Case of Knight and Roffey. The felony be either felony at common law 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 money in right, it was the servant's money in possession, and the original act was no felony. (1) 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. (m) It is quite clear, therefore, that the entry must be with a intended may felonious intent. And it seems also to be now well established, contrary to some opinions which have been formerly entertained upon the point, (n) that it makes no difference whether the offence or by statute. intended were felony at common law, or only created so by statute; and the reason given for the better opinion is this, that (1) 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 appeared that the special verdict was found at the Easter Sessions, 1687, and argued in the King's Bench in Hil. T. 3 Jac. 2. and in which it was said to have been determined that this offence was not burglary, but trespass only. See the case cited also as Rex v. Dingley, 1 Hawk. P. C. c. 38. s. 37. and as a case Anon, in 2 East. P. C. c. 15. s. 22. p. 510. (m) Rex v. Knight and Roffey, East. T. 1782. 2 East. P. C. c. 15. s. 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. 2. c. 34. (many provisions of which are now repealed, see vol. 1. p: 117.) 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 sufficient for that purpose. (n) 1 Hale 562. Crompt. 32. 2 East. P. C. c. 15. s. 22. p. 511. whenever a statute makes any offence felony, it incidentally gives it all the properties of a felony at common law. (0) It is necessary to ascertain with exactness 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. (p) 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. (q) And where the charge 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. (r) But if the indictment charge a burglary with intent to commit a felony, it will be supported by evidence of a felony actually committed. (s) 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. (t) But the intent to commit a felony, and the actual commission of it, may both be alleged; and in general this is the better mode of statement. (u) 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 (0) 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, 1Str. 481, Rex v. Knight and Roffey, ante, note (m). (p) 2 East. P. C. c. 15. s. 25. p. 514. Rex v. Vandercomb and Abbott 2 Leach 717. (4) 2 East. P. C. c. 15. s. 25. p. 514. (r) Jenks's case, O. B. 1796, cor. Macdonald, C. 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 (8) Rex v. Locost and Villars, Kel. (t) 1 Hale 560. 2 East. P. C. c. 15. s. 25. p. 514. Rex v. Furnival, East. T. 1821, Russ. & Ry. 445. (u) 1 Hale 559. Rex v. Furnival, Russ. & Ry. 446. Of the proceedings. Indictment. that the fact Allegation as to the mansion or dwelling-house. the goods of a person; and the second 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. (x) Having thus treated of the offence of burglary, according to its definition, we may enquire shortly concerning the proceedings against offenders by indictment. It is essential that the indictment should state the fact to have been done in the night, noctanter, or nocte ejusdem diei. (y) 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. (2) It is not necessary, however, that the evidence should correspond with the allegation as to the hour, so that it shews the fact to have been committed in the night. (a) The offence must be laid, as we have seen, to have been committed in a mansion-house, or dwelling-house, the term dwellinghouse being that more usually adopted in modern practice. (b) It would not be sufficient to lay it generally as having been committed in a house. (c) Where the burglary has been committed in such an outhouse as by law is considered part of the dwelling-house, it must be laid as having been done in the dwelling-house, or in a stable, barn, &c. part of the dwelling-house; either of which statements may be adopted. (d) The parish in which the dwellinghouse is laid to be situate must be correctly stated, as a variance in this respect will be fatal. (e) Upon an indictment for stealing (x) Thompson's case, Norfolk Sum. (y) 1 Hale 549. Ante, 1, 32. that it was done in the night. (a) 2 East. P. C. c. 15. s. 24. p. 513. (d) Garland's case, 1 Leach 144. where an outhouse having been broken open, the indictment was for breaking and entering the dwelling-house: and Dobbs's case, 2 East. P. C. c. 15. s. 24. p. 512. and s. 25. p. 513. where the indictment was for breaking and entering the stable of J. B. part of his dwelling-house. (c). (e) 2 Stark. Crim. Plead. 