ment, I think the conviction cannot be sustained." Pollock, C. B., "If a man is found at night with a pair of pistols and burglarious instruments upon him, under circumstances that there can be no doubt that he is out for a criminal purpose, the statute never intended that such a case as that should be the subject of penal servitude." Williams. J., " I think it is necessary to specify the ownership and situation of the premises the defendant intended to break into." Crompton, J., "I think that the indictment is good only in case it shows an intention to break and enter some definite dwelling-house or building, and to commit some definite felony therein."(g)

(g) Reg. v. Jarrald, L. & C. C. C. 301, Bramwell, B., concurred. With all deference it is submitted that this decision is clearly erroneous. The ground on which Cockburn, C. J., rests the decision of the first point is answered by the second clause of the same section; for under it the mere possession, without lawful excuse, of any instrument of housebreaking in the night, constitutes the offence, without any intent to commit any felony at all (Reg. v. Bailey, supra), and this offence is plainly one step further from the attempt to commit a felony than where the intent to commit some felony exists, though the particular felony is not yet fixed. The case put by Pollock, C. B., is clearly within the second clause as far as "burglarious instruments" are concerned, even without the purpose there specified. The very section itself, therefore, negatives the ground on which the decision of first point was rested. It is to be remembered, too, that the 14 & 15 Vict. c. 19, was "an Act for the better prevention of offences," and the preamble recited that "it was expedient to make further provision for the prevention of burglary and other offences in the night;" and how those offences can be better prevented than by nipping the intent in the bud before it has assumed a definite and specific object it is difficult to conceive; and it cannot be doubted that this decision, instead of promoting the object of the Act in this respect, is substantially a repeal of it; for it is hardly conceivable that, in the majority of cases, it will be possible to prove an intent to commit any particular felony.

As to the second point, viz., the rules of criminal pleading, these seem, in this case, to have been misconceived. It is quite a mistake to suppose that these rules require the specification of particulars where it is impracticable to specify them. Wherever this is the case, the rules allow general or other statements instead. The names of the inhabitants of counties or parishes need never be stated. Where the name of an individual is not known, he may be described as unknown; and-what is precisely apposite to the present case-where a criminal purpose is intended, but the offenders have not proceeded far enough to fix the particular individuals to be victimized, they need not be particularly named: thus where a conspiracy was entered into to injure persons who should on a future day purchase stock, it was held that it was unnecessary to specify the particular persons intended to be injured: Rex v. De Berenger, 3 M. & S. 67. And this case has been followed in many subsequent cases. See Reg. v. King, 7 Q. B. 782 (53 E. C. L. R.), in error. These cases are exactly in point with a case like this, where the prisoners intended to commit a felony in one of three buildings, but had not yet made up their minds in which it should be; and if the prisoners in this case had been indicted for conspiring to commit a felony, it is quite clear the particular felony need not have been specified. An indictment for having possession of counterfeit coin with intent to utter it never specifies the person to whom it was intended to be uttered.

This clause was framed partly from the 5 Geo. 4, c. 85, s. 4, under which persons frequenting certain places "with intent to commit felony," are summarily punishable. No objection has ever been taken to any conviction under that Act on the ground that the felony intended was not specified; and in Reg. v. Brown, 17 Q. B. 833 (79 E. C. L. R.); In re Jones, 7 Exch. R. 586; Sewell v. Taylor, 7 C. B. (N. S.) 160 (97 E. C. L. R.); and In re Davis, 2 H. & N. 149, the only statement was, "with intent to commit felony," and the attention of the Court was expressly called, in two of those cases, to this expression; for it was objected that the word "there" ought to have been added to it. It seems, also, to be now settled that, in an indictment for burglary, it is unnecessary to state whose goods the prisoner intended to steal. See ante, p. 44. As to the prisoner being informed by the indictment of the charge he has to meet; practically, the prisoner is much better informed of the charge by the depositions, and, if in any case there be any real doubt as to what the precise charge is, the Court always orders a particular of the charges to be delivered to the prisoner. The above judgments are from 9 Cox C. C. 307.

*71]

*CHAPTER THE SECOND.

OF SACRILEGE, OK BREAKING INTO ANY CHURCH OR CHAPEL, AND COMMITTING A FELONY THEREIN.

