Evidence. To maintain the first count of this indictment, the prosecutor must prove→ 1. The entry of the defendant into the dwelling-house; or his being seen there, which of course will prove the entry. 2. The intent. This must be proved in the same manner as in the ordinary cases of burglary, from the words or acts of the prisoner. Indeed, the very fact of his being in the dwellinghouse of another, in the night time, without authority or excuse, and breaking out of the house, is strong presumptive evidence that he entered it with intent to steal; and the jury would be warranted in finding him guilty, unless he produce evidence sufficient to rebut the presumption. See Brice's case, ante, p. 340. 3. The breaking out of the house in the night time; that is to say, that the prisoner broke the house, and by that means got out of it. The breaking is proved in the same way as in the ordinary case of burglary. See ante, p. 330. Where a man broke out of a house, by lifting the heavy flap door of a cellar, which had no fastening, but was kept down by its own weight, Bolland, B., held that this was not a sufficient breaking out of the house. R. v. Lawrence and Weaver, 4 Car. & P. 231. We have seen, however, that it would be a good breaking into the house, to constitute burglary. See ante, p. 330. But a fair distinction may be taken between the two cases: such a flap door is a good security to a house against any person breaking in; but it is no more security against a person breaking out, than any other door having neither latch nor fastening, the opening of which would not be a breaking in or out. But raising the latch of a door, to get out, has been holden to be a breaking out, R. v. Wheeldon, 8 Car. & P. 747, in like manner as it is holden to be a breaking in. See ante, p. 330. This breaking out must be proved to have been in the night time, that is, between nine o'clock in the evening and six in the morning. 1 Vict. c. 86, s. 4. 4. That the house is a dwelling-house; see ante, p. 333; that C. D. was at the time of the burglary the occupier of it; see ante, p. 336; and that it is situate, as described in the indictment: see ante, p. 339:-in the same manner as upon an ordinary indictment for burglary. To maintain the second count of the indictment, the prosecutor must prove 1 1. The larceny or other felony in the dwelling-house, as stated in the indictment, in the same manner as in ordinary cases upon an indictment for that felony alone. 2. That after committing the felony, the defendant broke out of the house, as under the first count, supra. If you fail to prove this, the defendant still may be convicted of a larceny in the dwelling-house, if the goods stolen be of the value of five pounds; or of a simple larceny if of a less value. 4. Breaking and Entering a Building within the Curtilage, to wit. and Stealing. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of in the year of our Lord feloniously did break and enter a certain building of C. D. situate at, in the county of -, (the said building being then within the curtilage of the dwelling-house of the said C. D., there situate, and by the said C. D. then occupied therewith, and there being then no communication between the said building and the said dwelling-house, either immediate or by means of any covered and inclosed passage leading from the one to the other); and that the said A. B. then in the said building feloniously did steal, take, and carry away one gold watch ["chattel, money, or valuable security"] of the value of five pounds, of the goods and chattels of the said C. D., in the said building then being found against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony; 7 & 8 G. 4, c. 29, s. 14; transportation for not more than fifteen years, nor less than ten ;—or imprisonment, with or without hard labour, for not more than three years. 1 Vict. c. 90, s. 2. Accessories before the fact, the same punishment; 11 & 12 Vict. c. 46, s. 1, ante, p. 16; accessories after the fact (not being receivers of the stolen property) by imprisonment, with or without hard labour, for not more than two years. 7 & 8 G. 4, c. 29, ss. 6, 4. Evidence. To maintain this indictment, the prosecutor must prove 1. The breaking and entry, as in burglary; see ante, pp. 330, 332; except that it is immaterial whether it was in the night or in the day. 2. That the building is within the curtilage of the dwelling-house. In the first place, it is clear that no building which has a communication with the dwelling-house, either immediate (that is, by a door leading immediately into the dwelling-house), or by means of any covered or inclosed passage, leading from one to the other, is a building within the meaning of this indictment. 7 & 8 G. 4, c. 29, s. 14. Also buildings clearly within the curtilage, and not communicating thus with the dwelling-house, if they be let by the occupier of the latter to a third person, are not buildings within the meaning of this indictment; see ante, p. 336; the buildings here meant, are the out-houses actually occupied with the dwelling-house, and within its curtilage, but not communicating therewith as above mentioned. Where upon a trial for this offence, it appeared that the building broken into was situate in the fold-yard of the prosecutor's farm, in which were all the farm buildings, that the back door of the dwelling-house opened into what was called the pump-yard, which was separated from the fold-yard by a wall four feet high, in which there was a gate, and there was also a gate in the fold-yard opening into the highway: it was objected that the building was not within the curtilage of the dwelling-house, inasmuch as the pump-yard intervened between them; but Wightman, J., after conferring with Erskine, J., held that it was a building within the curtilage. R. v. Gilbert et al., 1 Car. & K. 84. Before this statute, 7 & 8 G. 4, c. 29, when out-houses within the curtilage were deemed parcel of the dwelling-house, with respect to burglary, whether they communicated with the dwelling-house in the manner here mentioned or not,-it often became a question whether an out-house particularly situated was within the curtilage of the dwelling-house. Hawkins lays it down, that all out-buildings, as barns, stables, dairy-houses, &c., adjoining to a house, are looked upon as part thereof, and consequently burglary might be committed in them; but that if they stood at any distance from the house, it had not been usual to proceed against offences therein as burglaries. 