:

v. Wenmouth, 8 Cox, 348. The breaking open chests is not burglary 1 Hale, 554. The breaking must be of some part of the house; and therefore, where the defendant opened an area gate with a skeleton key, and then passed through an open door into the kitchen, it was holden not to be a breaking, there being no free passage from the area to the house in the hours of sleep: R. v. Davis, R. & R. 322; R. v. Bennett, R. & R. 289; R. v. Paine, 7 C. & P. 135. It is essential that there should be an entry as well as a breaking, and the entry must be connected with the breaking: 1 Hale, 555; R. v. Davis, 6 Cox, 369; R. v. Smith, R. & R. 417. It is deemed an entry when the thief breaketh the house, and his body or any part thereof, as his foot or his arm, is within any part of the house; or when he putteth a gun into a window which he hath broken, though the hand be not in, or into a hole of the house which he hath made, with intent to murder or kill, this is an entry and breaking of the house; but if he doth barely break the house, without any such entry at all, this is no burglary: 3 Inst. 64; 2 East, P. C. 490. Thieves came by night to rob a house; the owner went out and struck one of them; another made a pass with a sword at persons he saw in the entry, and, in so doing, his hand was over the threshold: this was adjudged burglary by great advice: 2 East, P. C. 490.

In Gibbon's Case evidence that the prisoner in the night time cut a hole in the window-shutters of a shop, part of a dwelling-house, and putting his hand through the hole took out watches, etc. was holden to be burglary although no other entry was proved: 2 East, P. C. 490. Introducing the hand through a pane of glass, broken by the prisoner, between the outer window and the inner shutter, for the purpose of undoing the window latch, is a sufficient entry: R. v. Bailey, R. & R. 341. So would the mere introduction of the offender's finger: R. v. Davis, R. & R. 499. So an entry down a chimney is a sufficient entry in the house for

a chimney is part of the house: R. v. Brice, R. & R. 450; s. 407, post.

It is even said that discharging a loaded gun into a house is a sufficient entry: 1 Hawk. 132. Lord Hale, 1 vol. 155, is of a contrary opinion, but adds quære? 2 East, P. C. 490, seems to incline towards Hawkins' opinion. Where thieves bored a hole through the door with a centrebit, and parts of the chips were found in the inside of the house, this was holden not a sufficient entry to constitute burglary: R. v. Hughes, 2 East, P. C. 491. If divers come in the night to do a burglary, and one of them break and enter, the rest of them standing to watch at a distance, this is burglary in all: 1 Burn, 550.

In R. v. Spanner, 12 Cox, 155, Bramwell, B., held, that an attempt to commit a burglary may be established on proof of a breaking with intent to rob the house, although there be no proof of an actual entry. The prisoner was indicted for burglary, but no entry having been proved a verdict for an attempt to commit a burglary was given.

The intent.-There can be no burglary but where the indictment both expressly alleges, and the verdict also finds, an intention to commit some felony (now any indictable offence); for if it appear that the offender meant only to commit a trespass, as to beat the party or the like, he is not guilty of burglary: 1 Hale, 561. The intent must be proved as laid. Where the intent laid was to kill a horse, and the intent proved was merely to lame him in order to prevent him from running a race, the variance was holden fatal: R. v. Dobbs, 2 East, P. C. 513. It is immaterial whether the felonious intent be executed or not; thus, they are burglars who, with a felonious intent, break any house or church in the night, although they take nothing away. And herein this offence differs from robbery, which requires that something be taken though it be not material of what value. The felonious intent with which the prisoner broke and entered the house cannot be proved by positive testimony;

it

it can only be proved by the admission of the party, or by circumstances from which the jury may presume it. Where appears that the prisoner actually committed a felony after he entered the house this is satisfactory evidence and almost conclusive that the intent with which he broke and entered the house was to commit that felony. Indeed, the very fact of a man's breaking and entering a dwelling-house in the night time is strong presumptive evidence that he did so with intent to steal, and the jury will be warranted in finding him guilty upon this evidence merely: R. v. Brice, R. & R. 450; R. v. Spanner, 12 Cox, 155. If the intent be at all doubtful it may be laid in different ways in different counts: R. v. Thompson, 2 East, P. C. 515; 2 Russ. 45. It seems sufficient, in all cases where a felony has actually been committed, to allege the commission of it, as that is sufficient evidence of the intention. But the intent to commit a felony (now any indictable offence), and the actual commission of it, may both be alleged; and in general this is the better mode of statement: R. v. Furnival, R. & R. 445. As to punishment see post, s. 410.

