while he was asleep, stole the watch; it was suggested that this was not a case within the statute, as the property was not under the protection of the house, which was essential to support the indictment, but under the protection of the person of the prosecutor. Parke, B., and Patteson, J., having considered the point and looked into the cases, said that the preceding case was an authority in support of the indictment; they therefore were of opinion that under the circumstances, and the prosecutor having *been asleep when the watch was taken by the prisoner, [*84 it was sufficiently under the protection of the house to bring it within the statute.(k) So if one, on going to bed, put his clothes and money by the bedside, these are under the protection of the dwelling-house, and not of the person; therefore a party stealing them was held rightly convicted on an indictment for stealing in a dwelling-house; and the question whether goods are under the protection of the dwelling-house, or in the personal care of the owner, is a question for the Court and not for the jury.(1) But if a person put money under his pillow, and it is stolen while he is asleep, this is not a stealing of money in the dwelling-house within the meaning of the Act. Thus, where money was stolen from under the pillow of a person sleeping in a dwelling-house, it was held, that the case was not within the repealed statute.(m) So where a guest, when in bed at an inn, placed his small clothes containing his money under his head and they were stolen, and the indictment was on the 12 Anne, c. 9, for stealing to the amount of forty shillings in the dwelling-house, it was held that the property having been thus taken under the party's personal protection, it was no longer under the protection of the house (n) But property left at a house and delivered to the occupier under the supposition that it was for one of the persons in the house, was considered to be entitled to the protection of the house, and the stealing of it to the value of forty shillings to be within that statute. Two boxes, belonging to a Mrs. Douglas, who lodged at 38, in Rupert Street, were delivered at No. 33 in the same street, where the prisoner lodged, by a porter from the Green Man and Still (but whether by accident or collusion with the prisoner was not proved, as the porter, though called upon his recognizance, did not appear), and the occupier of the house, No. 33, took them in and paid the porterage, supposing them to be for the prisoner, whose name she did not know, as he had recently taken his lodgings with her. Shortly afterwards when the prisoner came she told him of the arrival of the boxes, and of the porterage she had paid, when he said it was all right and he would pay her again. The boxes were put into his room, and he went out two or three times in the course of the evening, carrying bundles each time, and when he went out the last time he did not return again. The boxes were found entirely ransacked. The jury found the prisoner guilty, but upon a doubt whether these goods were sufficiently under the protection of the house to bring the case within the statute, the point was submitted to the judges, who held that the goods were under the protection of the dwelling-house, and that the capital conviction was therefore proper.(0)

[*85 In a case upon the same statute, where the indictment was for stealing a banknote of the value of £25, in the dwelling-house of one C. M. Adams, it appeared that the prisoner was a lodger in Mrs Adams's house, and that, on the day on which the offence was committed, she, wanting to get the note changed, sent her servant

(k) Rex v. Hamilton, 8 C. & P. 49 (34 E. C. L. R.), Parke, B., and Patteson, J. It is said in a note to this case, "it would appear that had the prosecutor been awake instead of asleep, in Taylor's case, the property was sufficiently within his personal control to render the stealing of it a stealing from the person;" but it is not stated in the report of Rex v. Taylor that the prosecutor was asleep, though probably that might be the case. C. S. G.

(1) Rex v. Thomas, Carr. Supp. 295, 3d edit. C. R.

(m) Anonymous, 2 Stark. C. P. 467 (3 E. C. L. R.), note (a), Chambre, J. Mr. Starkie adds, "but Ward was convicted and received sentence, of death in a similar case, cor. Bayley, J., Lancaster Sum. Ass. 1814. Note, Ward was a guest at an inn." See the next note. C. S. G.

(n) Rex v. Challenor, Dick. Q. S. 245, 5th edit., Park, J. A. J., who said that Ward's case (see the last note), held to the contrary, might have turned on some peculiar circum

stances.

(0) Rex v. Carroll, R. & M. C. C. R. 89. See Rex v. Mucklow, R. & M. C. C. R. 160, post, tit. Larceny.

with it to his apartments, to request him to give her change for it; when the prisoner after examining his purse, and saying that he had not gold enough about him for the purpose, but that he would go to his bankers and get it changed, left the house with the note in his hand, and never returned. Upon these facts a question arose, whether the case was within the statute, which was considered as having been made to protect such property as might be deposited in the house, and not property which was on the person of the party: and the point having been saved for the opinion of the judges, they were of opinion that the case was not within that statute.(p) And, upon the same principle, where a person, in possession of a large sum of money, was deluded by a ring-dropper, who pretended to have found a purse, to go into a public-house, and share its contents, and there induced to lay his money on the table, when the ring-dropper immediately took up the money, and carried it off, it was decided, upon reference to the judges, that the case was not within that statute. A majority of them were of opinion that, in order to bring a case within that statute, the property stolen must be under the protection of the house, and deposited therein for safe custody, as the furniture, plate, or money kept in the house, and not things immediately under the eye, or personal care of some one who happened to be in the house.(g)