1 Hawk. c. 38, 88. 21, 22. And it had been decided that an out-house, occupied by the prosecutor with his dwelling-house, but separated therefrom by a passage eight feet wide, and not connected with the dwelling-house by any fence inclosing both, was not a place in which a burglary could be committed. R. v. Garland, 1 Hawk. c. 38, s. 23; and see R. v. Westwood, ante, p. 333, S. P. A bake-house, eight or nine yards distant from the dwelling-house, but connected with it by means of a paling, was holden to be the subject of burglary. Castle's case, 1 Hale, 558. So, it was holden that a burglary might be committed in a shop adjoining the dwellinghouse, not having any internal communication with it, and the doors of both opening on the street, there being a small court yard before them which included both the house and shop. R. v. Gibson et al., 1 Leach, 357. 2 East, P. C. 508. 1 Hawk. c. 38, s. 25. Where the prosecutor's premises consisted of his dwelling-house and his warehouse adjoining, both opening into the street, and having no internal communication; but there was a yard at the back, which inclosed them both, and each had a back door opening upon this yard: the warehouse having been broken and entered, the judges held that it was rightly described in the indictment as the dwelling-house of the prosecutor. R. v. Lithgo, R. & Ry. 357. And the same was decided as to a range of workshops adjoining the dwelling-house, all opening into the street, but all having doors at the back opening into a yard belonging to the dwelling-house. R. v. Chalking et al.,R. & Ry. 334. So, where the dwelling-house and warehouse of the prosecutor had separate entrances from the street, and each had a back door opening into a yard belonging to the prosecutor, this yard was inclosed by the house and other buildings of the prosecutor, and by a wall, and gates which were closed and fastened at night; the warehouse and dwelling-house were within the same range of buildings, but between them was another dwelling-house, opening into the yard, which was formerly part of the prosecutor's dwelling-house, but which he had separated from it, and let to a person who occupied it, together with some easements in the yard, as his yearly tenant: the warehouse having been broken and entered, the judges held it to be part of the dwelling-house; it was so before the division of the houses, and they thought it remained so after it. R. v. Walters et al., Ry. & M. 13. As this indictment states that there is no communication between the said building and the said dwelling-house, either immediate or by means of any covered and inclosed passage leading from the one to the other, the prosecutor should be prepared to prove it. And therefore if there be a doubt whether the building in question may not be deemed such as is the subject of burglary or house-breaking, it may be prudent to add a count for it; for otherwise the defendant probably would be liable to be convicted only of a simple larceny. 3. The larceny in the building, in the same manner as in ordinary cases. The value is immaterial. 4. That the building is locally situated as described in the indictment, in the same manner as in burglary. See ante, p. 339. But if there be any mistake in this respect, the indictment may be amended at the trial. See ante, p. 100. 5. Housebreaking. Indictment. The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the in the year of our Lord the dwelling-house of C. D., situate at day of feloniously did break and enter in the county of and then in the said dwelling-house feloniously did steal, take, and carry away certain money of the said C. D., and one cloth coat, and one linen shirt, of the goods and chattels of the said C. D., [" chattels, money, or valuable security,"] in the said dwelling-house then being found: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony; 7 & 8 G. 4, c. 29, s. 12; transportation for not more than fifteen years, nor less than ten ;-or imprisonment, with or without hard labour, for not more than three years. 1 Vict. c. 90, s. 1. As to the punishment of accessories before or after the fact, see ante, pp. 16, 19. As to costs, see ante, p. 186; costs of apprehension, see ante, p. 189. Evidence. To maintain this indictment, the prosecutor must prove 1. The breaking and entering, as in burglary; see ante, pp. 330, 332; except that it is not necessary that it should be in the night time. But if it turn out in evidence that the breaking or entering was after the hour of nine at night, or before six in the morning, as in burglary, still it should seem that the defendant may be convicted; for the words of the statute on which the indictment is framed, are, "If any person shall break and enter any dwelling-house, and steal therein," &c., without saying in the night or in the day. Where one of two prisoners never entered the house, but stood outside whilst he sent the other to break and enter it, and to steal some money from a particular place to which he directed him the judges held that he might be indicted for breaking and entering the house, as principal in the first degree. R. v. Byford & Robinson, R. & Ry. 521. See ante, pp. 12, 13. 2. That the house broken was a dwelling-house or out-house parcel of it, as in burglary. See ante, p. 333. And by stat. 7 & 8 G. 4, c. 29, s. 13, no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed part of such dwelling-house for the purpose of |