PART XXX.

BURGLARY AND HOUSEBREAKING.

DEFINITIONS.

407. In this part the following words are used in the following senses: (a) "Dwelling-house means a permanent building the whole or any part of which is kept by the owner or occupier for the residence therein of himself, his family or servants, or any of them, although it may at intervals be unoccupied ;

(i) A building occupied with, and within the same curtilage with, any dwelling-house shall be deemed to be part of the said dwelling-house if there is between such building and dwelling-house a communication, either immediate or by means of a covered and inclosed passage, leading from the

one to the other, but not otherwise. R. S. C. c. 164, s. 36. 24-25 V. c. 96, 8. 53 (Imp.).

(b) To "break" means to break any part, internal or external, of a building, or to open by any means whatever (including lifting, in the case of things kept in their places by their own weight), any door, window, shutter, cellarflap or other thing intended to cover openings to the building, or to give passage from one part of it to another;

(i) An entrance into a building is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by him, is within the building;

(ii) Every one who obtains entrance into any building by any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, shall be deemed to have broken and entered that building.

These definitions are taken from the English draft where they are given as existing law.

BREAKING PLACES OF WORSHIP.

408. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who breaks and enters any place of public worship and commits any indictable offence therein, or who having committed any indictable offence therein, breaks out of such place. R. S. C. c. 164, s. 35. (Amended). 24-25 V. c. 96, s. 50 (Imp.).

A tower of a parish church is a part of the church; so is the vestry: R. v. Wheeler, 3 C. & P. 585; R. v. Evans, Car. & M. 298.

The goods of a dissenting chapel, vested in trustees, cannot be described as the goods of a servant put in charge of the chapel and the things in it: R. v. Hutchinson, R. & R. 412. Where the goods belonging to a church are stolen they may be laid in the indictment to be the goods of the parishioners: 2 Russ. 73.

Indictment for breaking and entering a church and stealing therein.— a place of public worship, to wit,

the church of the parish of

in the county of

unlawfully did break and enter, and there, in the said

church, one silver cup of the goods and chattels of
unlawfully did steal: see ss. 619-620.

Indictment for stealing in and breaking out of a
A. B., one silver cup,

church.

that at

in a place of public

of the goods and chattels of worship, to wit, the church of the said parish there situate, unlawfully did steal, and that the said (defendant) so being in the said church as aforesaid, afterwards, and after he had so committed the said offence in the said church, as aforesaid, on the day and year aforesaid, unlawfully did break out of the said church: see ss. 619-620.

If a chapel which is private property be broken and entered lay the property as in other cases of larceny. If the evidence fails to prove the breaking and entering a church, etc., the defendant may be convicted of simple larceny. Upon the trial of any offence under this section the jury may, under s. 711, convict of an attempt to commit such offence.

BREAKING PLACE OF WORSHIP WITH INTENT.

409. Every one is guilty of an indictable offence and liable to seven years' imprisonment who breaks and enters any place of public worship with intent to commit any indictable offence therein. R. S. C. c. 164, s. 42 (amended). 24-25 V. c. 96, s. 57 (Imp.)

See form under s. 412, post.

BURGLARY-PUNISHMENT.

410. Every one is guilty of the indictable offence called burglary, and liable to imprisonment for life, who—

(a) breaks and enters a dwelling-house by night with intent to commit any indictable offence therein; or

(b) breaks out of any dwelling-house by night, either after committing an indictable offence therein, or after having entered such dwelling-house, either by day or by night, with intent to commit an indictable offence therein. R. S. C. c. 164, s. 37 (Amended). 24-25 V. c. 96, ss. 51, 52 (Imp.).

Section 3, ante, declares what is "

night."

If a person commits a felony in a house, and afterwards breaks out of it in the night-time, this is burglary, although he might have been lawfully in the house; if, therefore, a lodger has committed a larceny in the house and in the night-time even lifts a latch to get out of the house with the stolen property, this is a burglarious breaking out of the house R. v. Wheeldon, 8 C. & P. 747.