of burglary; 3 Inst. 64; 1 Hale, 556; but this is now provided for by statute. (See ante, p. 236).

is

And lastly, as to the local description of the house :-it must be proved strictly as laid; if there be the slightest variance between the indictment and evidence, in the parish, &c., where the house alleged to be situate, the defendant must be acquitted of the burglary. (Ante, p. 41.) If it be not stated in the indictment where the house is situate, it shall be taken to be situated at the place laid as special venue. R. v. Napper, 1 Mood. C. C. 44. And if, two parishes having been named, the house is stated to beat the parish aforesaid," the last parish shall be intended. R. v. Richards, 1 M. & Rob. 177. It is sufficient to allege that the burglary was committed at a place named (as "at N., in the county aforesaid") without stating it to be a parish, vill, chapelry, or the like. Reg. v. Brookes, C. & Mar. 544. In R. v. Bennett, R. & R. 289, it appeared, upon an indictment for breaking and entering a dwelling-house in the parish of A., that the out-house broken and entered was in the parish of B., but the dwelling-house with which it was connected and occupied was in the parish of A., and the point was raised, but not decided, whether under such circumstances the indictment was satisfied.

To avoid difficulty, different counts should be inserted, varying the local description. If the house be not proved to be a dwelling-house, vide supra, and to be the dwelling-house of J. N., (see ante, p. 36), R. v. White, 1 Leach, 252, the defendant must be acquitted of the burglary.

Break.]-There must be a breaking of the house, either

actual or *constructive, to constitute burglary. If a man leave [ *306 ] his doors or windows open, and another enter therein with intent to commit a felony, it is no burglary. 1 Hale, 551; 3 Inst. 64. So, if there be an aperture in a cellar window to admit light, through which a thief enters in the night, this is not burglary. R. v. Lewis, 2 C. & P. 628: Reg. v. Spriggs, 1 M. & Rob. 357.

An actual breaking is, where the offender, for the purpose of getting admission for any part of his body, or for a weapon or other instrument, in order to effect his felonious intention, breaks a hole in the wall of the house, breaks a door or window, picks the lock of a door, or opens it with a key, or even by lifting the latch, or unlooses any other fastenings to doors or windows which the owner has provided. 3 Inst. 64; 1 Hale, Thus, where an entry was effected by taking out the glass from a door, it was holden to be burglary. R. v. Smith, R. & R. 417. And where the defendant pulled down the sash of a window which had no fastening, and was only kept in its place by the pulley weight, it was holden to be burglary, although there was an outer shutter which was not put R. v. Haines, R. & R. 451. So, where he raised a sash window

552.

to.

which was shut down close, but not fastened, though it had a hasp which night have been fastened. R. v. R. v. Hyams, 7 C. & P. 441. And where a window opening upon hinges, and fastened with wedges, but so that by pushing against it it could be opened, was opened; it was holden to be burglary. R. v. Hall, R. & R. 355. So, where a party thrust his arm through the broken pane of a window, and in so doing broke some more of the pane, and thus got at and removed the fastening of the window and opened it, it was holden to be a sufficient breaking. R. v. Robinson, 1 Mood. C. C. 327. In R. v. Callan, R. & R. 157, the prisoner entered the premises by lifting up a heavy flap of a cellar, which was not bolted, and upon a question reserved whether this was a sufficient breaking to constitute burglary, the judges were equally divided: in a later case, however, it has been decided that lifting up the flap of a cellar usually kept down by its own weight is a sufficient breaking for the purpose of burglary. R. v. Russel, 1 Mood. C. C. 377. See R. v. Brown, 2 East, P. C. 487. If a window be partly open, but not sufficiently to admit a person, the raising of it so as to admit a person is not a breaking of the house. R. v. Smith, 1 Mood. C. C. 178.

