art-bur- loniously and burglariously did break and enter" are essenglariously, tially 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. (u) -and broke and entered. and of joining burglary and larceny in the same [* 950] *With respect to the intent, it is clear that it must be exOf laying pressly alleged in the indictment, and proved agreeably to the intent; the fact, either that the party committed a felony in the dwelling-house, or that he broke and entered the house with intent to commit a felony therein. (x) And it seems to be the better course first to lay the intent, and then state the particular felony, if a felony has actually been committed. indictment. For though where an indictment charges that the prisoner "the dwelling-house of A. B., feloniously and burglariously did break and enter and the goods of A. B. then and there feloniously and burglariously did steal, take, &c." it comprises two offences, namely, burglary and larceny; and the prisoner may therefore be acquitted of the burglary, and found guilty only of the larceny; yet it seems he cannot be found guilty of the burglary if he be acquitted of the larceny, on the ground that when the offence is so charged the larceny constitutes part of the burglary. (y) It has therefore been recommended, by high authority, as the better way, to charge the prisoner with breaking, &c. with intent feloniously and burglariously to steal, &c. and to add also the particular felony; as upon such an indictment he may be convicted of a simple burglary, though acquitted of the felony. (~) Of joining three offences in the same It is also said, by the same high authority, that three of fences may be joined in the same indictment; namely, burglary, larceny, and felony upon the statute of 5 and 6 E. VI. indictment. c. 9. for robbing a person in a dwelling-house, the owner, his wife, &c. then being within, whether waking or sleeping. And that upon such indictment, which need not conclude against the form of the statute, the prisoner may be convicted of the burglary, and found not guilty of felony; or convicted of the felony upon the statute 5 and 6 E. VI. c. 9. and found not guilty of the burglary; in either of which cases he would be ousted of his clergy; or he may be convicted 951] *of the larceny only, and found not guilty of the burglary and the felony upon the statute; in which case he would be entitled to his clergy. (a) Of laying different intents. We have already seen that different intents may be stated in the indictment; and such a mode of proceeding, by laying u I Hale 550. 2 East. P. C. c. 15. s. 24. p. 512. Ante, 901. 1 Hale 550. Ante, 942, et sequ. y 1 Hale 559, 560. 1 Hale 560. a 1 Hale 561. 2 East. P. C. c. 15. s. 27. p. 516. the same fact in different ways, may be rendered expedient by the particular circumstances of the case. (b) comb and It has been decided in an important case, in which the Of the plea point was fully considered, that an acquittal upon an indict- of autrefois acquit. ment for burglary, in breaking and entering a dwelling-house Rex r. and stealing goods, cannot be pleaded in bar to an indictment Vanderfor burglary in the same dwelling-house, and on the same Abbott. A night, with intent to steal; on the ground that the several prisoner offences described in the two indictments could not be said indicted for burglary, to be the same. in breaking The indictment charged the prisoners with burglariously and enterbreaking and entering the dwelling-house of Merial Nevill ing a dwellingand Ann Nevill, with intent to steal their goods; and they house with pleaded a plea of autrefois acquit upon a former indictment, intent to which indictment charged them with burglariously breaking not and entering the dwelling house of Merial Nevill and Ann in bar an Nevill, and stealing goods of Merial Nevill, goods of Ann acquittal Nevill, and goods of one Susanna Gibbs. The plea concluded dictment with averring the identity of the persons of the prisoners, and for the that the burglary was the same identical and individual same burburglary. To this plea there was a demurrer, which was which argued before all the Judges of England; and their opinion charged a was afterwards delivered by Mr. Justice Buller at the Old breaking Bailey June Session 1796. steal, can upon an in glary and enter ing the same The learned judge said that it had been contended on dwellingbehalf of the prisoners, that as the dwelling-house in which, house and the time when, the burglary was charged to have been and steal*committed were precisely the same both in the indictment ing there. for the burglary and stealing the goods, on which they [* 952] were acquitted, and in the indictment for the burglary with intent to steal the goods, which was then depending; the offence charged in both was, in contemplation of law, the same offence, and that of course the acquittal on the former indictment was a bar to all further proceeding on the latter. He then proceeded, "It is quite clear, that at the time the felony was committed, there was only one act