securely at night. (m) And it is observable that it is elsewhere given as a reason why the breaking and entering, if both in the night, need not be both in the same night, that it shall be supposed that the thieves brake and entered in the night when they entered, for that the breaking makes not the burglary till the entry; (n) which reasoning, if applied to a breaking in the day-time and an entering in the night, would seem to refer the whole transaction to the entry, and make such breaking and entering also a burglary. commit a IV.—The last part of the definition of burglary relates to of the inthe intent. The act of breaking and entering the mansion- tent to house in the night must be done "with intent to commit some felony. felony within the same, whether such felonious intent be executed or not." (o) to commit a trespass If the intention of the entry be either laid in the indictment, An intent or appear upon the evidence, to have been only for the purpose of committing a trespass, the offence will not be burgla- will not be ry. Therefore, an intention to beat a person in the house sufficient. will not be sufficient to sustain the indictment; for though killing or murder may be the consequence of beating, yet if the primary intention were not to kill, the intention of beating will not make burglary. (p) The entry must be for a felonious purpose. (q) It should however be observed, that if a felony be actually committed, the act will be primâ facie pregnant evidence of an intent to commit it; and it is a general rule, that a man who commits one sort of felony in attempting to commit another, cannot excuse himself upon the ground that he did not intend the commission* of that particular offence. (r) But it seems that this must be confined to cases where the offence intended is in itself a felony. (s) 943] The prisoner was indicted for burglary, in breaking and Dobbs's entering the stable of one James Bayley, part of his dwell- case. ing-house, in the night, with a felonious intent to kill and destroy a gelding of one A. B. there being. The facts were, that the gelding was to have run for forty guineas, and that the prisoner cut the sinews of his fore leg to prevent his running, in consequence of which he died. Parker, Ch. B. before whom the prisoner was tried, ordered him to be acquitted, on the ground that his intention was not to commit the felony by killing and destroying the horse, but a trespass only to prevent his running; and that therefore no burglary. (t) r1 Hale 560. 2 East. P. C. c. 15. s. 22. p. 509. s. 25. p. 514, 515. Kel. 47. s 2 East. P. C. c. 15. s. 25. p. 515. t Dobbs's case, cor. Parker, Ch. B. Buckingham Sum. Ass. 1770, 2 East. P. C. c. 15. s. 25. p. 513. But it appears that the prisoner was again indicted for killing the horse, and capitally convicted. Id. ibid. Dingley's case. * 944] Case of The prisoner, being a servant or journeyman to one John Fuller, was employed to sell goods, and receive the money for his master's use. In the course of the trade he sold a large parcel of goods, for which he received a hundred and sixty guineas, none of which he put into the till, nor in any way gave into his master's possession; but deposited ten guineas of the sum in a private place in the chamber where he slept, and carried off the remaining hundred and fifty on leaving his service, from which he decamped before the embezzlement was discovered. He left a trunk containing some of his clothes, as well as the ten guineas, behind him; but afterwards in the night time broke open his master's house, and took away with him the ten guineas which he had so deposited in the private place in his bed-chamber. This was held to be no burglary, because the taking of the money was no felony; for although it was the master's money* in right, it was the servant's money in possession, and the original act was no felony. (u) In another case also, the decision proceeded upon the same Knight and ground, namely, that the intention was not to commit a feloRoffey. ny. The prisoners were indicted for a burglary in the dwelling-house of Mary Snelling, the intent being laid to steal the goods of one Leonard Hawkins. It appeared that Hawkins, who was an excise officer, had seized some bags of tea in a shop entered in the name of Smith, as being there without a legal permit; and had removed them to Mary Snelling's, where he lodged. The prisoners and many other persons broke open Mary Snelling's house in the night, with intent to take this tea. It was not proved that Smith was in company with them; but the witnesses said, that they supposed the tea to belong to Smith; and supposed that the fact was committed either in company with him, or by his procurement. The jury, being directed to find as a fact with what intent the prisoners broke and entered the house, found that they intended to take the goods on the behalf of Smith; and, upon the point being reserved, all the Judges were of opinion that the indictment was not supported; as, however outrageous the conduct of the prisoners was, in so endeavouring to get back Smith's goods, still there was no intention to steal. (x) u Dingley's case, cited by Const. arguendo in Bazeley's case, 2 Leach 840, 841. where he mentions it as cited by Sir B. Shower, in his argument in the case of Rex v. Meers, 1 Show. 53. and there said to be reported by Gouldsborough 186. Mr. Const further said, that he had been favoured with a manuscript report of it, extracted from a collection of cases in the possession of the late Mr. Reynolds, clerk of the arraigns at the Old Bailey, under the title of Rex v. Dingley, by which it appeared that the special verdict was found at the Easter Sessions, 1687, and argued in the King's Bench in Hil. T. 3 Jac. II. and in which it was said to have been determined that this offence was not burglary, but trespass only. See the case cited also as Rex v. Dingley, 1 Hawk. P. C. c. 38. s. 37. and as a case Anon. in 2 East. P. C. c. 15. s. 22. p. 510. T Rex v. Knight and Roffey, East T. 1782. 