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let out are the mansion, for the time being, of each lodger respec

tively. (f)

The following cases were decided in conformity to this rule. Carrell's case. A burglary was committed in a house which belonged to one Nash, who did not live in any part of it himself, but let the whole of it out in separate lodgings from week to week: and an inmate named Jordan had two apartments in the house; namely, a sleeping-room upon one pair of stairs, and a workshop in the garret ; which he rented by the week as tenant at will to Nash. The workshop was the room broken open by the prisoner. And upon a case referred to the judges for their consideration, whether the indictment had properly charged the burglary in the dwellinghouse of Jordan, ten of them were of opinion, that as Nash, the owner of the house, did not inhabit any part of it, the indictment was good. (g) So upon an indictment on the statute 3 & 4 W. Trapshaw's and M. c. 9. for robbery in a dwelling-house, where it appeared case. that the house was situated in a mews, and the whole of it let out in lodgings to three families, with only one outer door, which was common to all the inmates; one of whom rented the parlour on the ground-floor, and a single room up one pair of stairs; and that the parlour on the ground-floor was the part of the house broken open; all the judges held that the offence was well laid in the indictment, as having been committed in the dwelling-house of the particular inmate. (h) And in a recent case it was held, that if two or more rent of the owner different parts of the same house, so as to have amongst them the whole house, and the owner does not reserve or occupy any part, the separate parts of each may be described as the dwelling-house of each. Choice rented of the landlord a shop and other rooms in a house, and Ryan rented in the same house another shop and all the other rooms; and he rented them of the landlord also; the staircase and passage were in common, and the shops opened into the passage, which was enclosed, and was part of the house; all the taxes

(f) 4 Black. Com. 225. Lee v. Gansel, Cowp. 8. 2 East. P. C. c. 15. s. 18. p. 503. adopting the doctrine in Kel. 83, 84. And in Rogers's case, I Leach 90. is the following note by the editor:-"I have been favoured with "the following opinion of Lord C. J. "Holt upon this subject, from the "manuscript notes of the late Lord "C. B. Parker.-If inmates have se"veral rooms in a house, of which "rooms they keep the keys, and in"habit them severally with their fa"milies, yet, if they enter into the "house at one outer door with the "owner, these rooms cannot be said "to be the dwelling-houses of the in"mates, but the indictment ought to "be for breaking the house of the "owner. Mr. Tanner, an ancient "clerk of the court, said, that the "constant opinion and practice had "been according to the opinion of

"Lord C. J. Kelynge, which opinion
"was cited by Lord C. J. Holt upon
"this occasion at the Old Bailey Oc-
"tober Session, 1701."

(g) Carrell's case, O. B. 1782, con-
sidered of by the judges, E. T. 1782.
1 Hawk. P. C. c. 88. s. 32. 1 Leach
237. 2 East. P. C. c. 15. s. 18. p. 506.
The judges relied on Rogers's case,
1 Leach 90. ante note (ƒ) and post 30.
The two other judges (Eyre B. and
Buller J.) who thought that it was
not the mansion-house of Jordan,
were of opinion that it might have
been laid to have been the mansion-
house of Nash; to which some of the
other judges inclined, if it were not
the mansion of Jordan.

(h) Trapshaw's case, O. B. 1786. and Hil. T. 1787. 1 Hawk. P. C. c. 38. s. 30. 1 Leach 427. 2 East. P. C. c. 15. s. 18. p. 506.

Rogers's case.

Ownership

where there is verance, and

an actual se

no internal

communication.

Jones's case.

the same

constitute distinct man

sions for each

partner, though the

were paid by Choice. The prisoner broke open the passage door of Ryan's shop, and was indicted for burglary in the dwellinghouse of Ryan: and upon the point being saved, the judges had no doubt but that this was rightly described as the house of Ryan, and held that the conviction was right. (i)

Consistently also with this rule, an occupation of some part of the house by the owner, which does not amount to an inhabiting, will not make the house such as may be stated to be his dwellinghouse in an indictment for burglary. The owner of a house let the whole of it in apartments to different persons, and did not inhabit any part himself. One of the inmates rented the bottom part of the house, namely, a shop, a parlour, and a cellar, (which ran underneath the shop and parlour,) at a yearly rent; but the owner had taken back the cellar for the purpose of keeping wood and lumber in it, and made an allowance to the inmate of ten shillings a-year, which was deducted from the rent. The entrance to the house was by a common outer door from the street. The shop and parlour were broken open. And upon an indictment for burglary, laying the offence to have been committed in the dwelling-house of the inmate, nine of the judges agreed that this was proper; that it could not have been laid to be the dwellinghouse of the owner, as he did not inhabit any part of it, but only occupied the cellar: but that it would have been otherwise if the owner had occupied any part of the house. (k)

Where there is an actual severance of a house in fact, by a partition or the like, all internal communication being cut off, and each part being inhabited by several occupants, separate and distinct mansions in law will be constituted. (1) And this may be, though the rent and taxes of the whole premises be paid jointly out of the partnership fund of the several occupants.

