there is a doubt of the house being situate in one parish or place, or another, insert different counts in the indictment, varying the local description as may be necessary.

4. The felonious intent with which the prisoner broke and entered the house. This of course cannot be proved by positive testimony; it can be proved only by the admission of the party, or by circumstances from which the jury may presume it. Where it 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, unless the contrary be proved. Where a man was found in the nighttime in the chimney of a shop, just above the mantle-piece, ard before he had re-entered the shop; the jury found him guilty of burglary with intent to steal, upon this evidence merely, and the judges confirmed the conviction. See R. v. Wm. Brice, ante, p. 308, 309. If the breaking and the entry be at different times, both must appear to have been done with the same felonious intent. See R. v. John Smith, ante, p. 310.

5. The felony committed, if it be charged in the indictment. This is proved in the same manner as upon an indictment for the felony. It is not necessary, however, to a conviction for the burglary, that the felony intended should be proved to have been actually committed; if it be proved that the prisoner broke and entered the dwelling-house with intent to commit the felony, it will be sufficient. On the other hand, if you fail in proving the burglary, but prove the other felony charged in the indictment, the prisoner may be found guilty of the latter, and acquitted of the burglary; or where there are two prisoners, one may be found guilty of the burglary, and the other of the larceny or other felony merely. R. v. Butterworth and others, R. & R. 520.

If you fail in proving the breaking and entering to be in the night-time, the prisoner may be convicted of breaking and entering the house under sect. 12, if a larceny in the house be also proved. If you fail to prove the breaking or entry, the defendant may still be convicted of stealing in the dwelling-house, if to the value of five pounds. See sect. 12. and see R. v. Compton & others, 3 Car. & P. 418.

2. Indictment for Burglary, in breaking out of a house. BERKSHIRE, to wit: The jurors for our lord the king upon their oath present, that A. B., late of the parish of in the county aforesaid, labourer, on the third day of November, in the fifth year of the reign of our sovereign lord William the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, at the parish aforesaid in the county aforesaid, being in the dwelling-house of C. D. there situate, [one silver watch of the value of forty shillings, of the goods and chattels of the said C. D. in the said dwelling-house then and there being found, then and there in the said dwelling-house feloniously did steal, take, and carry away]; and that the said A. B., so being then and there in the said dwelling. house as aforesaid, and having committed the felony aforesaid in manner and form aforesaid, afterwards, to wit, on the day and year aforesaid, about the hour of eleven in the night of the same day, with force and arms, at the parish aforesaid in the county aforesaid, the said dwelling-house of the said C. D. feloniously and burglariously did break to get out of the same, and then and there in the night-time as aforesaid feloniously and burglariously did break out of the same against the form of the statute in such case made and provided, and against the peace of our lord the king, bis crown and dignity. If there be a doubt of being able to prove the larceny or other felony laid in this first count, but there be sufficient evidence of the prisoner's intent to commit it, you may add the following count: And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B. on the said third day of November in the year aforesaid, with force and arms, at the parish aforesaid in the county aforesaid, a certain other dwelling-house of the said C. D., there situate, feloniously and burglariously did enter, with intent [the goods and chattels of the said C. D. in the said last-mentioned dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away]; and that the said A. B., so being then and there in the said Jast-mentioned dwelling-house, with the intent aforesaid, afterwards, to wit, on the day and year last aforesaid, about the hour of eleven in the night of the same day, with force and arms, at the parish aforesaid in the couuty aforesaid, the said last-mentioned dwelling-house of the said C. D. feloniously and burglariously did break, to get out of the same, and then and there in the night time as aforesaid, feloniously and burglariously did break out of the same : against the form of the statute in such case made and pro

vided, and against the peace of our lord the king, his crown and dignity. C. C. C. 87.

Evidence.

To maintain the first count of this indictment, the prosecutor must prove :

1. The larceny or other felony, as stated in the indictment, in the ordinary way.

2. That it was committed in the dwelling-house of C. D., or in an outhouse occupied with, and connected and communicating with it; so that it may appear to be such a dwelling-house, or part thereof, as may be the subject of burglary. See ante, p. 310, &c.; and see s. 13, post.