done, namely, the breaking the dwelling-house. But this fact alone will not decide this case; for burglary is of two sorts; first, breaking and entering a dwelling-house in the night time, and stealing goods therein; secondly, breaking and entering a dwelling-house in the night time, with intent to commit a felony, although the meditated felony be not in fact committed. The circumstance of breaking and entering the house is common and essential to both the species of this offence but it does not of itself constitute the crime in either of them; for it is necessary, to the completion of burglary, that there should not only be a breaking and entering, but the breaking and entering must be accompanied with a fe b Ante, 946, 947. lony actually committed, or intended to be committed; and these two offences are so distinct in their nature, that evidence of one of them will not support an indictment for the other. (c) In the present case, therefore, evidence of the [* 953] *breaking and entering with intent to steal, was rightly held not to be sufficient to support the indictment charging the prisoner with having broke and entered the house, and stolen the goods stated in the first indictment; and if crimes are so distinct, that evidence of the one will not support the other, it is as inconsistent with reason, as it is repugnant to the rules of law, to say that they are so far the same that an acquittal of the one shall be a bar to a prosecution for the other." The learned judge then observed, upon the cases which had been cited on behalf of the prisoners, in support of the proposition contended for by their counsel; namely, Turner's case, (d) and the case of Jones and Beaver. (e) In Turner's case it was agreed that the prisoner having been formerly indicted for burglary, in breaking the house of a Mr. Tryon, and stealing his goods, and acquitted, could not be indicted again for the same burglary, in breaking his house, and stealing therein the money of one Hill, (a servant of Mr. Tryon) but that he might be indicted for felony in stealing the money of Hill. Upon this case Mr. J. Buller observed: "The decision was not a solemn judgment, for the prisoner was not indicted a second time for the burglary; it was merely a direction from the Judges to the officer of the court how to draw the second indictment for the larceny; and it proceeded upon a mistake, as I shall presently shew. If the Judges in that case exercised a little lenity before the indictment, which might more properly 954] have been done after conviction, much censure *could not fall on them. But they proceeded on the ground that Turner, having been indicted for burglary, in breaking the house of Mr. Tryon, and stealing his goods, and quitted thereof, could not be again indicted for the same burglary for breaking the house, though he might be indicted e It is well established that an indictment for breaking and entering, &c. and stealing goods, will not be supported by evidence of a breaking and entering, &c. with intent to steal them. But it has been supposed, that an indictment for breaking and entering, &c. with intent to steal, will be supported by evidence of breaking and entering, &c, and an actual stealing. Ante, 945, 950 If this be so, the report of the judgment delivered by Mr. J. Buller, as here given, states the point too largely; as it seems to go to the extent of saying that evidence of a breaking and entering, and a felony actually committed will not support an indictment for a breaking and entering, &c., and a felony intended to be com mitted. In 2 East. P. C. c. 15. s. 29. p. 520, e Kel. 52. for stealing the money of Hill, for which he had not been indicted before: and he was indicted accordingly. The Judges, therefore, must have conceived that the breaking the house and the stealing the goods were two distinct offences; and that breaking the house only constituted the crime of burglary; which is a manifest mistake: for the burglary consisted in breaking the house and stealing the goods; and if stealing the goods of Hill was a distinct felony from that of stealing the goods of Tryon, which it was admitted to be, the burglaries could not be the same." With respect to the case of Jones and Beaver, the learned judge said, that it proceeded entirely upon the decision in Turner's case; and that, the foundation failing, the superstructure could not stand. (f) not be an contained would, if The learned judge then referred to several authori- Autrefois ties, (g) and continued, "These cases establish the princi- acquit, will ple, that unless the first indictment were such as the prisoner effective might have been convicted upon by proof of the facts plea unless contained in the second indictment, an acquittal on the the facts *first indictment can be no bar to the second. Now, to apply [* 955] the principle to the present case: the first indictment was for in the sebarglariously breaking and entering the house of Miss Ne- cond invills, and stealing the goods mentioned; but it appeared that dictment the prisoner broke and