were of opinion that the warehouse was part of the prosecutor's house; it was so before the house was divided, and it remained so notwithstanding the division.(e) It should seem that a building which was not any parcel of a dwelling-house, by the old law of burglary, cannot be considered as a building within the curtilage under the recent statute. It will be material therefore to attend to the connection of the curtilage with some dwelling-house in which burglary might have been committed. And we have seen that, by the express provision of the statute, the building within the curtilage must be occupied with the dwelling-house.(f)

It was holden that burglary could not be committed by breaking into a centre building used for the purposes of trade, but having no internal communication with the dwelling-houses which formed the wings. The building was stated, in the first count of the indictment, as the dwelling-house of M. R. Boulton: in the second, as the dwelling-house of J. Bush; and in the third, as the dwelling-house of W.

*91] Nelson. The place broken into was a centre *building, having two wings; in

such centre building an extensive business was carried on, relating to different manufactories in which one Matthew Boulton was concerned with M. R. Boulton, W. Nelson, and several other persons; and also relating to two other manufactories in which Matthew Boulton was concerned on his own account: in part of one of the wings was the dwelling-house of M. R. Boulton, and in the other part of the same wing, the dwelling-house of J. Bush, mentioned in the second count of the indictment, who was a workman of Matthew Boulton's; but neither of such dwellinghouses had any internal communication with the centre building, except only, in the one occupied by J. Bush, a window, which looked into a passage that ran the whole length of the centre building; and in the other wing was the dwelling-house of W. Nelson, which also had no internal communication with the centre building. In the front of this building there was a terrace or front yard, fenced round in different ways, and at the end of the pile of building, by a wall, with gates for horses and carriages, and a door for foot passengers: the prisoners entered by a door in the front yard, through which they went along the front of the building, and round it into another yard behind it, called the middle yard; from thence, through a door which had been left open, up a staircase in the centre building, where they broke open some of the rooms; having so entered the premises by the assistance of a servant of Matthew Boulton's, who acted as an accomplice for the purpose of effecting the apprehension of the prisoners. Upon a case reserved, the judges agreed that the prisoners were not guilty of burglary; and the grounds upon which they so decided are stated to have been, that the centre building, being a place for carrying on a variety of trades, and having no internal communication with the adjoining houses, could not be considered as part of any dwelling-house; and that it was not to be considered as under the same roof as the houses adjoining, though the roof of it had a connection with the roofs of the houses.(g)

But where there was an internal communication between a factory and the dwelling-house by means of an open passage only, the factory, being within the same fence as the dwelling-house, and used with it, was held to be parcel of the dwellinghouse; although it was used partly for the separate business of the occupier of the dwelling-house, and partly for a business in which he had a partner. The premises were surrounded by a garden wall, the front wall of the factory, and the wall and gate of the stable yard; they were of the extent of rather more than an acre, and the house was in the centre; there was no other communication between the house and the factory than by one open passage inside the walls. In the factory the prosecutor, the occupier of the dwelling-house, carried on one business of his own, and another jointly with a partner, who lived elsewhere; and the rooms over the factory were used for the joint as well as the separate business. These rooms were broken into, and part of the separate property of the prosecutor, and also part of the joint property was stolen; and upon an *indictment for burglary in the dwelling-house of the prosecutor, and after conviction, a case being reserved, [*92

(e) Rex v. Walters, MS., Bayley, J., and R. & M. C. C. R. 13. (f) Ante, p. 75.

(g) Rex v. Egginton, 2 Leach 913; 2 East P. C. c. 15, s. 10, p. 494; 2 Bos. & Pul. 508.

the judges held that these rooms were part of the prosecutor's dwelling-house, and that the conviction was right.(h)

