sion 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) The prisoner was indicted for burglary, in breaking and Dobbs's case. entering the stable of one James Bayley, part of his dwelling-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 ac quitted, 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) case. The prisoner, being a servant or journeyman to one John Dingley's 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 guincas, 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 mo (r) 1 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. (1) Dobbs's case, cor. Parker, Ch. B. Buckingham Sum. Ass. 1770, 2 Case of ney 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 ground, namely, that the intention was not to commit a felony. 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 ap- (x) Rex v. Knight and Roffey, East T. 1782. 2 East. P. C. c. 15. mon law or It is quite clear, therefore, that the entry must be with a The felony intended may felonious intent. And it seems also to be now well esta- be either feblished, contrary to some opinions which have been formerly lony at comentertained upon the point, (y) that it makes no difference by statute. whether the offence intended were felony at common law, or only created so by statute; and the reason given for the better opinion is this, that whenever a statute makes any offence felony, it incidentally gives it all the properties of a felony at common law. (≈) really intend ed must be stated correctly, and proved according to the fact. It is necessary to ascertain with exactness the felony The felony really intended, as it must be laid in the indictment, and proved, agreeably to the fact. And a felony intended to be committed will not support an indictment charging a felony actually committed. Thus where, upon an indictment for burglary and stealing goods, it has appeared that there were no goods stolen, but that the burglary was with intent to steal; it has 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 1. 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 felony by 19 Geo. II. c. 34. (many 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 (y) 1 Hale 562. Crompt. 32. 2 (≈) 1 Hawk. P. C. c. 38. s. 38. 4 Black. Com. 228. 1 Bac. Ab. Burglary (F.) 2 East. P. C. c. 15. s. 22. p. 511. Rex v. Locost and Villars, Kel. 30. Rex v. Gray, 1 Str. 481. Rex v. Knight and Roffey, ante, note (x). (a) 2 East. P. C. c. 15. s. 25. p. 514. Vandercomb and Abbott (case of), 2 Leach 717. (b) 2 East. P. C. c. 15. s. 25. p. 514. But different intents may be laid in the indictment. is of a felony intended 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 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 stated in the indictment. Thus, where the first count of an indictment for burglary laid the fact to have been done with intent to steal the goods of a person; and the second (c) 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 dwelling-house of A. which turns out to be the dwelling-house of B., because that cir cumstance is perfectly immaterial in robbery, which is ousted of clergy generally. (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. count 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) Having thus treated of the offence of burglary, according Of the proto its definition, we may enquire shortly concerning the ceedings. proceedings against offenders by indictment. that the fact was done in the night. Allegation It is essential that the indictment should state the fact to Indictment. 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 allegation as to the hour, Thompson'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. SP Burglary. S. I. 2 East. P. C. c. 15. |