Another point was decided upon the statute of Anne, namely, that it was necessary the stealing should be to the amount of forty shillings at one time; it being a rule that a number of distinct grand larcenies cannot be added together, so as to constitute a capital offence. Thus, where the evidence was that the prisoner was the servant of the prosecutor, and had, at different times, purloined his master's property to a very considerable amount, but it did not appear that he had ever taken to the amount of forty shillings at any one particular time; the Court held that the case was not within the statute. They said, that the property must be stolen to the amount of forty shillings at one and the same time: and that the several values of different portions of property, stolen at different times, could not be added together for the purpose of making the offence capital, they being in fact different and independent acts of stealing.(r) But where property was stolen at one time to *861 the amount of forty shillings, and a part of it only, not amounting to forty shillings, was found upon the prisoner, and produced at the trial, the Court left it to the jury to say whether the prisoner had not stolen the rest of the things which the prosecutor lost, as well as those which had been produced.(s)

If a prisoner stole a number of different articles, amounting together to the value of five pounds, and took them all out of the house at one and the same time, this was an offence within the 7 & 8 Geo. 4, c. 29, s. 12, although they were stolen in the dwelling-house at different times. Upon an indictment for stealing lace in the dwelling-house to more than the value of £5, it appeared that the prisoner sent the lace, which was in several distinct pieces, in a parcel from his master's shop, and no one piece of lace was worth £5; it was suggested that in favorem vitæ the judge would take it that the pieces of lace might have been stolen at different times. Bolland, B., "I cannot assume that to have been so; we find that the lace is all sent in one parcel, and all brought out of the prosecutor's house at once; and unless you give some evidence to show that it was stolen at different times, you do not raise your point; but even if you did, I should think it would be of no avail; for on the last Winter Circuit it appeared that a person at Brighton stole goods in the same way that you wish me to suppose that this person did; for it was shown that he stole the articles, one or two at a time, and under the value of £5, but that he carried them out of his master's house all together, the articles amounting in all to

(p) Campbell's case, 2 Leach 564; 2 East P. C. c. 16, s. 82, p. 644, 645.

(7) Owen's case, 1 Hawk. P. C. c. 36. Of Larceny from the Dwelling-house, s. 6; 2 Leach 572; 2 East P. C. c. 16, s. 82, p. 645. And the same point was again decided in Castledine's case, O. B. Oct. 1792, which was also referred to the judges; and again in Watson's case. See 2 Leach 574, note (a); 2 Leach 640; 2 East P. C. c. 16, s. 82, p. 645, 646, and s. 107, p. 680, 681.

(r) Petrie's case, 1 Leach 294.

(s) Hamilton's case, 1 Leach 348. The jury found the prisoner guilty of stealing goods in the dwelling-house to the value of forty shillings.

more than £5 value, and Garrow, B., after much consideration, held that as the articles were all brought out of the house together, it was a capital offence.”(t)

As in cases of burglary, so in indictments for this offence, the name of the owner of the house should be correctly stated in the indictment; as a material variance in this respect will be fatal to the capital part of the charge. Thus, where an indictment upon the statute of Anne stated the dwelling-house to belong to one J. Snoxall, and upon the evidence it appeared that it was not his house, it was holden that the prisoner could not be convicted upon that statute;(u) and it was holden to be a variance fatal to the capital part of an indictment upon the same statute where the house was stated to belong to S. Lunns, and it appeared on the evidence that the proper name was S. London.(v)

Where the place is material, the place stated as venue is to be taken to be the true place; therefore, in an indictment for stealing in a dwelling-house, if it is not expressly stated where the dwelling-house is situated, it shall be taken to be situated at the place named by way of venue. The prisoner was convicted upon an indictment, which stated that the prisoner at Liverpool, in the county aforesaid, one coat of the value, &c., in the dwelling-house of W. T., then and there being, then and there feloniously did steal, &c., but a doubt having occurred whether the [*87 situation of the house was sufficiently described, and whether the indictment ought not to have stated "in the dwelling-house of W. T. there situate." the point was submitted to the judges, who held that the indictment showed sufficiently that the house was situate at Liverpool, and that the conviction was therefore proper."(w) Where an indictment for stealing in the dwelling-house set out a variety of articles, with a certain value to each, but no one of them to the value of £5; the value of all was, however, more than £5, but there was no distinct allegation that the articles were of the value of £5; it was objected that there ought to have been a substantive allegation that the goods were of that value, in order to bring the case within the enactment; but the objection was overruled. (x)

