It has been held that getting out of a house by pushing up a new trap-door, which was merely kept down by its own weight, and on which fastenings had not yet been put, but the old trap-door, for which this new one was substituted, had been secured by fastenings, was not a sufficient breaking out of the house: R. v. Lawrence, 4 C. & P. 231. On this case Greaves says: "unless a breaking out of a house can be distinguished from the breaking into a house, this case seems overruled by R. v. Russell, 1 Moo. 377."

If the felon, to get out of the dwelling-house, should break an inside door the case would plainly enough be within the statute. But the facts of the cases seen not to have raised the question, absolutely to settle it, whether where the intent is not to get out the breach of an inner door by a person already within, having made what is tantamount to a felonious entry, but not by breaking, is sufficient to constitute burglary, if there is no entry through the inner door thus broken. There are indications that the breaking alone in such circumstances may be deemed enough: R. v. Wheeldon, supra. On the other hand, it was held that burglary is not committed by an entry, with felonious intent, into a dwelling-house, without breaking, followed by a mere breaking, without entry, of an inside door: R. v. Davis, 6 Cox, 369; 2 Bishop Cr. L. 100. But in Kelyng's Cr. C. 104, it is said that if a servant in the house, lodging in a room remote from his master in the night-time, draweth the latch of a door to come into his master's chamber, with an intent to kill him, this is burglary.

On any indictment for burglary the prisoner may be convicted of the offence of breaking the dwelling-house under s. 412, post.

On an indictment for burglary the prisoner cannot be found guilty of felonious receiving: St. Laurent v. R., 7 Q. L. R. 47.

Indictment for burglary and larceny to the value of twenty-five dollars.that J. S., on

about the hour of eleven of the clock, of the night of the same day, the dwelling-house of J. N., situate

unlawfully

and burglariously did break and enter, with intent the goods and chattels of one K. O. in the said dwelling-house then being, unlawfully and burglariously to steal; and then in the said dwelling-house, 'one silver sugar basin, of the value of ten dollars, six silver table-spoons of the value of ten dollars, and twelve silver tea-spoons of the value of ten dollars, of the goods and chattels of the said K. O. in the said dwelling-house then being found, unlawfully and burglariously did steal.

Upon this indictment the defendant, if all the facts are proved as alleged, may be convicted of burglary; if they are all proved, with the exception that the breaking was by night, the defendant may be convicted of housebreaking, under s. 411; if no breaking be proved, but the value of the property stolen proved to be, as alleged, over twentyfive dollars, the verdict may be of stealing in a dwellinghouse to that amount, under s. 345, ante; if no satisfactory evidence be offered to show, either that the house was a dwelling-house or some building communicating therewith, or that it was the dwelling-house of the party named in the indictment, or that it was locally situated as therein alleged, or that the stolen property was of the value of twenty-five dollars, still the defendant may be convicted of a simple larceny; s. 713: 1 Taylor, Ev. 216; R. v. Comer, 1 Leach, 36; R. v. Hungerford, 2 East, P. C. 518. Where several persons are indicted together for burglary and larceny the offence of some may be burglary and of the others only larceny: R. v. Butterworth R. & R. 520. See post, remarks under s. 415.

If no indictable offence was committed in the house the indictment should be as follows:

that A B., on

about the hour of eleven in the the dwelling-house of J.

night of the same day, at N. there situate, unlawfully and burglariously did break and enter, with intent the goods and chattels of the said J. N. in the said dwelling-house then and there being found, then and there unlawfully and burglariously to steal.

The terms of art usually expressed by the averment. "burglariously did break and enter" are essentially necessary to the indictment. The word burglariously cannot be expressed by any other word or circumlocution; and the averment that the prisoner broke and entered is necessary, because a breaking without an entering, or an entering without a breaking, will not make burglary: 2 Russ. 50: see s. 611, post. The offence must be laid to have been committed in a mansion-house or dwelling-house, the term dwelling-house being that more usually adopted in modern practice. It will not be sufficient to say a house: 2 Russ. 46; 1 Hale, 550. It has been said that the indictment need not state whose goods were intended to be stolen, or were stolen: R. v. Clarke, I C. & K. 421; R. v. Nicholas, 1 Cox, 218; R. v. Lawes, 1 C. & K. 62; nor specify which goods, if an attempt or an intent to steal only is charged: R. v. Johnson, L. & C. 489: see s. 613, post.