Where, upon an indictment for breaking and entering a building within the curtilage, it appeared that there was a large square inclosed at the back of a dwelling-house, surrounded on all sides by a barn, cow-sheds, a granary, pig-styes, and walls, and that within such larger inclosure there was a lesser inclosure, abutting on one side on the back of the dwelling-house, and on another on the pig-styes, and the third and fourth sides of which were formed by a wall about four feet high, which separated it from the other part of the large inclosure, and the back-door of the house entered into such lesser inclosure, and out of it there was a gate through the wall into the larger inclosure, into which there was no door immediately leading from the house; and some corn was stolen out of the granary, which was on the opposite side of the large inclosure from the house; it was held that the whole of the larger inclosure was within the curtilage, and not merely the lesser inclosure immediately at the back of the house, and consequently that the granary was a building within the curtilage.(i)

It was said upon the old law of burglary, that if a man took a lease of a dwellinghouse from A., and of a barn from B., such barn would be no parcel of the dwelling-house, and not therefore a place in which burglary could be committed; (j) a position leading to the inference, that no outhouse, holden under a distinct title from the dwelling-house, could be the subject of burglary. But upon this it was observed, that the circumstance of an out-building being enjoyed by the occupier under a different title from his dwelling-house, seemed a very unsatisfactory reason of itself for excluding it from the same protection, if it were within the curtilage, or under the same roof, and actually enjoyed as parcel of the dwelling-house in point of fact, and under such circumstances as would, apart from the difference of title, constitute it parcel of the mansion in point of law. (k)

A door, wall, or other fence forming part of the outward fence of the curtilage, and opening into no building, but into the yard only, was held not to be such a part of the dwelling-house as that the breaking thereof would constitute burglary; and it was held to make no difference that the door broken was the entrance to a covered gateway, and that some of the buildings belonging to the dwelling-house, and within the curtilage, were over the gateway, and that there was a hole in the ceiling of the gateway for taking up goods into the building above The prosecutor had a dwelling-house, warehouses, and other buildings, and a yard; the entrance into the yard was through a pair of gates which opened into a covered way; over this way were some of the warehouses, and there was a loop-hole and crane over the gates to admit of goods being craned up; and there was also a trap-door in the roof of the covered way; there was free communication from the warehouses to [*93 the dwelling-house: the prisoners broke open the gates in the night with intent to steal, and entered the yard, but did not enter any of the buildings; and, upon a case reserved, the judges were unanimous that the outward fence of the curtilage, not opening into any of the buildings, was no part of the dwelling-house.(7) So an area-gate opening into an area only, is not such part of the dwelling-house, that the breaking of the gate will be burglary, if there be any door or fastening to prevent persons in the area from entering the house, although such door or other fastening may not be secured at the time. The prisoners opened an area-gate in a street in London, and entered the house through a door in the area which happened to be open, but which was always fastened when the family went to bed, and was one of the ordinary barriers against thieves. Having stolen in the house to the value only of thirty-nine shillings, a question was made whether the breaking of the areagate was breaking the dwelling-house so as to constitute burglary, and as there was

(h) Rex v. Hancock, MS., Bayley, J., and R. & R. 170.

(2) Reg. v. Wood, Stafford Spr. Ass. 1843, MSS., C. S. G., Wightman, J., after consulting Erskine, J; s c. as Reg. v. Gilbert, 1 C. & K. 84 (47 E. C. L. R.).

(j) 1 Hale 559.

(k) 2 East P. C. c. 15, s. 10, p. 494. And see ante, p. 20.

(1) Rex v. Bennett, MS., Bayley, J., and R. & R. 289.

no free passage in time of sleep from the area into the house, the judges held unanimously that the breaking was not a breaking of the dwelling-house. (m)

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 on an indictment for such attempt.(n)

*94]

*CHAPTER THE SEVENTH.

OF BREAKING, ETC., AND STEALING IN ANY SCHOOL-HOUSE, SHOP, WAREHOUSE, OR COUNTING-HOUSE.