2 East. P. C. c. 15. s. 22. p. 510. Some of the Judges held, that if the indictment had been for breaking the house with intent feloniously to rescue goods seized, &c. which was made intended may be common *It is quite clear, therefore, that the entry must be with a The felony felonious intent. And it seems also to be now well established, contrary to some opinions which have been formerly en- either fetertained upon the point, (y) that it makes no difference lony at whether the offence intended were felony at common law, or law or by only created so by statute; and the reason given for the bet- statute. ter opinion is this, that whenever a statute makes any offence felony, it incidentally gives it all the properties of a felony at common law. (≈) tended proved ac It is necessary to ascertain with exactness the felony really The felony intended, as it must be laid in the indictment, and proved, really inagreeably to the fact. And a felony intended to be commit- must be ted will not support an indictment charging a felony actually stated corcommitted. Thus where, upon an indictment for burglary rectly, and and stealing goods, it has appeared that there were no goods cording to stolen, but that the burglary was with intent to steal; it has the fact. been holden that the indictment was not supported by the evidence. (a) So, if it be alleged, that the entry was with intent to commit one sort of felony, and it appears upon the facts that it was with intent to commit another; it will not be sufficient. (b) And where the charge *is of a felony intended [* 946] to be committed by stealing goods, the property in the goods must be correctly stated. Thus, where an indictment charged a burglary in the house of one Joseph Davis, with intent to steal the goods of the said Joseph Wakelin; and it appeared that no such person as Joseph Wakelin had any property in the house, but that in fact the name Wakelin had been inserted by mistake in the indictment instead of Davis, though Lawrence J. before whom the prisoner was tried, inclined to think that the mistake was not material as to the burglary, a majority of the Judges were afterwards of opinion (the point being saved for their consideration), that in an indictment of this description it was necessary to shew to whom the property belonged, in order to render the charge complete; and that the words "of the said Joseph Wakelin," being material, could not be rejected as surplusage. (c) But if the indictment charge a burglary with intent to felony by 19 Geo. II. c. 34. (inany provisions of which are now repealed, see ante, 166.) it would have been burglary. But they agreed, that even in that case some evidence would have been necessary on the part of the prosecutor as to the goods being uncustomed, in order to throw the proof that the duty was paid on the prisoners: but that the goods being found in oil cases, or in great quantities in an unentered place, would have been sufficient for that purpose. As to the latter point, see ante, 185. y 1 Hale 562. Crompt. 32. 2 East. P. C. c. 15. s. 22. p. 511. 1 Hawk. P. C. c. 38. s. 38. 4 Black. Com. 228. 1 Bac. Ab. Burglary (F.) 2 East. VOL. II. 5 P. C. c. 15. s. 22. p. 511. Rex v. Locost and a 2 East. P. C. c. 15. s. 25. p. 514. Vander- e Jenks's case, O. B. 1796, cor. Macdonald, Ch. B., Buller, J., and Lawrence, J., and considered of by the Judges, Mich. T. 1796, 2 Leach 774. 2 East. P. C. c. 15. s. 25. p. 514. where it is said, that this it seems is not like the case of laying a robbery in the dwellling-house of A. which turns out to be the dwelling-house of B., because that circumstance is perfectly immaterial in robbery, which is ousted of clergy generally. in the in dictment. commit a felony, it will be supported by evidence of a felony actually committed. (d) And 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. (e) It should be observed also, that different intents may be But different intents stated in the indictment. Thus, where the first count of an may be laid indictment for burglary laid the fact to have been done with intent to steal the goods of a person; and the second *count [* 947] laid it with intent to murder him; it was objected, upon a general verdict of guilty, that there were two several capital charges in the same indictment, tending to deprive the prisoner of the challenges to which he would have been entitled if there had been distinct indictments, and also tending to perplex him in his defence; but the indictment was holden good, on the ground that it was the same fact and evidence, only laid in different ways. (f) Of the