retaining possession of the outer door ceased to inhabit any portion of the building-whose dwelling-house would it be then?

Another excepted case is suggested by the commissioners. 66 It may be observed that there is a case which may make it desirable to extend the limits of the law against burglary, viz., where the owner of a dwelling-house, part of which is let to a lodger, breaks into the chamber of the latter in the nighttime with a felonious intention. As against a stranger the whole dwelling-house would be the house of the landlord, and if in the case of such an offence against his tenant the whole were still to be considered to be his (the landlord's) dwelling-house, he would not be guilty of burglary by breaking into any part. This particular case may be provided for under the head of procedure, where a rule may be laid down that in every case of such severed occupation the chamber, or set of connected rooms occupied by the tenant, may be described as his dwelling-house."

The prefatory remarks are closed by the following passage: "In the arrangement of the rules respecting burglary in the Digest, we have adhered to the characteristics of the offence as contained in the existing law; treating the invasion of a dwelling-house in the night-time as the corpus delicti, and the circumstances of violence and ill-usage to inmates as aggravations. In conformity also with the present law we have considered house-breaking with its several aggravations as a separate and distinct offence from burglary. If, however, the object had been to re-construct the law upon this subject, instead of merely digesting it with reference to existing rules and definitions, we are aware that a far simpler and more convenient method of arrangement might have been applied. In the French law, and in most of the modern codes of Europe, breaking an inhabited house is treated as an aggravation of theft1. This is an imperfect means of classification, for as the breaking may be attended with the commission or intention to commit other offences, we see no reason why it should be considered as an aggravation of theft alone. The proper course, as it appears to us, would be to consider breaking a

1 Code Penal, Art. 381. See also the Bavarian Code, Art. 221. Prussian Code, Art. 1163.

dwelling-house as in all cases the simple offence; and then to classify the circumstances of stealing or committing any other offence therein, of night-time, and of alarm or injury to inmates, as so many aggravations, to each of which, when added to the crime of house-breaking, an appropriate place in the scale of punishments should be assigned. We apprehend that an arrangement of the law upon this principle would obviate many of the most embarrassing difficulties by which the subject is at present attended."

We do not well see how mere house-breaking can be regarded as the simple offence, for, divested of all the circumstances above enumerated, it partakes more of the nature of a trespass than a crime. The commissioners probably mean house-breaking with a felonious intent of some sort.

We shall quote the articles of the proposed Digest as they stand, for the purpose of enabling our readers to judge how far the existing sources of embarrassment would be removed by them.

ART. 1.

"Whosoever shall commit the crime of burglary shall incur the penalties of the class."

ART. 2.

"It is essential to the crime of burglary :

"1st. That an entry be made into a dwelling-house of another, or some inner part of a dwelling-house of another, by the means or in the manner hereinafter defined.

"2ndly. That such entry be made, either with intent to commit some felony in such dwelling-house, or inner part of a dwellinghouse, or that the offender, having made such entry, should commit some felony in such dwelling-house, or inner part of a dwellinghouse.

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3rdly. That such entry be made, and such felony, where the commission of a felony is essential to the offence, be committed in the night time, as hereinafter defined."

The principal alteration effected by this article is contained in the second proposition, which makes the actual commission of a felony sufficient, whatever the original intent. This alteration is thus justified in a note:

"It has been held repeatedly, that if an indictment charge a burglary with intent to commit a felony, it will be supported by evidence of a felony actually committed, Locosts and Villar's Case, Kelyng, 30; 1 Hale's, P. C. 560; and Consequently the report of the above

judgment of Mr. Justice Buller states this point too largely according to the ancient definition of the offence, which considers the corpus delicti complete upon a breaking and entering with a felonious intent. But many nice questions have arisen, and may arise, in consequence of resting the substance of the offence altogether upon the intent. It is obvious that a man may break a house with intent to commit a trespass, and afterwards may commit a felony not contemplated by him at the time of the breaking, or he may break with intent to commit a felony of one kind, as a rape, and may afterwards commit another kind of felony, as a theft. If, in such cases, the indictment stated the breaking to be with intent to commit the felony actually committed, the offender must be acquitted. But were the offence defined in the alternative, as suggested by Mr. Justice Buller in Vandercomb and Abbot's Case (though inaccurately according to the ordinary definitions) no difficulty of this kind could arise, as the indictment must then always charge either the intent or the actual commission of a felony according to the fact, and the proof of the former could not support the latter, and vice versâ. For this reason, though a definition resting wholly upon the intent has the advantage of simplicity, and is perhaps the proper statement of the existing law, we think that it would be more convenient, upon the whole, to adopt the alternative definition."

