three o'clock in the afternoon of the *day on which the offence was charged to *64] have been committed; it was proposed to give evidence of a larceny by the prisoners, of some of the articles mentioned in the indictment, though committed before three o'clock on the day on which they were charged to have entered the house; but the Court refused to receive the evidence. They said, that the charge contained in the indictment of burglariously breaking and entering the house, and stealing the goods, might unquestionably be modified, by showing that the prisoners stole the goods without breaking open the house; but that the charge proposed to be introduced went to connect the prisoners with an antecedent felony committed offence: 2 Hale 245. So if A. commit a burglary in the county of B., and carry the goods into C., if he be acquitted of larceny in C. he may be indicted for the burglary in B.: Ibid. Where an acquittal pleaded in a foreign county has been allowed, as in 41 Ass. 9, it must be intended of an indictment removed out of that county where the prisoner was first indicted 2 Hale 245. The correct rule appears to be that an acquittal in any court whatsoever, which has jurisdiction over the case, is a good bar to any subsequent prosecution for the same crime: 2 Hawk. c. 35, s. 10. And therefore an acquittal for murder at a grand session in Wales may be pleaded to an indictment for the same murder in England: Ibid. So an acquittal of murder before a court of competent jurisdiction in a foreign country is a good bar to an indictment for the same murder in this country: Rex v. Roche, 1 Leach 134; Rex v. Hutchinson, 3 Keb. 785, cited in Beak v. Thyrwhit, 3 Mod. 194; I Show. 6. And it should seem that in all those cases where offences are made triable in two or more counties, as each county has jurisdiction, an acquittal in one would be a good bar to an indictment in the other county. The acquittal, in order to be a bar, must be by verdict on a trial: 2 Hale 246; 2 Hawk. P. C. c. 35, s. 6. A discharge, therefore, by the jury on a coroner's inquest is no bar: 2 Hale 246. But an acquittal through the misdirection of a judge is a good bar: Ibid. So if a court upon a special verdict erroneously adjudge it to be no felony, as long as this judgment is unreversed, the prisoner may plead it in bar to another indictment: Ibid.; but if the judgment be reversed the party may be indicted de novo: Ibid.; Reg. v. Drury, 3 C. & K. 193, for a judgment reversed is the same as no judgment. Great doubts have been entertained whether, if a jury, after the commencement of a trial, were improperly discharged, this would be a bar to another trial. In Conway v. Reg., 1 Cox C. C. 210, the prisoners were indicted for murder, and the jury, after having been locked up for many hours without being able to agree, were discharged by the judge, and a similar proceeding took place at a subsequent assizes, and they were afterwards again put on their trial, and then pleaded the two discharges of the juries, and alleged that they were made without any legal cause whatever. On the part of the Crown the replication stated the trials, the charging of the juries, and that they could not agree after having been locked up for many hours, and after the lapse of more than a reasonable time for the jurors considering their verdict, and that the Court discharged them without any objection by the prisoners or the Crown; and on demurrer to these replications the demurrers were overruled, and the prisoners convicted; but on error three judges held that the juries had been improperly discharged, and therefore reversed the judgment against the prisoners; but Crompton, J., was of a different opinion, and held that a discretionary power was vested in a judge to discharge a jury when it appears to him that they cannot agree, and that that discretion could not be questioned by another Court. In In re Newton, 13 Q. B. 716 (66 E. C. L. R.), on a trial for murder, the jury were locked up from two o'clock in the afternoon till the next morning, and not being likely to agree, were then discharged. At this time all the other business of the assizes was over, and it was the first day of the assizes at the next county, and the duty of the judge called on him to leave the town; and it was held that whether the judge was or was not justified in discharging the jury, the discharge was not equivalent to an acquittal, so far as to determine the original commitment; and strong opinions were given that the discharge, even if improper, could not be pleaded in bar of another trial. But the facts that the business was ended, and that the judge was about to leave the county in discharge of his duty, were considered to distinguish this from the preceding case. In Reg. v. Davison, 8 Cox C. C. 360; 2 F. & F. 250, the prisoner was indicted for indecently assaulting a girl, and the jury having been locked up for a long space of time, and not being likely to agree, and the business of the sessions being ended, they were discharged, and the case having been removed by certiorari to the Central Criminal Court, the prisoner pleaded the discharge of the jury to the indictment, and it was held that this discharge was no bar to the prisoner being tried again. Pollock, C B., and Martin, B., seem to have much relied on this being the case of a misdemeanor; but Hill, J., relied on no such distinction. In Reg. v. Charlesworth, 1 B. & S. 460 (101 E. C. L. R.), it was held that where, in a case of misdemeanor, the jury are improperly, and against the will of the defendant, discharged by the judge, this is not equivalent to an acquittal. It may, therefore, be taken that an improper discharge of a jury in a case of misdemeanor, is no bar to another trial, and it has always been my clear opinion that such a discharge is no bar to another trial in any criminal case whatever. Note by C. S. G.