A constructive breaking is, where the offender, with intent to commit a felony, obtains admission by some artifice or trick, for the purpose of effecting it. As, for instance, if a man knock at a door, and, upon its being opened, rush in with a felonious intent; or upon pretence of taking lodgings, fall upon the landlord and rob him; or procure a constable to gain admittance, in order to search for traitors, and then bind the constable and rob the house; all these entries have been adjudged burglaries, although there were no actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process. 1 Hawk. c. 38, ss. 9, 10; 4 Bl. Com. 226. So, where the defendant obtained admission, by promising a boy, who was in care of the house, some ale; and whilst the boy was gone for the ale, robbed the house: this was holden to be burglary. R. v. Hawkins, 2 East, P. C. 485. Nay, if a servant conspire with a robber, and let him into the house by night, this is burglary in both; 1 Hale, 553; 1 Hawk. c. [ *307] 38, s. 14: R. v. Cornwall, *2 Str. 881; for the servant is doing an unlawful act; and the opportunity afforded him of doing it with greater ease rather aggravates than extenuates the guilt. But if a servant, pretending to agree with a robber, open the door and let him in for the purpose of detecting and apprehending him, this is no burglary, for the door is lawfully open. Reg. v. Johnson, C. & Mar. 218. Obtaining admission to a house by getting down the chimney, is burglary; for the chimney is as much closed as the nature of things will admit. v. Brice, R. & R. 450; 1 Hawk. c. 38, s. 6. See 1 Hale, 552. And the breaking necessary to constitute burglary is not restricted to a breaking of the outer wall or doors, or windows of a house; if the thief

R.

get admission into the house by the outer-door or window being open, and afterwards breaks or unlocks, &c., an inner-door, for the purpose of entering one of the rooms, &c., in the house, it is burglary. 1 Hale, 553: R. v. Johnson, 2 East, P. C. 488. So, if a servant open bis master's chamber door, or the door of any other chamber not immediately within his trust, with a felonious design; or if any other person lodging in the same house, or in a public inn, open and enter another's door, with such evil intent, it is burglary. 1 Hale, 553, 554. It is doubted, whether breaking open cupboards, &c., in the inside of a house, affixed to the freehold, is burglary; see 1 Hale, 527; Fost. 108; and Mr. Justice Foster, in favorem vitæ, recommends that it should not be so considered. Fost. 109. And clearly, the breaking open chests, &c., in a dwelling-house, is not burglary. 1 Hale, 553, 554. The breaking must be of some part of the house; and therefore, where the defendant opened an area with a skeleton key, and thence passed through an open door into the kitchen, it was holden not to be a breaking, there being no free passage from the area to the house in the hours of sleep. R. v. Davis, R. & R. 322. And upon the same principle, it was holden that the breaking of an outward gate, part of the outward fence of the curtilage of a dwelling-house, and which opened, not into any building, but into the yard only, was not a breaking of the dwelling-house. R. v. Bennett, R. & R 289. Where a shutter-box partly projected from a house, and adjoined the side of the shop window, which side was protected by wooden pannelling, lined with iron: it was holden that the breaking and entering the shutter-box did not constitute burglary. R. v. Paine, 7 C. & P. 135.

To enter]-And there must be an entry, as well as a breaking, to constitute burglary; although we have seen that the entry need not be on te same night of the breaking. Ante, p. 303: 1 Hale, 551. Any the least degree of entry, however, with any part of the body, or with any instrument held in the hand, is sufficient; as for instance, after breaking the door or window, &c., to step over the threshold, to put a hand, a finger, R. v. Davis, R. & R. 499, or a book or other instrument in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries. 1 Hale, 555; Fost. 108; 1 Hawk. c. 39, ss. 11, 12; 3 Inst. 64. So if the defendant introduce his hand through a pane of glass, broken by him, between the outer window and an inner shutter, for the purpose of undoing the window latch, it is a sufficient entry. R. v. Bailey, R. & R. 341. So, an entry down a chimney is a sufficient entry into the house, for the chimney is part of the house. R. r. Brice, R. & R. 450.

But an entry through [ *309 ]

a hole in the roof left for the purpose of admitting light, is not

a sufficient entry to constitute burglary; for a chimney is a necessary opening, and needs protection; whereas if a man choose to leave a hole

in the wall or roof of his house, instead of a fastened window, he must take the consequences. R. v. Spriggs, 1 M. & Rob. 357.

It has ever been said, that discharging a loaded gun into a house is a sufficient entry. 1 Hawk. c. 33, s. 11. But there must be an entry: if, for instance, a man assault a house, or even break a hole in it, and before entry the owner fling his money to the thief, it would not be burglary. 1 Hawk. c. 33, s. 3; 1 Hale, 555. So, if the instrument with which the house is broken happen to enter the house, but without any intention upon the part of the burglar to effect his felonious intent (as, for instance, to draw out the goods) with it, this will not be a sufficient entry to constitute a burglary. R. v. Hughes, 1 Leach, 406. See R. v. See R. v. Roberts, 2 East, P. C. 487. Where, therefore, the defendant threw up a window, and introduced a crow-bar to force the shutters, which were three inches from the window, but no part of his band was within the window, this was holden not to be an entry, although the jury found that the defendant' did this with intent to steal. R. v. Rust, 1 Mood. C. C. 183.

