 363.