In ascertaining the value of the articles stolen the jury may use that general knowledge which any man can bring to the subject, but if it depends on any particular knowledge of the trade, the juryman must be sworn. On an indictment for stealing a watch and seals of the value of £7, a witness having sworn that the property, in his opinion, was worth that sum, the jury inquired if they were at liberty to put a value on the property themselves; Parke, B., "If a gentleman is in the trade he must be sworn as a witness; that general knowledge which any man can bring to the subject may be used without; but if it depends upon any knowledge of the trade, the gentleman must be sworn.”(y)

Upon an indictment for stealing in a dwelling-house to the amount of £5, it appeared that Jefferies, the servant of the prosecutor, and Bryant had agreed to rob the prosecutor's house, and in pursuance of this agreement, Jefferies left a door of the house open in order that Bryant might enter thereby and commit the robbery, which he accordingly did about twenty minutes after Jefferies had left the door open, and in the absence of Jefferies; it was contended that as Jefferies might have been convicted as a principal if the indictment had been for housebreaking(z) he might be considered as a principal in stealing the property in the dwelling-house; for the form of the indictment could make no difference in the question whether Jefferies was a principal in committing the larceny; but it was held that he could not be convicted on this indictment.(a)

(t) Rex v. Jones, 4 C. & P. 217 (19 E. C. L. R.), Bolland, B. The decision seems clearly correct; for as long as the goods were in the owner's house they were in his possession, and the removal from the house was a new larceny of all. See Rex v. Dyer, 2 East P. C. c. 16, s. 154, p. 767, 768, and Rex v. Atwell, Ibid. C. S G.

(u) White's case, Leach 252, ante, p. 47.

(v) Woodward's case, 1 Leach 253, note (a), and see other cases, ante, p. 46.

(w) Rex v. Napper, R. & M. C. C. R. 44.

p. 48.

See Rex v. Richards, 1 M. & Rob. 177, ante,

(z) Reg. v. Stonehouse, 1 Cox C. C. 69, Gurney, B.

(y) Rex v. Rosser, 7 C. & P. 648 (32 E. C. L. R.), Parke, B., and Vaughan, J.

(2) Rex v. Jordan, 7 C. & P. 432 (32 E. C. L. R.), ante, p. 40.

(a) Reg. v. Jefferies and Bryant, Gloucester Spr. Ass. 1848, MSS., C. S. G.; 3 Cox. C. C.

In this, as in most other offences, any one of the several persons may be found guilty upon an indictment charging them with a joint offence. But they cannot be found guilty separately of separate parts of the charge, and if they be so found guilty separately, a pardon must be obtained, or nolle prosequi entered, as to the one who stands second upon the verdict, before judgment can be given against the *88] ther. Thus, where Hempstead and Hudson were *indicted upon the statute of Anne for stealing in the dwelling-house to the value of £6 10s., and the jury found Hempstead guilty as to part of the articles of the value of £6, and Hudson guilty as to the residue; the judges upon a case reserved, held that judg ment could not be given against both, but that upon a pardon or nolle prosequi, as to Hudson, it might be given against Hempstead.(b)

Where a prisoner was indicted for robbery in a house, or burglary and stealing of goods, and the evidence proved a larceny committed in the dwelling-house to the amount of forty shillings, it was held that he might be acquitted of the robbery and burglary, and found guilty upon the statute of Anne, although there was no special count upon the statute in the indictment.(c)

So, upon an indictment for burglary and stealing to more than the amount of £5, the prisoner may be acquitted of the burglary, and found guilty of stealing in the dwelling-house to the amount of £5.(d)

Where an indictment charged the prisoners in the first count with stealing in the dwelling-house of A., the moneys and goods of A. above the value of five pounds, and in the second count with simple larceny of moneys and goods (not "other" moneys, &c.) of the said A., describing them precisely in the same way as in the first count, and not using the word "afterwards; and the plea was not guilty of the premises; and the jury process was to try whether the prisoners were guilty of the felony aforesaid; and the verdict was that the prisoners were guilty of the felony aforesaid as by the indictment aforesaid supposed: and the judgment. was that the prisoners be transported for ten years: the Court of Queen's Bench held that the word "felony" was not nomen collectivum, meaning felony generally, but pointed to one particular charge of felony, and therefore that the verdict was bad in not specifying the offence of which it found the prisoners guilty, and that the judgment was erroneous, the Court not being at liberty to apply it to the first count only. And upon error, the Court of Exchequer Chamber held, that whether or no the word "felony" was to be taken as nomen collectivum in the judgment, it could mean in the jury process one offence only; and therefore the process was here misawarded, and the judgment could not be sustained. (e)

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.(ƒ)

*89]

*CHAPTER THE SIXTH.