THE former enactments on this subject are repealed; and by the 24 & 25 Vict. c. 96, s. 56,"Whosoever shall break and enter any dwelling-house, school-house, 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 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)

Principals in the second degree and accessories before the fact are punishable like principals in the first degree; and accessories after the fact (except receivers) are liable to imprisonment for any term not exceeding two years, by sec. 98 of the Act.(b)

It was once said that a shop must be a shop for the sale of goods, and that a mere workshop would not be sufficient. Upon an indictment on the 7 & 8 Geo. 4, c. 29, s 15, and 1 Vict. c. 90, for breaking into a shop and stealing coals, it appeared that the prosecutor sold coal, and was also a blacksmith: the place from which the coal was stolen was a shop, to which persons went who bought it, it being a room beyond the blacksmith's shop; Alderson, B., said, "To come within the provisions. of these Acts the place must be more than a mere workshop, it must be a shop for the sale of articles. A workshop, such as a carpenter's shop or a blacksmith's shop, would not be within the Acts."(c) But where on an indictment for breaking and entering a shop, the building in question appeared to be an ordinary blacksmith's shop, containing a forge and used as a workshop only, not inhabited nor attached to any dwelling-house, but secured by a door fastened from the outside and a window shutter bolted within; Lord Denman, C. J., declined to be governed by the preceding case; as in his opinion this building had been proved to be such as to fall within the meaning of the statute.(d)

Upon an indictment for breaking into and stealing goods in a *warehouse, *95] it appeared that the prosecutor occupied a shop, which he used for selling various kinds of goods. In a cellar under the shop, and entered by descending a flight of steps from the street, he kept such goods as he had not at the time occasion to expose for sale in his shop. There was no inner communication between the house and shop or either of them and the cellar. The goods were stolen out of the cellar. Rolfe, B., held that the cellar was a warehouse within the statute.

(m) Rex v. Davis, MS., Bayley, J., and R. & R. 322. (n) See the section, ante, 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.). As to hard labor, see sec. 118; as to solitary confinement, see sec. 119; and as to whipping, see sec. 117, ante, p. 67. The Act does not extend to Scotland.

(b) See the section, ante, p. 67. And as to the proceedings against accessories, see vol. 1, p. 67, et seq.

(c) Reg. v. Sanders, 9 C. & P. 79 (38 E. C. L. R.). Note, however, that the prisoner was convicted.

(d) Reg. v. Carter, 1 C. & K. 173 (47 E. C. L. R.).

That a warehouse, in common parlance, certainly meant a place where a man stored or kept his goods, which were not immediately wanted for sale; and there was no reason to suppose that the Legislature used the term in the statute in a sense repugnant to its ordinary meaning.(e)

Upon an indictment for breaking and entering the counting-house of D. Gamble, and stealing therein, it appeared that Gamble was the proprietor of extensive chemical works, and that the prisoner broke and entered a building part of the premises, which was commonly called the machine-house, and stole therein a large quantity of money. In this building there was a weighing machine, at which all goods sent out were weighed, and one of Gamble's servants kept in that building a book, in which he entered all goods weighed and sent out. The account of the time of the men, employed in different departments, was taken in that building, and their wages were paid there; the books, in which their time was entered, were brought to that building for the purpose of making the entries and paying the wages. At other times they were kept in another building called the office, where the general books and accounts of the concern were kept. It was objected that this was not a counting-house; but, upon a case reserved, the judges were unanimously of opinion that there was abundant evidence that this was a counting-house within the 7 & 8 Geo. 4, c. 29, s. 15.(ƒ)

It has been held that an indictment upon sec. 15 of the 7 & 8 Geo. 4, c. 29, must expressly aver that the prisoner stole the goods in the shop, and that it is not sufficient to aver that the prisoner broke and entered the shop, and the goods "in the shop then and there being found feloniously did steal." (g)

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.(h)

*CHAPTER THE EIGHTH.

BREAKING INTO ANY HOUSE, ETC., WITH INTENT TO COMMIT FELONY.

[*96

By the 24 & 25 Vict. c. 96, s. 57, "Whosoever shall break and enter any dwelling-house, church, chapel, meeting-house, or other place of divine worship, or any building within the curtilage, school-house, shop, warehouse, or counting-house, with 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."(a)

This clause is new, and contains a very important improvement of the law. Formerly the offences here provided for were only misdemeanors at common law. Now it often happened that such an offence was very inadequately punished as a misdemeanor; especially after the night was in all cases to commence at nine o'clock in the evening; for in the winter at that time the poor in the rural districts were often in bed. Nor could anything be much more unreasonable than that the same acts done just after nine o'clock should be liable to penal servitude for life, (e) Reg. v. Hill, 2 M. & Rob. 458, Rolfe, B., added that the same objection had been taken before, and both he and Parke, B., thought that there was nothing in it. (f) Reg. v. Potter, 2 Den. C. C. R. 235.

