Where the indictment stated a breaking and entering, but omitted to state the intent, and then proceeded to state a larceny actually committed in the house: the judges held that the prisoner might be well convicted of the burglary upon this indictment, if the larceny were proved, but not otherwise; but they said that it was much better, in all cases of burglary, to charge the intent to commit the felony, as well as the com mission of the felony. R. v. Joseph Furnival, R. & R. 445.

In an indictment for stealing in a dwelling-house, which charged the prisoner with having at Liverpool, in the county of Lancaster, stolen certain goods of one Jackson" in the dwelling-house of William Thomas then and there being," without stating expressly where the house was situate: the judges held the indictment good; it shewed sufficiently that the house was situate at Liverpool. R. v. Napper, R. & M. 44. Evidence.

Burglary is the breaking and entering the dwelling-house of another, in the night-time, with intent to commit a felony therein. To maintain this indictment, therefore, the prosecutor must prove

1. A breaking. And any removal, with force, of any part of the house, by which an entry into any part of it may be effected, will be a breaking, within the definition of burglary. Where the entry was effected, by taking the glass out of a door, it was holden to be burglary. R. v. John Smith, R. & R. 417. So where it appeared that the prisoner effected an entry, by pulling down the upper sash of a window, which had not been fastened, but merely kept in its place by the pully weight: the judges held this to be a sufficient breaking to constitute burglary, even although it also appeared that an outside shutter, by which the window was usually secured, was not closed or fastened at the time. R. v. William Haines and William Harrison, R. & R. 451. Where an entry was effected thus: a pane of glass in one of the windows of the house had been broken sufficiently to admit a man's hand, but not his arm, so as to enable him to undo the fastening of the casement; one of the prisoners thrust his arm through the broken pane (thereby breaking the remainder of the glass), then undid the fastening of the window, and so obtained an entrance into the house: the judges held this to be a sufficient breaking, not by breaking the glass, but by undoing the fastening of the window and opening it. R. v. Robinson and Baccon, R. & M. 327. So where a prisoner broke a pane of glass in a window, which before was perfect, and then put in his hand to open the shutter, which however he did not succeed in doing: Park, J. held this to be a sufficient entry to constitute burglary.

R. v. Perkes, 1 Car. & P. 300. But where there was an aperture in a cellar window to admit light, and the prisoners obtained an entrance through it, Vaughan, B. held this not to be burglary. R. v. Lewis, 2 Car. & P. 628. So where it appeared that the lower sash of the window of the house was raised up about two inches, and that the prisoners obtained an entry by throwing the sash quite up: the judges held this not to be a breaking of the house, so as to constitute house-breaking. R. v. Henry Smith, R. & M.178. Where an entry was effected, first into an outer cellar by lifting up a heavy iron grating that led into it, and thence into the house by a window; and it appeared that the window, which opened by hinges, had been fastened by means of two nails as wedges, but could notwithstanding easily be opened by pushing: the judges held that opening the window, so secured, was a breaking sufficient to constitute burglary. R. v. Samuel Hall, R. & R. 355. But if a window thus opening on hinges, or a door, be not fastened at all, opening them would not be a breaking, within the definition of burglary. Where the prisoner obtained an entrance into a dwelling-house, by lifting up the heavy flap door of a cellar, which would keep closed by its own weight, and would require some degree of force to raise it; it had bolts by which it might have been fastened on the inside, but it did not appear that it was so fastened at the time: the judges were divided in opinion whether the opening of this door was such a breaking of the house as constituted burglary; R. v. James Cullan, R. & R. 157 ; it was formerly holden in Brown's case, 2 East's P. C. 487, that it was; and in a late case, under the same circumstances, the judges have holden that obtaining an entrance, by raising such a flap door of a cellar, is such a breaking of a house as will constitute burglary. R. v. Russell, R. & M. 377. See R. v. Lawrence and Weaver, post. And an entry by the chimney of a dwelling-house, will be a burglarious breaking: where the prisoner, a chimney-sweep, was seen in the chimney of the prosecutor's shop, just above the mantle-piece, and when he found that he was detected, he climbed up the chimney again, and got out on the roof, where he was secured: the judges held that the getting in at the top of the chimney, was a breaking of the dwelling-house; and ten of them held that the prisoner, by lowering himself in the chimney, had made an entry into the house, sufficient to constitute burglary. R. v. William Brice, R. & R. 450.

It must be some part of the house, however, that must be broken. Therefore, where, upon an indictment for housebreaking, it appeared that the prisoner opened the area-gate, with a skeleton-key, and from the area passed into the kitchen through a door which did not appear to have been

shut at the time: the judges held that opening the area-gate was not a breaking of the dwelling-house, as there was no free passage, in time of sleep, from the area into the house. R. v. John Davis, R. & R. 322. So, breaking a door which formed part of the outward fence of the curtilage of a dwelling-house, and which opened, not into any building, but into a yard only, was holden not to be a breaking of the dwelling-house: the premises consisted of a dwelling-house, warehouses, and stables, surrounding a yard; there was an immediate entrance to the dwelling-house from the street, and a gate and gateway, under one of the warehouses, leading into the yard; the prisoner entered the premises by breaking this gate; the judges held that this was not burglary; that breaking this gate, which was part of the outward fence of the curtilage, and not opening into any of the buildings, was not a breaking of any part of the dwellinghouse. R. v. William Bennett and another, R. & R. 289. The breaking must be in the night-time.