THE former enactments(a) which related to this offence are repealed; but by the 24 & 25 Vict. c. 96, s. 50,"Whosoever shall break and enter any church, chapel, meeting-house, or other place of divine worship, and commit any felony therein, or being in any church, chapel, meeting-house, or other place of divine worship shall commit any felony therein and break out of the same, 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 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."(b)

Principals in the second degree and accessories before the fact are punishable like the principals in the first degree, and accessories after the fact (except receivers of stolen property) are liable to imprisonment for two years, by sec. 98 of the Act.(c)

The tower of a parish church, having an internal communication with, and not being separated from the body of the church, was a part of the church within the meaning of the 7 & 8 Geo. 4, c. 29. Upon an indictment for breaking into a parish church, and stealing two surplices and a scarf, it appeared that the surplices and scarf were stolen from a box kept in the church tower; this tower was built higher than the church, and had a separate roof, but it had no outer door, the only way of going into it being through the body of the church, from which the tower was not separated by a door or partition of any kind: it was objected that the stealing these articles deposited in the tower was not sacrilege; but it was held that a tower, circumstanced as this tower was, must be taken to be part of the church, and that the stealing of these articles in the tower was a stealing in the church within the meaning of the 7 & 8 Geo. 4, c. 29, s 10.(d)

An indictment alleged that the prisoners broke and entered a church, and stole *72] the sacramental plate: the plate was kept in a chest in the vestry; the vestry had in old time been in the porch of the church, and when the church was altered the porch was turned into the vestry room: it had never been used for vestry purposes, but only for the robing of the clergyman, and the custody of the sacramental plate; it had a door opening into the body of the church, and another door opening into the churchyard, but this latter door was always kept locked in the inside. The vestry window had been broken, and an entrance gained thereby. Coleridge, J., held that this vestry was as much a part of the church for the purposes of this indictment as the nave.(e)

The word "chapel," in the 7 & 8 Geo. 4, c. 29, s. 10, meant a chapel where the rites and ceremonies of the Church of England were performed, and did not include the chapels of Dissenters. (f) But the new clause is so framed as to include every place of religious worship.

The words "any chattel" in the repealed Act might have included articles in a church, though not used for divine service. The words "any goods," in the 1

(a) 23 H. 8, c. 1; 1 Ed. 6, c. 12; 7 & 8 Geo. 4, c. 29, s. 12.

(b) This clause is framed on the 7 & 8 Geo. 4, c. 29, s. 10, and 9 Geo. 4, c. 55, s. 10 (I.). The words "meeting-house, or other place of divine worship," were in the latter and not in the former Act. The former enactments were confined not only to stealing, but to stealing any chattel. The present clause includes "any felony." As to hard labor, see sec. 118; as to solitary confinement, see sec. 119; and as to sureties, see sec. 117, ante, p. 67. The Act does not extend to Scotland.

(c) Ante, p. 67. As to the proceedings against accessories, see vol. 1, p. 67, et seq. (d) Rex v. Wheeler, 3 C. & P. 585 (14 E. C. L. R.), Park, J. J.

(e) Reg. v. Evans, C. & M. 298 (41 E. C. L. R.),

(f) Rex v. Warren, 6 C. & P. 335 (25 E. C. L. R.), note (a); s. P., Reg. v. Richardson, 6 C. & P. 335 (25 E. C. L. R.); Rex v. Nixon, 7 C. & P. 442 (32 E. C. L. R.).

Edw. 6, c. 12, were held not to be confined to goods used for divine service, but to extend to articles used in the church to keep it in proper order; and it was considered that such articles were under the protection of the statute, whilst the church was in a course of being repaired, if they had not been brought in merely for the purpose of such repairs. Whilst a church was being repaired, the prisoner stole from it a pot used to hold charcoal for airing the vaults, and a snatch block, used to raise weights, if the bells wanted repair. These articles had been kept in the church for years, and were not brought in for the repairs which were then in progress. Upon a case reserved, the judges were unanimous that such goods were under the protection of the statute, as they thought that the violation of the sanctity of the place was what the statute was intended to prevent.(g)

But the word "chattel" did not include anything affixed to the freehold. Upon an indictment for breaking into a chapel, and stealing a bell and divers other articles, it appeared that the bell was the only thing not fixed in the chapel, and it was held that the case must be confined to the stealing of the bell; for although the 7 & 8 Geo. 4, c. 29, s 44, made stealing fixtures the subject of larceny, yet it did not say that fixtures should be considered as chattels, which they must be to bring them within the section, upon which that indictment was founded.(h) And where an indictment alleged that the prisoner broke and entered a church and stole certain fixtures contra formam statuti, and the breaking into the church and wrenching off certain things affixed to the building were proved, Alderson, B., held that the statutable offence of breaking and stealing, which required some chattel to be stolen, was not proved; but that the prisoner might be convicted of stealing the fixtures.(i) But this case would be included within the new clause, as it extends to "any felony."