The prisoner was indicted for burglary and larceny in the Several occu- dwelling-house of Thomas Smith and John Knowles. It appeared pations of dis- that these persons were in partnership, and lived next door to each tinct parts of other. The two houses had formerly been one house only, but house by two had been divided for the purpose of accommodating the respective partners may families of each partner, and were then perfectly distinct and separated from each other, there being no communication from the one to the other without going into the street. The house-keeping, servants' wages, &c. were paid by each partner respectively; but the rent and taxes of both the houses were paid jointly out of the partnership fund. The prisoner was servant to Smith, and it was in his house that the burglary was committed. It was objected upon these facts, that although the two houses were the joint property of both the partners, yet they were the separate and respective mansions of each, and therefore that the burglary ought to have been laid as committed in the house of Smith only. And the court conceived the objection to be well founded, and directed the jury to acquit the prisoner of the capital part of the charge. (m)

rent and taxes

be paid from the joint fund.

(i) Rex v. Bailey, E. T. 1824. MS.
Bayley J., and Ry. & Moo. C. C. 23.
(k) Rogers's case, O. B. 1772. and
M. T. 1772. 1 Hawk. P. C. c. 38. S.
29. 1 Leach 89. 2 East. P. C. c.. 15.

s. 19. p. 506, 507.

(1) 2 East. P. C. c. 15. s. 17. p. 504. (m) Rex v. Jones, 1 Hawk. P. C. c. 38. s. 34. 1 Leach 537. 2 East. P. C. c. 15. s. 17. p. 504. In Tracy v. Tal

In a more recent case also, it appears to have been ruled that a Parminter's contribution by one of two partners of a proportion of the rent and case. taxes, for certain premises used in the partnership concern, did not give him such a joint possession of those premises as to make it necessary to state them in the indictment as the dwelling-house of both the partners. The indictment was for stealing in the dwelling-house of James Moreland: and the evidence was, that Moreland and one Gutteridge were co-partners; that Moreland was the lessee of the whole premises, and paid all the rent and taxes for them; and that Gutteridge had an apartment in the house, and allowed Moreland a certain sum for board and lodging, and also a certain proportion of the rent and taxes for the shop and warehouses. The felony was committed in the shop. It was contended, that Gutteridge under these circumstances had a joint possession of the shop and warehouses, and that the indictment should have been framed accordingly; but the point being saved upon this objection for the consideration of the judges, they were of opinion that the indictment was right. (n)

If a house be let to A. and a warehouse under the same roof, and with an inner communication, to A. and B., the warehouse cannot be described as the dwelling-house of A. The indictment was for a burglary in the dwelling-house of Josiah Richards; and the breaking was into warehouses under the same roof with Josiah Richards's dwelling-house, and communicating with it internally; but the dwelling-house was let to J. Richards alone, and the warehouses were let to him and his brother, who lived elsewhere. Upon a case reserved, the judges held that the warehouses could not be deemed part of J. Richards's dwelling-house, as they were let to him and his brother, though by the same landlord, and that the conviction was therefore wrong. (o)

Owner of a ing open the apartments of his lodgers

house break

will not be

As, according to the rule which has been stated as now established upon this subject, where the owner of a house lets out apartments in it to lodgers, but continues to inhabit some part of the house himself, and has but one outer door common to him and his lodgers, such apartments must be considered as parcel of his guilty of burdwelling-house; (p) it will be a necessary consequence that if he glary. should break open the apartments of his lodgers in the night and steal their goods, the offence will not be burglary; on the ground that a man cannot commit burglary by breaking open his own house. (9)

III. The definition of burglary now leads us to the time at of the time at

bot, 2 Salk. 532. (a case upon a distress for a poor's rate) it was ruled by Holt, C. J., that if two several houses are inhabited by several families who make and have but one common avenue or entrance for both; yet, in respect of their original, both houses continue rateable severally, for they were at first several houses; and if one family goes, one house is vacant. But if one tenement be divided by a partition, and inhabited by different families, namely, the owner in one

and a stranger in another, these are
several tenements, severally rateable
while they are thus severally inhabit-
ed; but, if the stranger and his family
go away, it becomes one tenement.