It is better to state at what hour of the night the acts complained of took place, though it is not necessary that the evidence should correspond with the allegation as to the exact hour; it will be sufficient if it shows the acts to have been committed in the night as this word is interpreted by the statute. However, in R. v. Thompson, 2 Cox, 377, it was held that the hour need not be specified, and that it will be sufficient if the indictment alleges in the night.

Indictment for burglary by breaking out.

J. S., on

that

about the hour of eleven in the night of the same day, being in the dwelling-house of K. O., situate

one silver sugar-basin of the value of ten dollars, six silver table-spoons of the value of ten dollars, and twelve silver tea-spoons of the value of ten dollars, of the goods and chattels of the said K. O., in the said dwellinghouse of the said K. O., then being in the said dwellinghouse, unlawfully did steal, and that he, the said J. S., being so as aforesaid in the said dwelling-house, and having committed the offence aforesaid, in manner and form aforesaid, afterwards, to wit, on the same day and year aforesaid, about the hour of eleven in the night of the same day, unlawfully and burglariously did break out of the said dwelling-house of the said K. O.

An indictment alleging "did break to get out" or "did break and get out" is bad; the words of the statute are "break out:" R. v. Compton, 7 C. & P. 139. See pages 471 et seq. ante; R. v. Lawrence, 4 C. & P. 231; R. v. Wheeldon, 8 C. & P. 747, and remarks on burglary. If it be doubtful whether an indictable offence can be proved, but there be sufficient evidence of an intent to commit such an offence, a count may be added stating the intent. To prove this count the prosecutor must prove the entry, the intent as in other cases, and the breaking out.

Upon the trial of any offence herein before mentioned the jury may convict of an attempt to commit such offence, if the evidence warrants it, under s. 711, post.

HOUSEBREAKING AND COMMITTING AN OFFENCE.

411. Every one is guilty of the indictable offence called housebreaking, and liable to fourteen years' imprisonment, who

(a) breaks and enters any dwelling-house by day and commits any indictable offence therein; or

(b) breaks out of any dwelling-house by day after having committed any indictable offence therein. R. S. C. c. 164, s. 41 (Amended). 24-25 V. c. 96, 8. 56 (Imp.).

See cases cited in R. v. Hughes, Warb. Lead. Cas, 190. The words "schoolhouse, shop, warehouse or countinghouse," in the repealed section have been omitted: see post, s. 413.

The breaking and entering must be proved in the same manner as in burglary, except that it need not be proved to have been done in the night-time. But if it be proved to have been done in the night-time, so as to amount to burglary, the defendant may, notwithstanding, be convicted upon this indictment: R. v. Pearce, R. & R. 174; R. v. Robinson, R. & R. 321; Archbold, 399. And so, also, any breaking and entering which would be sufficient in a case of burglary would be sufficient under this section. 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 indictment for housebreaking: R. v. Wenmouth, 8 Cox, 348. The value of the goods is immaterial if a breaking and entry be proved; but if proved and alleged to be of the value of twenty-five dollars, the prisoner may be convicted of the offence described in s. 345, ante; if the prosecutor succeed in proving the larceny, but fail in proving any of the other aggravating circumstances, the defendant may be convicted of simple larceny. The same accuracy in the statement of the ownership and situ ation of the dwelling-house is necessary in an indictment for this offence as in burglary. But it must be remembered that any error in these matters may now be amended.

As in simple larceny, the least removal of the goods from the place where the thief found them, though they are not carried out of the house, is sufficient 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 this was a sufficient removal of them to constitute the offence: R. v. Amier, 6 C. & P. 344.

As to what was a shop under the repealed section (see post, s. 413), it was once said that it must be a shop for the