With intent, &c.]-The intent laid in the indictment must be, to commit some felony (and whether a felony at common law or by a statute is immaterial, 1 Hawk. c. 38, s. 38), in the dwelling-house, such as larceny, murder, rape, &c.; and the intent must be proved as laid. Where the intent laid was to kill a horse, and the intent proved was merely to lame him, in order to prevent him from running a race, the variance was holden fatal. R. v. Dobbs, 2 East, P. C. 513. If the intent laid be to murder, and the intent proved be to beat the party merely, the variance is fatal. 1 Hale, 561. Where the intent laid was to steal, and the intent was proved to carry away the defendant's trunk containing money which he had formerly embezzled from his master, it was holden that the offence proved did not amount to a burglary; for it was no felony in the defendant to remove the money. R. v. Dingley, 2 Leach 840, c. So, where the intent laid was to steal, and the intent proved was to rescue uncustomed goods which had been seized, the judges held that the indictment was not sustained by the evidence. R. v. Knight, 2 East, P. C. 510. So where the intent laid was to steal the goods of J. W., and it appeared in evidence that no goods of any person of the name of J. W. were in the house, but that the name of J. W. had been inserted in the indictment by mistake; the judges held the variance to be fatal, and the defendant was accordingly acquitted. R. v. Jenks, 2 East, P. C. 514; (ante, p. 100). But where the indictment alleged the intent to be generally "the goods and chattels in the said dwelling-house then and there being" to steal, and charged the defendant with stealing the goods of A. therein, it was held to be satisfied by proof of a breaking into the house, with intent to steal the goods there generally, though the goods actually stolen did not belong to A. alone. Reg. v. Clarke, 1 C. & K. 421.

The best evidence of the intent is, that the defendant actually committed the felony alleged to have been intended by him: see R. v. Locost, Kel. 30: or you may give in evidence any other facts from which the intent may be presumed by the jury. (See ante, p. 104). Where the defendant was discovered in the chimney of a shop in the

*night-time, and the jury found him guilty of the burglary with [ *309 ] intent to steal, it was holden that the evidence was sufficient

to warrant the conviction. R. v. Brice, R. & R. 450. If the intent be at all doubtful, you may lay it different ways in separate counts. See 2 East, P. C. 515; 2 Leach, 1105, (n).

The burglariously breaking and entering a house with intent to commit a rape therein, is not a crime which includes an assault, and therefore on an indictment for such a burglary, the defendant cannot be convicted of an assault under the stat. 7 W. 4 & 1 Vict. c. S5, s. 11, (ante, p. 253). Reg. v. Watkins, C. & Mar. 264; 2 Mood. C. C. 217.

And then and there in the said Dwelling, &c.]-The larceny in the dwelling-house is proved as directed ante, p. 240. It seems, however, that, to convict the defendant of the felony charged to have been committed, it must appear to have been concurrent with the burglary; you cannot give evidence of a felony committed at a different time. Where it appeared in evidence, that upon entering the house at three o'clock in the day, the owner found that some person had removed certain goods to a different part of the house from that in which he had placed them, seemingly for the purpose of stealing them: and the defendants afterwards, on the same evening, having broken and entered the house, were taken in it, before they had attempted to move or carry away any thing; having failed at the trial to prove the burglary, the prosecutor was proceeding to prove the defendants guilty of the antecedent larceny ; but the court refused to receive the evidence, saying, that the transactions were perfectly distinct, and that the prosecutor might as well attempt to prove a larceny committed seven years before. R. v. Vandercomb & Abbott, 2 Leach, 708.

If you succeed in proving a larceny, but fail in proving it to have been committed in the dwelling-house, or the goods to be of the value of five pounds, and if you also fail in proving the burglary, the defendant may be convicted of the simple larceny. If two or more are indicted, one may be found guilty of the burglary and larceny, and the other of the larceny only. R. v. Butterworth, R. & R. 520, (see ante, p. 58); R. v. Turner, 1 Sid. 171, contra. Where a room door was latched, and a person lifted the latch and entered the room, and concealed himself for the purpose of committing a larceny there, which he afterwards effected; and two other persons were present with him when he lifted the latch, for the purpose of assisting him to enter, and screened him from observa