*The goods of a Dissenting chapel, vested in trustees, cannot be described as [*73 the goods of a servant, who has merely the care of the chapel and the things in it, to clean and keep them in order, though he have the key of the chapel, and no person except the minister have another key.(j) But books belonging to a society of Dissenters, and stolen from their chapel, may be described as the property of one of the members of the society by name "and others." Upon an indictment for stealing a bible and hymn-book, the property of J. Bennett and others, it appeared that the books had been presented to the Society of Wesleyan Methodists, from whose chapel they had been stolen, and they had been bound at the expense of the society; Bennett was one of the trustees of the chapel, and a member of the society, but no trust deed was produced; it was held that as Bennett was one of the society, the property in the books was well laid in him "and others." (k)

Where the bells, books, or other goods belonging to a church are stolen, they may be laid in the indictment to be the goods of the parishioners.(7) And it is said, that he who takes away the goods of a chapel or abbey, in time of vacation, may be indicted, in the first case, for stealing bona capella, being in the custody of such and such; and. in the second, for stealing bona domûs et ecclesiæ, &c.(m)

An indictment alleged that the prisoners broke and entered a church and stole a certain box, and a quantity of silver and copper coin being in the said church, and the property was laid in the first count in C. T. Wilson (who was one of the churchwardens of the parish) and another; and in the second count in J. Nussey (who was the vicar) and others; and in the last count in S. Tibbetts (who was one of the parishioners) and others. The prisoners were convicted of stealing only, and it was objected that the box was affixed to the freehold, and that there was no count properly framed for stealing a fixture; and, in addition, there was no count laying the property in the vicar, in whom the freehold of the church was vested. The box was a very ancient box, firmly fixed by two screws at the back to the outside of

(g) Rex v. Rourke, MS., Bailey, J., R. & R. 386.

(h) Rex v. Nixon, 7 C. & P. 442 (32 E. C. L. R.), Patteson, J.

(i) Reg. v. Baker, 3 Cox C. C. 581.

(j) Rex v. Hutchinson, R. & R. 412, post, tit. Larceny.

(k) Rex v. Boulton, 5 C. & P. 537 (24 E. C. L. R.), Park, J. J.

(2) 1 Hale 512; 2 Hale 81; 1 Hawk. P. C. c. 33, s. 45; 2 East P. C. c. 16, s. 69, p. 651.

(m) 1 Hale 512; 2 Hale 81; 1 Hawk. P. C. c. 33, s. 45; 2 East P. C. c. 16, s. 69, p. 651. All which rest on the Year Book, 7 Ed. 4, pl. 1, p. 14.

a pew, in the centre aisle of the church, and by a third screw to a supporter beneath, and over the box was an ancient board with the inscription painted thereon, "Remember the Poor." There were two locks to the box, but no evidence was given to show in whose custody the keys were kept, nor was there any evidence that the money had ever been taken out by the churchwardens or any other person for the purpose of being distributed, although it was proved that both silver and copper had from time to time been dropped in the box. It was contended that the churchwardens could have no property, as churchwardens, in this money; that in no view of the case could the vicar and any others have the property; and that, even if it belonged to the parishioners (which. it was argued, could not be the case), the should have been laid in them as parishioners; *but, upon a case re*74] property served, the judges were unanimously of opinion that the prisoners were properly convicted on the second count. They thought that the box might be presumed, in the absence of any evidence to the contrary, to have been placed in the church pursuant to Canon 84, (n) and that the money therein placed was constructively in the possession of the vicar and churchwardens, who jointly are not a corporation, and therefore were properly described in the second count.(0)

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

*75]

*CHAPTER THE THIRD.

OF HOUSE-BREAKING.

BESIDES the nocturnal house-breaking, or burglary, which has been treated of in the first chapter of this book, the law of England, in its especial regard for the safety and security of the habitation of man, provided by several statutes that the forcible invasion of the dwelling-house of another, or house-breaking, when accompanied with felony, should be liable to capital punishment, though committed in the day-time.

The former statutes upon this subject have been repealed; but by the 24 & 25 Vict. c. 96, s 56, "Whosoever shall break and enter any dwelling-house, schoolhouse, shop, warehouse, or counting-house, and commit any felony therein, or, being in any dwelling-house, school-house, shop, warehouse, or counting-house, shall commit any felony therein, and break out of the same, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to kept in penal servitude for any term not exceeding fourteen years and not less than three yearsor to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(a)

Sec. 53 provides and enacts, that "no building, although within the same curtilage with any 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 inmediate, or by means of a covered and enclosed passage leading from the one to the other."

Principals in the second degree, and accessories before the fact, are punishable as the principals in the first degree; and accessories after the fact (except receivers of stolen property) are liable to imprisonment for two years, by sec. 98 of the Act.(b)

(n) Burn's Ecc. Law, tit. Church.