proceedings. Indictment. that the fact was done in the night. Having thus treated of the offence of burglary, according to its definition, we may enquire shortly concerning the proceedings against offenders by indictment. It is essential that the indictment should state the fact to Allegation have been done in the night, noctanter, or nocte ejusdem diei. (g) And it must also express at about what hour of the night it happened; as where an indictment only alleged the fact to have been committed in the night, but did not express about what hour it was done, Gould, J. held it insufficient as for a burglary, and directed the prisoner to be found guilty of a simple felony only. And he gave as a reason, that as the rule now established is that a burglary cannot be committed during the crepusculum, it is therefore necessary to specify the hour, in order that the fact may appear, upon the face of the indictment, to have been done between the twilight of the evening and that of the morning. (h) It is not necessary, however, that the evidence should correspond with the allega[* 948] tion as to the hour, so that it shews the fact to have been committed in the night. (i) Allegation as to the The offence must be laid, as we have seen, to have been committed in a mansion-house, or dwelling-house, the term dwellingmansion or house being that more usually adopted in modern practice. (k) It would not be sufficient to lay it generally as having been com dwelling house. d Rex v. Locost and Villars, Kel. 30 an indictment for a burglary with intent to commit a rape, and evidence of a rape actually committed. e 1 Hale 560. 2 East. P. C. c. 15. s. 25. p. 514. fThompson's case, Norfolk Sum. Ass. 1781, and Mich. T. 1781, when the case was considered of by seven Judges only, who were unanimous that the indictment was good. 2 East. P. C. c. 15. s. 26. p. 515. g 1 Hale 549. Ante, 900, 940. h Waddington's case, Lancaster Lent Ass. 1771. 1 Burn's Just. Burglary. S. 1. 2 East. P. C. c. 15. s. 24. p. 513. In 2 Hale 179. it is said, that the indictment ought to be tali die circa horam decimam in nocte ejusdem diei felonicè et burglariter fregit; but that according to some opinions burglariter carries a sufficient expression that it was done in the night. i 2 East. P. C. c. 15. s. 24. p. 513. mitted in a house. (1) Where the burglary has been committed in an outhouse, which by law is considered as part of the dwellinghouse, it must be laid as having been done in the dwellinghouse, or in a stable, barn, &c. part of the dwelling-house; either of which statements may be adopted. (m) The parish in which the dwelling-house is laid to be situate must be correctly stated, as a variance in this respect will be fatal. (n) The allegation of the offence having been committed in a mansion-house, must be understood, however, as confined to burglaries in private houses; for though it has been quaintly observed, that a church is domus mansionalis Dei, (o) it is the better opinion that the indictment, in the case of a burglary committed in a church, need not proceed upon such a supposition, but will be more properly framed, according to the truth of the fact, by stating the offence to have been committed in the parish church of the parish to which it belongs. (p) er of the It is necessary to state the name of the owner of the Statement dwelling-house, in the indictment, with accuracy, and such of the name *certainty to a common intent, as is, in general, necessary in [* 949] the description of a party who has sustained an injury. (q) of the ownIn a case where the indictment stated the burglary to have dwelling. been committed in the shop cujusdam Ricardi, without men- house. tioning the sirname of the owner, it was doubted whether it was good. (r) And where the name of the owner of the dwelling-house was altogether mistaken, as where the indictment laid the burglary to have been committed in the dwelling-house of John Snoxall, and it appeared that it was not the dwelling-house of John Snoxall, it was holden that the prisoner could not be found guilty either of the burglary, or of stealing to the amount of forty shillings in the dwelling house: it being essential in both cases, to state in the indictment the name of the person in whose house the offences are committed. (s) And where the prisoner was indicted for stealing in the dwelling-house of Sarah Lunns, and it appeared in evidence that her name was Sarah London; the variance was holden to be fatal to the capital part of the indictment. (t) The terms of art usually expressed by the averment "fe- Terms of 7 1 Hale 550. m Garland's case, 1 Leach 144. where an outhouse baving been broken open, the indictment was for breaking and entering the dwelling-house and Dobbs's case, 2 East. P. C. c. 15. s. 4. p. 512. and s. 25. p. 513. where the indictment was for breaking and entering the stable of J. B. part of his dwelling-house. n 2 Stark. Crim. Plead. 415. note (c). o 3 Inst. 64. p 1 Hale 556. 1 Hawk. P. C. c. 38. s. 17. 2 East. P. C. c. 15. s. 24. p. 512. q 2 East. P. C. c. 15. s. 24. p. 513. 1 Chit. Crim. Law 215, et sequ. 3 Chit. Crim. r Cole's case, Moor 466. 1 Hale 558. 2 s White's case, O. B. 1783. 1 Leach 252, 2 East. P. C. c. 15. s. 24. p. 513. t Woodward's case, O. B. 1785. cor. Adair, Serjeant, Recorder. 1 Leach 253, note (a). " |