415. note in a dwelling-house, it has been held that if it is not expressly stated where the dwelling-house is situated, it shall be taken to be situate at the place named in the indictment by way of venue. The indictment stated that the prisoner on, &c. at Liverpool, one coat of J. S., of the value of 40s. in the dwelling-house of W. T., then and there being, then and there feloniously did steal: and, a case being reserved upon the question whether the indictment shewed sufficiently that the dwelling-house was situate at Liverpool; the judges held that it did. (f) The allegation of the offence having been committed in a mansion-house, must be understood, however, as confined to burglaries in private houses; for though it has been quaintly observed, that a church is domus mansionalis Dei, (g) it is the better opinion that the indictment, in the case of a burglary committed in a church, need not proceed upon such a supposition, but will be more properly framed, according to the truth of the fact, by stating the offence to have been committed in the parish church of the parish to which it belongs. (h) It is necessary to state the name of the owner of the dwellinghouse, in the indictment, with accuracy, and such certainty to a common intent, as is, in general, necessary in the description of a party who has sustained an injury. (į) In a case where the indictment stated the burglary to have been committed in the shop cujusdam Ricardi, without mentioning the sirname of the owner, it was doubted whether it was good. (k) And where the name of the owner of the dwelling-house was altogether mistaken, as where the indictment laid the burglary to have been committed in the dwelling-house of John Snoxall, and it appeared that it was not the dwelling-house of John Snoxall, it was holden that the prisoner could not be found guilty either of the burglary, or of stealing to the amount of forty shillings in the dwelling-house: it being essential, in both cases, to state in the indictment the name. of the person in whose house the offences are committed. (1) And where the prisoner was indicted for stealing in the dwelling-house of Sarah Lunns, and it appeared in evidence that her name was Sarah London; the variance was holden to be fatal to the capital part of the indictment. (m) Statement of the name of the owner of the dwellinghouse. burglari ously,-and broke and The terms of art usually expressed by the averment "feloni- Terms of art "ously and burglariously did break and enter" are essentially necessary to the indictment. The word burglariously cannot be expressed by any other word or circumlocution; and the averment that the prisoner broke and entered is necessary, because a (f) Rex v. Napper, Mich. T. 1824, MS. Bayley, J., and Ry. & Mood. C. C. 44. (g) 3 Inst. 64. (h) 1 Hale 556. 1 Hawk. P. C. c. S8. s. 17. 2 East. P. C. c. 15. s. 24. p. 512. (i) 2 East. P. C. c. 15. s. 24. p. 513. 1 Chit. Crim. Law 215, et sequ. 3 Chit. Crim. Law 1096. Ante, 20, et sequ. (k) Cole's case, Moor 466. 1 Hale 558. 2 East. P. C. c. 15. s. 24. p. 513. entered. Of laying the intent; and of joining burglary and larceny in the same indict ment. Of joining three offences in the same indictment. Of laying dif breaking without an entering, or an entering without a breaking, will not make burglary. (n) With respect to the intent, it is clear that it must be expressly alleged in the indictment, and proved agreeably to the fact, either that the party committed a felony in the dwelling-house, or that he broke and entered the house with intent to commit a felony therein. (0) And it seems to be the better course first to lay the intent, and then state the particular felony, if a felony has actually been committed. For though where an indictment charges that the prisoner" the dwelling-house of A. B. feloniously and bur"glariously did break and enter and the goods of A. B. then and "there feloniously and burglariously did steal, take," &c. it comprises two offences, namely, burglary and larceny; and the prisoner may therefore be acquitted of the burglary, and found guilty only of the larceny; yet it seems he cannot be found guilty of the burglary if he be acquitted of the larceny; on the ground that when the offence is so charged the larceny constitutes part of the burglary. (p) It has therefore been recommended, by high authority, as the better way, to charge the prisoner with breaking, &c. with intent feloniously and burglariously to steal, &c. and to add also the particular felony; as upon such an indictment he may be convicted of a simple burglary, though acquitted of the felony. (g) It was also said, by the same high authority, that three offences might have been joined in the same indictment; namely, burglary, larceny, and felony, upon the statute of 5 & 6 Ed. 6. c. 9. (r) for robbing a person in a dwelling-house, the owner, his wife, &c. then being within, whether waking or sleeping. And that upon such indictment, which need not have concluded against the form of the statute, the prisoner might have been convicted of the burglary, and found not guilty of felony; or convicted of the felony upon the statute 5 & 6 Ed. 6. c. 9. and found not guilty of the burglary; in either of which cases he would have been ousted of his clergy; or he might have been convicted of the larceny only, and found not guilty of the burglary and the felony upon the statute; in which case he would have been entitled to his clergy. )s) We have already seen that different intents may be stated in ferent intents. the indictment; and such a mode of proceeding, by laying the same fact in different ways, may be rendered expedient by the particular circumstances of the case. (t) Of the plea of autrefois acquit. Rex v. Van It was decided in an important case, in which the point was fully considered, that an acquittal upon an indictment for burglary, in breaking and entering a dwelling-house and stealing dercomb and goods, cannot be pleaded in bar to an indictment for burglary in the same dwelling-house, and on the same night, with intent to steal; on the ground that the several offences described in the two indictments could not be said to be the same. Abbott. A prisoner indicted for burglary, in |