(0) Reg. v. Wortley, 1 Den. C. C. 162.

(p) See the section, vol. 1, p. 1.

(a) This clause is taken from the 7 & 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 school-house, and the clause is extended to "any felony," and by the other words in italics, the offences are made very similar to burglary. As to hard labor, see sec. 118; as to solitary confinement, see sec. 119; and as to sureties, see sec. 117, ante, p. 67. The Act does not extend to Scotland. (b) Ante, p. 67. See vol. 1, p. 67, et seq.

By analogy to the cases decided upon the repealed statutes (c) it is conceived that such a breaking and entering as would, if committed in the night, constitute a burglary, will be necessary, in order to bring a case within the present statute. And so also any breaking and entering which would be sufficient in a case of burglary, would be sufficient under this Act. Thus, where the prisoner burst open an inner door in the inside of a house, and so entered a shop in order to steal money from the till, it was held that this was a sufficient breaking to support an indict[*76 ment for house-breaking.(d) Under the former statutes there must have been not only a breaking and entering, but also a larceny in the house, and in order to constitute the offence under sec. 56 of the new Act, there must be some felony committed in the house.

*

But it was not necessary under the former statutes, that the chattel should be taken out of the house. Before the 7 & 8 Geo. 4, c. 29, the least removal of the goods from the place where the thief found them, though they were not carried out of the house, was sufficient, as in other larcenies, (e) and the same was held under that statute. Upon an indictment for house-breaking, it appeared that the prisoner, after having broken into the house, took two half sovereigns out of a bureau, in one of the rooms, but, being detected, he threw them under the grate in that room; it was held, that if they were taken with a felonious intent, that was a sufficient removal of them to constitute the offence (ƒ)

A person present at the breaking and entering, but not at the stealing, is guilty of the whole offence. Upon an indictment against Jordan, Sullivan, and May, for house-breaking, it appeared that Jordan and Sullivan accompanied May, who was to secrete himself in the house, so that during the night he might commit the robbery; and that the door being latched, they assisted him in gaining admission, by opening an umbrella to screen him from observation while he entered; but they went away soon after he got in, and were not seen near the place again until after the robbery had been committed; it was held that as Jordan and Sullivan were present at the commencement of the transaction, they must be considered as guilty of the whole. There had been a case of burglary where the breaking was one night, and the entry the next, and the judges had decided that a party, who was present at the breaking, and not present at the entering, was guilty of the whole, and that this was a much stronger case than that.(g)

An indictment for house-breaking is good, if it alleges that the prisoner broke and entered the dwelling-house, and the goods of A. B. "in the said dwelling-house then and there being found, then and there (omitting 'in the said dwelling-house,') feloniously did steal." (h)

The same accuracy in the statement of the ownership and situation of the dwelling-house is necessary in this offence as in burglary, and it is sufficient to refer to the authorities on these subjects collected in the previous chapter. (1) But it must be remembered that any error in these matters may now be amended under the 14 & 15 Vict. c. 100, s. 1.(j)

It seems, also, that questions which may arise upon the new statute, as to what shall be deemed a dwelling-house, must be governed by the same rules as apply to similar questions in cases of burglary, *keeping in mind the enactment before [*77 mentioned as to buildings within the curtilage. A chamber in one of the inns of Court was held to be a dwelling-house within the repealed statute, 39 Eliz. c. 15.(k)

(e) 1 Hale 522, 523, 526, 548; 2 Hale 352, 353; 1 Hawk. P. C. c. 34, ss. 2, 3; 2 Hawk. P. C. c. 33, ss. 88, 92; Fost. 108; 2 East P. C. c. 16, s. 68, p. 631, s. 72, p. 636, s. 75, p. 638. (d) Reg. v. Wenmouth, Cox C. C. 348. (e) 2 East P. C. c. 16, s. 75, p. 639.

(f) Rex v. Amier, 6 C. & P. 344 (25 E. C. L. R.), Park, J. A. J.

(9) Rex v. Jordan, 7 C. & P. 432 (32 E. C. L. R.), Gaselee, J., and Gurney, B. See this case, ante, p. 40.

(h) Reg. v. Andrews, C. & M. 121 (41 E. C. L. R.), and MS., C. S. G., Coleridge, J., overruling Reg. v. Smith, 2 M. & Rob. 115, which Coleridge, J., said Patteson, J., was himself since satisfied had been wrongly decided.

(i) See particularly Reg. v. Brookes and Reg. v. Jackson, ante, p. 48, 49.

(5) See the clause in Evidence.

(k) Rex v. Evans, Cro. Car. 473.