OF BREAKING, ETC., AND STEALING IN A BUILDING WITHIN THE CURTILAGE.

THE 24 & 25 Vict. c. 96, s. 53, provides 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 imme

85, Cresswell, J., after consulting Patteson, J. But in such a case now there might be a conviction under the 24 & 25 Vict. c. 94, s. 1, ante, vol. 1, p. 67.

(b) Rex v. Hempstead, MS., Bayley, J., and R. & R. 344.

(e) 1 Hawk. P C. c. 36; Of Larceny from the Dwelling-house, s. 3.

(d) Rex v. Compton, 3 C. & P. 418 (14 E. C. L. R.), Gaselee, J.

(e) Campbell v. Reg., 11 Q. B. 799 (63 E. C. L. R.). See my observations on this case in 36 Law Mag. p. 1-17.

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

diate, or by means of a covered and inclosed passage leading from the one to the other;" and by sec. 55, "Whosoever shall break and enter any building. and commit any felony therein, such building being within the curtilage of a dwellinghouse, and occupied therewith, but not being part thereof, according to the provision hereinbefore mentioned, or being in any such building 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 any term not exceeding fourteen 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." (a)

By sec. 98, principals in the second degree, and accessories before the fact are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers) are liable to imprisonment for any term not exceeding two years.(b)

This enactment, specifying as it does in express terms a building within the curtilage of a dwelling-house, appears not to apply to many of those buildings and outhouses, which, although not within any common enclosure or curtilage, were deemed by the old law of burglary, parcel of the dwelling-house, from their adjoining to such dwelling-house, and being in the same occupation. The inquiry under this provision of the statute will be simply whether the building in question is within the curtilage or homestall; but it may be useful to refer to some of the points formerly decided in cases of burglary, in which it became material to consider whether particular buildings were parcel of a dwelling-house, and the circumstance of their being situated within a common inclosure appears to have been treated as a material ingredient. It should be observed, however, that in several of these cases the particular buildings might possibly have been held to be parcel of the dwelling-house independently of that circumstance.

*Where the prisoner had broken into a goose-house which opened into the [*90 prosecutor's yard, into which yard the prosecutor's house also opened, and the yard was surrounded partly by other buildings of the homestead, and partly by a wall, some of which buildings had doors opening backwards, as well as doors opening into the yard, and there was a gate in one part of the wall opening upon a road, the judges held that the goose-house was parcel of the dwelling-house. (c)

Where the prosecutor's house was at the corner of a street, and adjoining thereto was a workshop, beyond which a stable and coach-house adjoined; all were used with the house, and had doors opening into a yard belonging to the house, which yard was surrounded by adjoining buildings, &c., so as to be altogether an inclosed yard; the workshop had no internal communication with the house, and it had a door opening into the street, and its roof was higher than that of the dwellinghouse; the street-door of the workshop was broken open in the night; and, upon an indictment for burglary, the question arose, whether the workshop was parcel of the dwelling-house; and, upon a case reserved, the judges were unanimous that it was.(d) And it was holden, that an outhouse in the yard of a dwelling-house was parcel of the dwelling-house, the yard being inclosed, although the occupier had another dwelling-house opening into the yard, and had let such other dwelling-house with certain easements in the yard, the two houses having been originally in one. prosecutor had in one range of buildings a house which he occupied, a house which he let, and a warehouse, all of which opened into a yard which was surrounded by a wall, gates, and buildings; the tenant of the second house had certain easements in the yard, and his house was between the prosecutor's house and the warehouse, and the two houses had formerly been in one. The prisoner was convicted of burglary in breaking into the warehouse, and, upon a case reserved, the judges (a) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 14, and 9 Geo. 4, c. 55, s. 14 (I.). As to hard labor, see sec. 118; as to solitary confinement, see sec. 119; and as to sureties, Bee sec. 117, ante, p. 67. The Act does not extend to Scotland.

The

(b) See this section, ante, p. 67. The proceedings for the trial of accessories are in vol. 1, p. 67, et seq.

(e) Rex v. Clayburn, R. & R. 360.

(d) Rex v. Chalking, MS., Bayley, J., and R. & R. 334, and see Rex v. Lithgo, R. & R. 357.