before three o'clock on the day mentioned, at which time it was clear that they had not entered the house; that the transactions were distinct; and that it might as well be proposed to prove any felony, which those prisoners might have committed in that house seven years before.(ƒ)

Where an indictment has been removed by certiorari, and comes on for trial at Nisi Prius, a plea of autrefois convict cannot be pleaded at Nisi Prius.(ƒƒ) Where a larceny, whether within or ousted of clergy, was charged in the [*65 same indictment with a burglary, it was holden that the prisoner might be found not guilty of the burglary, and convicted of the larceny.(g) Thus, where the prisoners were acquitted of the burglary, upon an indictment for a burglary and larceny, and found guilty of stealing in the dwelling-house to the amount of forty shillings, it was holden that they were excluded from their clergy, though there was no separate count in the indictment on the 12 Ann. c. 7,(h) and the judges were of opinion that the indictment contained every charge that was necessary in an indictment upon that statute.(i)

In this case the finding of the jury was, "not guilty of breaking and entering the dwelling-house in the night, but guilty of stealing the box and money in the dwelling-house:"(j) upon which part of the objection, on behalf of the prisoners was, that they were not excluded from clergy, because the jury had acquitted them of the burglary.(k) And formerly it appears to have been doubted whether, where the words "not guilty of the burglary" were a part of the finding of the jury, the prisoner was not by necessary consequence acquitted of the felony also.(7) But in a more recent case, where the indictment was for a burglary and larceny, and the verdict was not guilty of the burglary, but guilty of stealing above the value of forty shillings in the dwelling-house;" and the entry by the officer was in the same words; the judges held the finding sufficient to warrant a capital judgment. They agreed that if the officer were to draw up the verdict in form, he must do it according to the plain sense and meaning of the jury; and that the minute was only for his future direction.(m)

It has been supposed, that upon an indictment against several persons for a burglary and larceny, the jury could not find one guilty of the burglary and another guilty of the larceny only, upon the same indictment, and the same evidence, as such a finding would show that the offences of the several prisoners were of a distinct nature, and therefore ought not to have been included in the same indictment.(n) But by the opinion of a majority of the judges in a late case, it appears that upon an indictment for burglary and larceny against two, one may plead guilty of the burglary and larceny, and the other be found guilty of the larceny only. Upon an indictment against Moss and two others for burglary and stealing in the dwellinghouse to the value of forty shillings, Moss pleaded guilty to the whole, and the other two were found guilty of stealing in the dwelling-house to the amount of forty shillings, but acquitted of the burglary. A case was saved upon the question *how the judgment should be entered, and seven of the judges thought that [*66 it might be entered against all the three prisoners; against Moss for the burglary and capital larceny, and against the other two for the capital larceny; Burrough, J., and Hullock, B., thought otherwise, but Hullock, B., thought that if a nolle prosequi were entered as to Moss for the burglary, judgment might be entered

(f) Rex v. Vandercomb, 2 Leach 708. (g) Ante, p. 51.

(i) Rex v. Withal, 1 Leach 88.

(f) Reg. v. Maybury, 4 F. & F. 90, Martin, B. (h) Repealed by the 7 & 8 Geo. 4, c. 27.

(3) In the indictment the box was described as containing sixty pounds of money. (k) Rex v. Withal, 1 Leach 88; 2 East P. C. c. 15, s. 28, p. 517.

(1) Conner's case, 1 Leach 36; 2 East P. C. c. 15, s. 28, p. 516.

(m) Hungerford's case, 2 East P. C. c. 15, s. 28, p. 518. Many of the judges thought that an entry, "not guilty of the breaking and entering in the night, but guilty of the stealing, &c.," would be more correct. But it appeared upon inquiry to be the constant course on every circuit in England, upon an indictment for murder, where the party was only convicted of manslaughter, to enter the verdict "not guilty of murder, but guilty of manslaughter;" or, "not guilty of murder, but guilty of feloniously killing and slaying;" and yet murder includes the killing. (n) Rex v. Turner, 1 Sid. 171; 2 East P. C. c. 15, s. 28, p. 519.

against all the three for the capital larceny. The seven judges thought that there might be cases in which, upon a joint larceny by several, the offence of one might be aggravated by burglary in him alone, because he might have broken the house in the night in the absence and without the knowledge of the others, in order to come afterwards and effect the larceny, and the others might have joined in the larceny without knowing of the previous breaking.(0)