3. That the prisoner broke out of the house in the nighttime, that is to say, that he 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. 307. Where a man broke out of a house by lifting the heavy flapdoor 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 & Weaver, 4 Car. & P. 231. We have already seen that it would be a good breaking into the house to constitute burglary. See p. 308, ante. Perhaps 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 hindrance to a person breaking out.

4. That the house is situated as described in the indictment.

To maintain the second count of this indictment, the prosecutor must prove :

1. The entry. And proof that the prisoner was seen in the house, or seen coming out of it, will of course be suffi cient evidence of this.

2. The intent. This must be proved in the same manner as in the ordinary cases of burglary, by the confession of the prisoner, or by facts from which the jury may presume it. Indeed the very fact of his being in the dwelling-house 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 the pri soner produce evidence which will rebut the presumption.

3. The breaking out of the house, ut supra.

4. That the house is situate as described in the indict

ment.

Housebreaking; stealing

in a house,

XII. And be it enacted, That if any person shall break and enter any dwelling-house, and being put in steal therein any chattel, money, or valuable se51. in a dwell-curity to any value whatever; (6) or shall steal

some person

fear; stealing

ing house.

What build

any such property to any value whatever in any dwelling-house, any person therein being put in fear; or shall steal in any dwelling-house any chattel, money, or valuable security to the value in the whole of five pounds or more: (7) every such offender, being convicted thereof, shall suffer death as a felon.

XIII. Provided always, and be it enacted, ings only are That no building, although within the same cur

part of a

house, in

burglary and stealing in a house.

tilage with the dwelling-house, and occupied thetewith, shall be deemed to be part of such dwelling

(6) As far as respects the punishment of death for this offence, this section is repealed by stat. 3 & 4 W. 4. c. 44. s. 1; and the offence is now punishable with transportation for life, or for any term not less than seven years, and im-prisonment with or without hard labour for not more than four years nor less than one, previously to the transportation. Id. s. 2. See this statute post.

(7) As far as respects the punishment of death for this last offence of stealing in the dwelling-house, goods, &c. to the value of 5., this section is repealed by stat. 2 & 3 W. 4. c. 62. s. 1, and the punishment for it is now transportation for life; id., and (if the court shall think fit) imprisonment with or without hard labour, for any term not exceeding four years, nor less than one. 3 & 4 W. 4. c. 44. s. 2. The only offence mentioned in this section, which is now punishable with death, is, stealing in a dwelling-house, any person therein being put in fear. Vide supra.

house for the purpose of burglary, or for any of the purposes aforesaid, (8) unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and inclosed passage leading from the one to the other. (9)

1. Indictment for housebreaking.

BERKSHIRE, to wit: The jurors for our lord the king upon their oath present, that A. B., late of the parish of in the county aforesaid, labourer, on the third day of November, in the fifth year of the reign of our sovereign lord William the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, with force and arms, at the parish aforesaid in the county aforesaid, the dwelling-house of J. E. there situate feloniously did break and enter, and two pewter dishes of the value of eleven shillings ["chattel, money, or valuable security"] of the goods and chattels of the said J. E., in the said dwelling-house then and there being found, then and there in the said dwelling-house feloniously did steal, take, and carry away against the form of the statute in such case made and provided, and against the peace of our lord the king, his crown and dignity. If bank notes or other valuable security be stolen, it may be prudent to conclude against the form of the statute, &c."

66

Evidence.

To maintain this indictment, the prosecutor must prove :1. The breaking and entry into the dwelling-house of J. E., or into some outhouses occupied with, and connected and communicating internally with it, in precisely the same manner as in burglary, except that it need not be in the night-time. Where it appeared that the prisoner opened the area gate of a house in London with a false key, descended into the area, and from thence passed by an open 'door into the kitchen, where he stole some article: the judges held that this was not a breaking and entering of the dwelling-house, there being no free passage, in time of sleep, from

(8) See the last section.

(9) See R. v. Burrowes, R. & M. 274, ante, p. 312.