2. An entering.-And any entering of the dwelling-house with the body, or any part of it, with the intent charged in the indictment, will be a sufficient entry to constitute burglary. Where a sash window belonging to a dwelling-house was fastened, in the usual way, by a latch from the bottom of the upper sash to the top of the lower one, and there were inside shutters which were fastened; one of the prisoners broke a pane of glass in the upper sash of this window, and introduced his hand within, with the intention to undo the latch by which the window was fastened; and whilst he was cutting a hole in the shutter with a centrebit, and before he had undone the latch of the window, he was seized: the judges held this to be a sufficient entry to constitute burglary. R. v. William Bayley and another, R. & R. 341. So where a shop window, within which there were watches and jewellery, was broken, by the prisoner's thrusting his finger through one of the panes, and the finger was seen on the other side the judges held this to be a sufficient entry to constitute burglary. R. v. John Davis, R. & R. 499. So where the prisoner got in at the top of the chimney, and was found in the chimney, a little above the mantle-piece the judges held that the getting in at the top of the chimney was a breaking of the dwelling house; and that as the chimney was part of the dwelling-house, the prisoner, by lowering himself in the chimney, must be considered as having made an entry into the dwelling-house. R. v. William Brice, R. & R. 450. But where the prisoners lifted up the sash of a window, and it did not appear that either of them had passed their hand through; but they had passed a crow

bar through the window, and through an internal window shutter, which was at the distance of about three inches from the sash; and the jury being of opinion that they had done this with intent to steal, found the prisoners guilty: the judge, however, doubting whether there was a sufficient entry to constitute burglary, reserved the case for the opinion of the judges, who held that there was not. R. v. John Rust and Thomas Ford, R. & M. 183. See R. v. Henry Smith, post, p. 322.

The entry also must be in the night-time. It is not necessary, however, that the entry should be at the same time as the breaking; if the breaking be done with intent to enter, and the entry be done with intent to commit a felony in the dwelling-house, and both in the night-time, it is sufficient, although a day or more intervene between the one and the other. Where it appeared that the prisoner took the glass out of a door on Friday night, with intent thereby to enter the house; and afterwards on the Sunday night, and before the glass was replaced, he entered by the aperture he had thus made: the judges held that the breaking being originally with intent to enter, and the breaking and the entering being both in the night-time, the offence amounted to burglary, notwithstanding the time that had elapsed between the breaking and the entry. R. v. John Smith, R. & R. 417.

3. That the house broken and entered was the dwellinghouse of C. D., as stated in the indictment.-In the first place, it must be a dwelling-house, that is to say, a house in which the occupier or his family usually sleep at night. Where premises, consisting of a shop and parlour on the ground-floor and a room over them, were broken and entered in the night-time, and goods to a considerable amount stolen ; and upon an indictment for this, as for a burglary, it appeared that the prosecutor carried on his business in the house, and lived and took his meals in it in the day-time, but slept every night at the house of his mother, which was within two doors of it, and no person slept in the house: the judges held that this was not a dwelling-house, and that the offence was not a burglary. R. v. Martin and Taylor, R. & R. 108. But if any part of his family sleep in it, it will be sufficient. Where the prosecutor had a house fronting the street, the back part communicating by a door with a public passage; immediately opposite, in the passage, were some buildings occupied by the prosecutor, one for a kitchen, another a coach-house, and another a brew-house, and over the brewhouse a servant boy of the prosecutor always slept: upon an indictment for breaking into the brew-house, stating it to be the dwelling-house of the prosecutor, the judges held that it

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could not be deemed a part of the dwelling-house in which the prosecutor himself actually dwelt, being separated from it by the passage; but ten of them held it to be a distinct dwelling house of the prosecutor. R. v. James Westwood, R. & R. 495. Upon an indictment for burglary in a shop, stating it to be the dwelling-house of the prosecutor, it ap peared that the prosecutor, who formerly dwelt in the house with his family, had latterly dwelt elsewhere, without an intention of returning; he continued the business however at the shop, let some of the rooms in the house to lodgers, and his foreman and wife and his apprentice dwelt in others; the foreman's wife was also the prosecutor's servant, employed in keeping the apartments clean, but all were paid weekly wages the judges held that the house was in law the dwelling-house of the prosecutor, and the shop a part of it. R. v. Gibbons and Kew, R. & R. 442. Upon an indictment for burglary, it appeared that the premises consisted of a counting-house on the ground floor, occupied by the prosecutors as brewers and bankers, and two rooms above, in which their cooper and his family lived; the contract between the prosecutors and their brewer was, that he should have these rooms to live in, with firing and certain weekly wages; there was a separate entrance to the upper rooms, and there was no communication between them and the countinghouse except by a trap-door, which however was never used: the counting-house being broken open, the judges held it to be properly described as the dwelling-house of the prosecutors. R. v. John Stock and another, R. & R. 185. But where the prosecutor, an upholsterer, left the house in which he had resided with his family, without an intent of returning to live in it, and took a dwelling-house elsewhere, but still retained the former house as a warehouse and workshop; two women, employed by him as workwomen in his business, and not as domestic servants, slept there to take care of the house, but did not have their meals there, or use the house for any other purpose than sleeping in it as a security to the house: the judges held that this was not properly described as a dwellinghouse of the prosecutor. R. v. Lawrence Flanagan, R. & Ř. 187. A mere tent or booth in a market or fair, also, is not a dwelling-house in which burglary may be committed. Hale, 557; 1 Hawk. c. 38. s. 17. But where a permanent building of mud and brick was built on the down at Weyhill, with wooden doors and windows that bolted on the inside, was rented by the prosecutor for the week of the fair, and used as a booth, but he and his wife slept in it; this being broken into by the prisoner in the night-time, whilst it was thus occupied, J. Parke, J., (after consulting Littledale J.,) held that it was such a dwelling-house as might be the subject of bur

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