Three persons were indicted for burglary, with intent to steal certain articles named in the indictment; the indictment contained only one count. The evidence against two of them was, that they broke and entered, and stole some hens; the evidence against the third was, that he stole a sack of flour, from the same house, in conjunction with the other two, but there was no evidence that he was a party to the burglary. Park, J., thought that upon this indictment the two first could not be convicted of burglary, and the other of larceny. He expressed doubts, but thought the jury had better convict all three of larceny in stealing the sack of flour; he was rather of this opinion, as the stealing the sack of flour, to which the third man was a party, was not in the contemplation of the other two when they committed the burglary, but was an afterthought.(p)

Burglary was at common law a felony within the benefit of clergy ;(q) but a higher punishment was imposed by the provisions of several statutes now repealed. All the former statutes are now repealed, and by the 24 & 25 Vict. c. 96, s. 52, "whosoever shall be convicted of the crime of burglary shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(r)

We have seen that by sec. 1, the night commences at 9 o'clock in the evening, and ends at 6 o'clock the next morning, "for the purposes of this Act."(s)

Sec. 54. "Whosoever shall enter any dwelling-house in the night, with *67] 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 labor, and with or without solitary confinement." (t)

Sec. 98. "In case of every felony punishable under this Act every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this Act (except only a receiver of stolen property) shall, on conviction, be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this Act shall be liable to be indicted and punished as a principal offender." (u)

Sec. 117. "Whenever any person shall be convicted of any indictable misde

(0) Rex v. Butterworth, MS., Bayley, J., and R. & R. 520. An analogous case is the conviction of one for murder and another for manslaughter, on an indictment for murder. See ante, vol. 1, p. 706. C. S. G.

(p) Anonymous, 1 Lew. 36.

(g) 3 Inst. 63, 65; 4 Blac. Com. 228.

(r) This clause is taken from the 7 Will. 4, and 1 Vict. c. 86, s. 3. Burglary accompanied by an assault with intent to murder or wounding, &c., was capital by sec. 2 of that Act; but that punishment is abolished, and it was considered better when that was done to leave the offence of burglary punishable with penal servitude for life, &c., so that the Court might award the punishment according to the particular circumstances of each case; as any enumeration of particular aggravations would probably have left equally aggravated cases unprovided for.

(s) Ante, p. 39. A very idle doubt has been raised whether that section includes burglary, because "night" is not mentioned in s. 52, which is answered: Greaves' Crim. Acts, p. 141, 2d ed. The Act does not extend to Scotland.

(t) It is clear that where, on a trial for burglary, the breaking and committing the felony in the house fail, a conviction may take place of the offence in this section, if the evidence proves that offence.

(u) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 61, and 9 Geo. 4, c. 55, s. 54 (I.). As to the proceedings against accessories, see vol. 1, p. 67, et seq.

meanor punishable under this Act, the Court may, if it shall think fit, in addition to or in lieu of any of the punishments by this Act authorized, fine the offender, and require him to enter into his own recognizances and to find sureties, both or either, for keeping the peace and being of good behavior; and in case of any felony punishable under this Act, the Court may, if it shall think fit, require the offender to enter into his own recognizances, and to find sureties, both or either, for keeping the peace, in addition to any punishment by this Act authorized provided that no person shall be imprisoned under this clause, for not finding sureties, for any period exceeding one year."

Sec. 118. "Whenever imprisonment, with or without hard labor, may be awarded for any indictable offence under this Act, the Court may sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or House of Correction."

Sec. 119. "Whenever solitary confinement may be awarded for any indictable offence under this Act, the Court may direct the offender to be kept in solitary confinement for any portion or portions of his imprisonment, or of his imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year; and whenever whipping may be awarded for any indictable offence under this Act, the Court may sentence the offender to be once privately whipped, and the number of strokes, and the instrument with which they shall be inflicted, shall be specified by the Court in the sentence."

Upon the trial of any offence mentioned in this chapter, the jury may convict of an attempt to commit such offence, and thereupon the prisoner may be punished as if he had been convicted on an indictment for such attempt, under the 14 & 15 Vict. c. 100, s. 9.(v)

*Sec. II.-Being armed, &c., at night, with intent to break into houses, &c. [*68 In order to prevent the commission of felonies in the night, it is provided by the 24 & 25 Vict. c. 96, s. 58, that "whosoever shall be found by night armed with any dangerous or offensive weapon or instrument whatsoever, with intent to break or enter into any dwelling-house or other building whatsoever, and to commit any felony therein, or shall be found 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 of three years, or to be imprisoned for any term not exceeding two years, with or without hard labor." (a)

Sec. 59. "Whosoever shall be convicted of any such misdemeanor as in the last preceding section mentioned, committed after a previous conviction, either for felony or such misdemeanor, shall on such subsequent conviction be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding ten years and not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor.”(b)

Sec. 103. "Any person found committing any offence punishahle, either upon indictment or upon summary conviction, by virtue of this Act (except only the

(v) See vol. 1, p. 1.