entered the house with intent to steal; true, have for, in fact, no larceny was committed, and therefore they sustained could not be convicted on that indictment. But they have not been tried for burglariously breaking and entering the house of the Miss Nevills with intent to steal, which is the charge in the present indictment, and therefore their lives have never been in jeopardy for this offence. For this reason, the Judges are all of opinion that the plea is bad; that there must be judgment for the prosecutor upon the demurrer; and that the prisoners must take their trials on the present indictment." And the prisoners were accordingly tried, and convicted. (h) the first in dictment. In the foregoing case the property in the goods was laid A party indifferently in the two indictments. The first, upon which the dicted for burglary, prisoners had been acquitted, stated some of the goods stolen and stealto belong to Merial Nevill, others to Ann Nevill, and others ing the to Susanna Gibbs; and the second indictment stated the goods goods of a intended to be stolen to belong to Merial and Ann Nevill only. And it is said that Buller, J. in delivering the opinion acquitted, f Rex r. Jones and Beaver, Kel. 50. The prisoners were indicted for burglariously breaking and entering the dwelling-house of Lord Cornbury, and stealing his goods therein; and, being acquitted, were afterwards indicted for the same burglary, in breaking and entering Lord Cornbury's house, and stealing the goods of a Mr. Nunessey: and it was agreed that, as they had been before particular person, and acquitted, they could not be indicted again for the same burglary, but that they might be indicted for the felony in stealing the goods of Mr. Nunessey, precisely as had before been done in Turner's case. 2 Hawk. P. C. c. 35. s. 3. Fost. 361, 362. wards be the same burglary, and stealing the may after- of the Judges on the case, observed, that the property in the indicted for goods was differently described in the two indictments, and said, that this might afford another objection to the plea; but that he had not entered into the consideration of the circumstance, as the case did not require it. (i) And the ancient goods of a doctrine, that a person indicted and acquitted for breaking and entering a dwelling-house in the night, and there stealing the goods of one person, could not be afterwards indicted for [* 956] the same breaking and entering, and stealing the goods of another person, appears to have been overruled in this case, when the authorities by which it was supposed to have been established, were denied to be law. (k) different person. If a prisoner be charged with a burglary and stealing the goods, the prosecutor, on failing to prove that these facts were on the day Where, upon an indictment for a burglary and stealing goods, the prosecutor failed to prove any nocturnal breaking, or any larceny, subsequent to the time when the prisoners entered the house, which must have been after three o'clock in the afternoon of the day on which the offence was charged to have been committed; it was proposed to give evidence of a larceny by the prisoners, of some of the articles mentioned in the indictment, though committed before three o'clock on the day on which they were charged to have entered the committed house; but the court refused to receive the evidence. They laid in the said, that the charge contained in the indictment of burglariindictment, ously breaking and entering the house, and stealing the goods, cannot be might unquestionably be modified, by shewing that the prisoners stole the goods without breaking open the house; but the larceny that the charge proposed to be introduced went to connect the prisoners with an antecedent felony committed before three former day. o'clock on the day mentioned, at which time it was clear that they had not entered the house; that the transactions were distinct; and that it might as well be proposed to prove any felony which those prisoners might have committed in that house seven years before. (1) admitted to prove that was com mitted on a Verdict. Where a larceny, whether within or ousted of clergy, is charged in the same indictment with a burglary, the prisoner may, as we have seen, be found not guilty of the burglary, and convicted of the larceny. (m) Thus, where the prisoners were acquitted of the burglary, upon an indictment for a bur[* 957] glary and larceny, and found guilty of stealing *in the dwelling-house to the amount of forty shillings, it was holden that they were excluded from their clergy, though there was no separate and distinct count in the indictment on the statute 12 Ann. c. 7. and the Judges were of opinion that the indictment contained every charge that was necessary in an indictment upon that statute. (n) i 2 East. P. C. c. 15. s. 29. p. 519. note (b.) k Viz. Turner's case, and the case of Jones and Beaver, ante, 953, 954. Vandercomb and Abbott, 2 Leach 708. m Ante, 950. n Withal and Overend (case of,) Guildford Ass. 1772, Hil. T. 1774. 1 Leach 88. |