(g) Reg. v. Smith, 2 M. & Rob. 115, Patteson, J. But upon this case being cited in Reg. v. Andrews, C. & M. 121 (41 E. C. L. R.), Coleridge, J., said he had spoken to Patteson, J., about it, and that that learned judge now thought the decision in Reg. v. Smith was not correct. See ante, p. 76. C. S. G.

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

(a) 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.

whilst if they were done just before nine, they could only be punished as a misdemeanor.

It is clear that, if on the trial of any indictment for burglary with intent to commit any felony, the breaking and entering were proved to have been before nine o'clock at night, the prisoner might be convicted under this clause. But upon an indictment in the ordinary form for house-breaking, &c., the prisoner could not be convicted under this clause; because it does not allege an intent to commit a felony. It will be well, however, to alter the form of the indictments in every case where a breaking into and stealing, &c., in any building mentioned in this clause is charged, and to allege a breaking and entry with intent to commit some felony, in the same manner as in an indictment for burglary with intent to commit a felony, and then to allege the felony that is supposed to have been committed in the house, &c. If this be done, then if the evidence fail to prove the commission of that felony, but prove that the prisoner broke and entered with intent to commit it, he may be convicted under this clause.

Principals in the second degree and accessories before the fact are punishable like *97] principals in the first degree; and accessories *after the fact are liable to imprisonment for any term not exceeding two years, by sec. 98 of the Act.(b) 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.(c)

Where, therefore, a prisoner was indicted on the 24 & 25 Vict. c. 96, s. 57, for breaking and entering a shop with intent to commit a felony, and it appeared that he had broken a large hole into the roof of the shop, but there was no evidence that he had in any way entered the shop, it was held that he might be convicted of an attempt to commit that felony under the 14 & 15 Vict. c. 100, s. 9.(d)

*98]

*CHAPTER THE NINTH.

OF ROBBERY AND ASSAULTS WITH INTENT TO ROB.

ROBBERY from the person appears to be well defined as "a felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear."(a)1

(b) Ante, p. 67. As to proceedings against accessories, see vol. 1, p. 67. (c) See the section, ante, vol. 1, p. 1.

(d) Reg. v. Bain, L. & C. 130.

(a) 2 East P. C. c. 16, s. 124, p. 707; Hickman's case, 1 Leach 280; 4 Blac. Com. 243; 1 Hawk. P. C. c. 34; 1 Hale 532; 3 Inst. 68. The force necessary to constitute robbery must be employed before (or at the time) the property is stolen. If the stealing be first, and the force afterwards, the offence is not robbery, but stealing from the person. Per Park, J., Smith's case, 1 Lewin 301. See post, 108.

1 To constitute robbery, there must be a felonious taking of property from the person of another, by force, either actual or constructive; but if force be used, it is not essential, that the prosecutor should be either aware, or afraid of the taking. Hence, when the prisoner took the persecutor by the cravat, with an intention to steal his watch, and also pressed his breast against the prosecutor's, and held him against a wall, during which time he took the prosecutor's watch from his fob, without his knowledge, and without his suspecting any intention of felony, this was held to be robbery. So decided upon special verdict, in the case of the Comm. v. Sneling, 4 Binn. 379, in which case it was observed among other things by Tilghman, C. J., "if a man is knocked down and rendered senseless, and in that situation his money is taken without his knowledge, it shall not avail the thief to say, that it was not taken against the consent of the man, whom he had rendered incapable of exercising the faculty of volition." "Fear is not an essential ingredient of robbery; force is sufficient." See Comm. v. Humphries, 7 Mass. Rep. 242. To constitute the crime of robbery, it is not necessary that the taking should be from the person of the owner; it is sufficient if it be done in the presence of the owner; as if by întimidation he