The advantages will be doubted, and it strikes us that it would be better to convict a man of the felony actually committed, than to add it to a mere trespass for the purpose of convicting him of burglary. Wherever the offence really amounts to burglary, it might be reached by the existing law. The next ten articles relate to the entry.

ART. 3.

"An entry, so far as regards the means or manner of effecting it, shall be sufficient to constitute burglary, if it be effected by any of the means or in the manner hereinafter specified.

ART. 4.

"1st. If it be effected by means of any force used to break, displace, or open any part of the walls, roof, ceiling or floor of a dwellinghouse, or any door, window, or other impediment opposed to entrance into a dwelling-house; and, as regards an entry into the inner part of a dwelling-house, if it be effected by means of any force used to break, displace, or open any part of the walls, partitions, ceiling, or floor of such inner part, or any door or other impediment opposed to entrance into such inner part.

ART. 5.

"2dly. If it be effected by means of any violence or threat of violence, either to the person or property of another, or by any other means of intimidation, direct or indirect.

ART. 6.

"3dly. If it be effected by means of any stratagem, trick, or device, fraudulently practised for the purpose of obtaining admission, or by collusion or conspiracy with any other person unlawfully affording or facilitating such entry.

ART. 7.

"4thly. If a party enter upon admission fraudulently given by a servant or other inmate.

ART. 8.

"5thly. If a party enter into the chimney of a dwelling-house of another, although no room or apartment of such dwelling-house be entered.

ART. 9.

"Where an entry is effected upon admission fraudulently given by a servant or other inmate, such entry, so far as regards the fact of entry, shall constitute burglary as well in the servant or inmate as in the party so admitted.

ART. 10.

"As regards the act of entry, the partial entry of any offender into a dwelling-house, or the inner part of a dwelling-house, or the introduction of any engine or instrument, or any part of any engine or instrument, into a dwelling-house, or the inner part of a dwellinghouse, or the discharge of any missile into a dwelling-house, or the inner part of a dwelling house, shall be deemed to be an entry sufficient to constitute burglary, provided such partial entry by such offender be made, or such engine or instrument, or part thereof, be introduced, or such missile be discharged with intent to commit a felony in such dwelling-house, or inner part of a dwelling-house.

ART. 11.

"An entry into a dwelling-house, or any inner part of a dwellinghouse, by any person having authority to enter therein, shall not be deemed to be an entry sufficient to constitute burglary, although he enter with intent to commit a felony, or having entered, commit a felony therein.

ART. 12.

"An entry by an inmate of a dwelling-house into any inner part thereof, and not made by virtue of any authority, trust or employment, is a sufficient entry into such inner part to constitute burglary."

The words by means of any force in the fourth article leave

open the doubts suggested in the prefatory remarks as to the degree of force required to constitute the crime. For example, is the raising of a heavy trap-door an entry by force?

Under Art. 10 it may be made a question whether shooting at a man through the window of his house, without the least intention of forcing an entry, is a burglary. The 12th Article is also worded in such a manner as to lead to confusion; for an argument might be raised whether Courvoisier would not have been guilty of a burglary by virtue of it. An illustrative case is to be found in Hale:

"The servant lies in one part of the house, the master in another, and the stair-foot door of the master's chamber is latched; the servant came in the night and unlatched the stair-foot door, and went up into his master's room with a hatchet intending to kill him and wounded him dangerously, but the master escaped. Upon this special matter found at the Winchester assizes, by the advice of the greater number of the judges, exceptis paucis, it was adjudged felony, and the offender was executed.-1 Hale's P. C. 555."

Surely something must depend on the fact whether the duty of the servant or inmate does or does not give him general access to the part of the building in question.

The next seven articles declare what is to be deemed a dwelling-house:

ART. 13.

"A dwelling-house consists of any fixed and permanent building which at the time of the offence had been or was used, and was intended to be used, either continuously or at intervals, for the purpose of lodging or dwelling therein by night.

ART. 14.

The motive or object for using such building for the purpose in the last preceding Article mentioned shall not be deemed to be material to the offence.

ART. 15.

"And such building shall be deemed to be a dwelling-house, although it be not inhabited by living therein during any part of the day.

ART. 16.

"The mere casual occupation of any such building, without the consent or licence of the owner or occupier thereof that such building should be used either continuously or at intervals for the purpose of dwelling or lodging therein by night, shall not constitute such building a dwelling-house.