(n) Parminter's case, 1 Leach 537
note (a).

(0) Rex v. Jenkins, East. T. 1813, MS. Bayley, J., and Russ. & Ry. 244. (p) Ante, 28.

(q) 2 East. P. C. c. 15. s. 18. p. 506. Ante, 28.

which the

offence must

namely, the

night.

which the offence must be committed. This time must be the be committed, night; for in the day-time there can be no burglary. (r) It appears that anciently the day was accounted to begin only at sunrising, and to end immediately upon sun-set; but it is now settled as the better opinion that if there be day-light or twilight enough begun or left whereby the countenance of a person may be reasonably discerned, it is no burglary. (s) But this does not extend to moon-light; for then midnight house-breaking might be no burglary. (t) Besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night; when all the creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and rendered his castle defenceless. (u)

The breaking

need not be both in the same night.

The breaking and entering need not be both done in the same and entering night: for if thieves break a hole in a house one night, with intent to enter another night and commit felony, and come accordingly another night and commit a felony through the hole they so made the night before, this seems to be burglary; for the breaking and entering were both noctanter, though not the same night. (x) And this doctrine was recognized in a late case. The prisoner broke the glass of the prosecutor's side-door on the Friday night, with intent to enter at a future time, and actually entered on the Sunday night: and upon a case reserved, the Judges held this to be burglary, the breaking and entering being both by night, and the breaking being with intent afterwards to enter, (y) It is said, however, that if the breaking be in the daytime and the entering in the night, or the breaking in the night, and entering in the day, it will not be burglary. () But upon this position it has been remarked that the authority upon which it appears to have proceeded (a) does not fully prove the point for which it is cited, but only furnishes a resolution to the effect that if thieves enter in by night at a hole in the wall, which was there before, it is not burglary, without stating who made the hole, and of course not coming up to the case of a hole made by the thieves themselves in the day-time, with intent to enter more securely at night. (b) And it is observable that it is elsewhere given as a reason why the breaking and entering, if both in the night, need not be both in the same night, that it shall be supposed that the thieves brake and entered in the night when they entered, for that the breaking makes not the burglary till the entry; (c) which reasoning, if applied to a breaking in the daytime, and an entering in the night, would seem to refer the whole transaction to the entry, and make such breaking and entering also a burglary.

(r) 4 Black. Com. 224.

(s) 3 Inst. 63. 1 Hale 550, 551. Sum. 79. 1 Hawk. P. C. c. 38. s. 2. 1 Bac. Ab. Burglary (D). 4 Black. Com. 224. 2 East. P. C. c. 15. s. 21. p. 509.

(t) 1 Hale 551.

(u) 4 Black. Com. 224.

(x) 1 Hale, 551. 4 Blac. Com, 226.

Ante, 12.

(y) Rex v. Smith, East. T. 1820. MS. Bayley, J., and Russ. & Ry. 417. () 1 Hale, 551.

(a) Crompt. 33 a. ex 8 Ed. IV. cited by Lord Hale, 551.

(b) Note (k) to 1 Hale, 551. (ed. 1800. 2 East. P. C. c. 15. s. 21. p. 509. (c) 1 Hale, 551.

Of the intent

to commit a

IV. The last part of the definition of burglary relates to the intent. The act of breaking and entering the mansion- felony. house in the night must be done" with intent to commit some 66 felony within the same, whether such felonious intent be exe"cuted or not." (d) And where the breaking is a breaking out of the dwelling-house in the night there must have been a previous entry with intent to commit a felony, or an actual committing of a felony in such dwelling-house. (e)

be sufficient.

If the intention of the entry be either laid in the indictment, or An intent to appear upon the evidence, to have been only for the purpose of commit a trescommitting a trespass, the offence will not be burglary. There- pass will not fore, an intention to beat a person in the house will not be sufficient to sustain the indictment; for though killing or murder may be the consequence of beating, yet if the primary intention were not to kill, the intention of beating will not make burglary, (ƒ) The entry must be for a felonious purpose. (g) It should, however be observed, that if a felony be actually committed, the act will be prima facie pregnant evidence of an intent to commit it; and it is a general rule, that a man who commits one sort of felony in attempting to commit another, cannot excuse himself upon the ground that he did not intend the commission of that particular offence. (h) But it seems that this must be confined to cases where the offence intended is in itself a felony. (i)

The prisoner was indicted for burglary, in breaking and enter- Dobbs's case. ing 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 acquitted, 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. (k)

The prisoner, being a servant or journeyman to one John Fuller, Dingley's case. 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 guineas, behind him; but afterwards in the night time broke open his master's house,

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