(a) This clause is taken from the 14 & 15 Vict. c. 19, s. 1. The distinction between this clause and sec. 54, ante, p. 66, as far as relates to being in a dwelling-house with intent to commit a felony, is this, that under sec. 54 the entry must be proved to have been in the night; but under this clause proof that the prisoner was in the dwelling-house by night with the intent to commit felony is enough, and it is unnecessary to prove whether he entered by day or by night. As to abettors, see ante, p. 67; as to hard labor, &c., see ante, p. 67.

(b) This clause is taken from the 14 & 15 Vict. c. 19, s. 2. See sec. 116, post, Larceny, for the form of indictment and proceedings thereon under this clause. As to abettors, see ante, p. 67; as to hard labor, &c., see ante, p. 67.

offence of angling in the day time), may be immediately apprehended without a warrant by any person, and forthwith taken, together with such property, if any, before some neighboring justice of the peace, to be dealt with according to law." (c)

Sec. 104. "Any constable or peace officer may take into custody, without warrant, any person whom he shall find lying or loitering in any highway, yard, or other place, during the night, and whom he shall have good cause to suspect of having committed, or being about to commit, any felony against this Act, and shall take such person as soon as reasonably may be, before a justice of the peace, to be dealt with according to law."(d)

*On an indictment charging the prisoner with being found by night in

*69] possession of certain implements of house-breaking, to wit, one pair of

pincers, ten keys, one piece of iron, it appeared that the prisoner was found by night in possession of a number of house-door keys and a pair of pincers, all of which were of an ordinary description, such as are commonly used for lawful purposes, but which were capable from their nature of being used for purposes of house-breaking; it was objected that the articles were not any of those mentioned in the 14 & 15 Vict. c. 19, s. 1; but it was left to the jury to say whether the articles might be used for the purpose of house-breaking, and whether, at the time the prisoner was found in possession of them, he intended to use them as instruments of housebreaking, and the jury having found him guilty, it was held that the conviction was right; for any instrument capable of being used for the purpose of housebreaking, where the prisoner has it in his possession for the purpose of housebreaking, was within the statute. (e)

Where on an indictment for having in possession without lawful excuse certain implements of house-breaking, the jury found the prisoner guilty of the possession without lawful excuse, but that there was no evidence of an intent to commit a felony, and the indictment omitted the words "with intent to commit felony;" it was held that the omission did not render the indictment bad, and that it was not necessary to prove an intent to commit a felony.(ƒ)

An indictment alleged that the prisoners were found by night armed with a loaded gun, with intent then to break and enter a building, to wit, a malting, and to commit a felony therein. The prisoners were found in a field adjoining to three separate maltings, and were going in a direction which would lead them to any one of the three. The maltings were in the occupation of three different persons. It was objected that the indictment ought to have stated the ownership of the building, and where it was situate, and, on a case reserved, it was contented that a particular intent must be alleged and proved. Cockburn, C. J., "The first question is, what is the offence created by the Legislature. According to the contention for the Crown, any man found by night with a dangerous or offensive weapon, or some instrument from which it is impossible to doubt that he is going to break into some house or building, is guilty of a misdemeanor. I do not think that is so, and I am of opinion that there must be a definite intention to break into some particular house. As to whether there must be an intention to commit a particular felony, upon that point I say nothing. It is not enough to say that a man intended to break into a house generally. The rules of criminal pleading must not be lost sight of, and it must not be forgotten that there is no opportunity of getting a new trial in criminal cases on the ground of surprise, or that if the defendant had had a better knowledge of what the nature of the offence charged was, he might have been able to meet it. The jury and the prisoner ought to know the *precise offence charged against the prisoner, and as this does not appear on the indict(c) The clause also provides for the issuing of warrants to apprehend and search for stolen goods, &c. See it in the Appendix.

*70]

(d) We have seen that any person "found committing any indictable offence in the night" may be apprehended by any person: 14 & 15 Vict. c. 19, s. 11, vol. 1, p. 648; and if the person liable to be so apprehended assaults the person apprehending him, &c., he is guilty of a misdemeanor by sec. 12 of the same Act, vol. 1, p. 1050.

(e) Reg. v. Oldham, 2 Den. C. C. 472. Maule, J., thought that the Act was wrongly punctuated, and that there ought to have been a comma after picklock, which would bring "keys" within the words of the Act.

(f) Reg. v. Bailey, Dears. C. C. 244.