The indictment must state the name of the owner of the house correctly. A prisoner in name of the owner of the house should be correctly stated in the indictment; as a material variance in this respect will be fatal to the capital part of the charge. Thus, where an indictment upon the statute of Anne stated the dwelling-house to belong to one John Snoxall, and upon the evidence it appeared that it was not his house; it was holden that the prisoner could not be convicted upon that statute: (i) and it was holden to be a variance fatal to the capital part of an indictment upon the same statute where the house was stated to belong to Sarah Lunns, and it appeared on the evidence that the proper name was Sarah London. (k) In this, as in most other offences, any one of several persons may be found guilty upon an indictment charging them with a joint offence. But they cannot be found guilty separately of separate parts of the charge, and if they be so found guilty separately, a pardon must be obtained, or nolle prosequi entered, as to the one who stands second upon the verdict, before judgment can be given against the other. Thus, where two persons, Hempstead and Hudson, were indicted upon the statute of Anne for stealing in the dwelling-house to the value of 67. 10s. and the jury found Hempstead guilty as to part of the articles of the value of 61. and Hudson guilty as to the residue; the Judges (upon a case reserved) held that judgment could not be given against both, but that upon a pardon or nolle prosequi, as to Hudson, it might be given against Hempstead. (1) Where a prisoner was indicted for robbery in a house, or burdicted for burglary and stealing of goods, and the evidence proved a larceny glary, &c. found guilty committed in the dwelling-house to the amount of forty shillings; upon the stat it was held that he might be acquitted of the robbery and burute of 12 Anne. glary, and found guilty upon the statute of Anne, although there was no special count upon the statute in the indictment. (m) Principals in gree, and ac cessories. Principals in the second degree, and accessories before the fact, the second de- are punishable with death, as the principals in the first degree; and accessories after the fact (except receivers of stolen property) are liable to imprisonment for two years. (n) The proceedings for the trial of accessories are regulated by 7 Geo. 4. c. 64. ss. 9, 10, 11. (0) CHAPTER THE SIXTH. OF BREAKING, &c. AND STEALING IN A BUILDING WITHIN THE CURTILAGE. THE statute 7 & 8 Geo. 4. c. 29., after providing (by s. 13.) that no building, although within the same curtilage with the dwellinghouse, and occupied therewith, shall be deemed to be part of such dwelling-house for the purpose of burglary, or for any of the purposes before-mentioned in the act, unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and enclosed passage leading from the one to the other, contains the following enactment. By the fourteenth section it is enacted, "That if any person shall break 7 & 8 G. 4. c. "and enter any building, and steal therein any chattel, money, or 29. s. 14. “ valuable security, such building being within the curtilage of a "dwelling-house, and occupied therewith, but not being part "thereof, according to the provision hereinbefore mentioned, 66 66 every such offender being convicted thereof, either upon an indictment for the same offence, or upon an indictment for "burglary, house-breaking, or stealing to the value of five pounds "in a dwelling-house, containing a separate count for such offence, "shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or pri"vately whipped, (if the court shall so think fit), in addition to "such imprisonment." 66 By s. 61., principals in the second degree, and accessories before the fact are punishable in the same manner as principals in the first degree, and accessories after the fact, (except receivers,) are liable to imprisonment for any term not exceeding two years. (a) This enactment, specifying as it does in express terms a building within the curtilage of a dwelling-house, appears not to apply to many of those buildings and outhouses, which although not within any common inclosure or curtilage, were deemed by the (a) The proceedings for the trial of accessories are regulated by 7 G. 4. c. 64. ss. 9, 10, 11. Cases in which particular buildings were held to be par cel of a dwell ing-house. old law of burglary, parcel of the dwelling-house, from their adjoining to such dwelling-house, and being in the same occupation. The enquiry under this provision of the statute will be simply whether the building in question is within the curtilage or homestall; but it may be useful to refer to some of the points formerly decided in cases of burglary, in which it became material to consider whether particular buildings were parcel of a dwelling-house, and the circumstance of their being situated within a common inclosure appears to have been treated as a material ingredient. It should be observed, however, that in several of these cases the particular buildings might possibly have been held to be parcel of the dwelling-house independently of that cir cumstance. In a case where the prisoner had broken into a goose-house which opened into the prosecutor's yard, into which yard the prosecutor's house also opened, and the yard was surrounded partly by other buildings of the homestead, and partly by a wall, some of which buildings had doors opening backwards, as well as doors opening into the yard, and there was a gate in one part of the wall opening upon a road, the Judges held that the goose-house was parcel of the dwelling-house. (b) In another case, the prosecutor's house was at the corner of a street, and adjoining thereto was a workshop, beyond which a stable and coach-house adjoined; all were used with the house, and had doors opening into a yard belonging to the house, which yard was surrounded by adjoining buildings, &c. so as to be altogether an enclosed yard: the workshop had no internal communication with the house, and it had a door opening into the street, and its roof was higher than that of the dwelling-house; The street door of the workshop was broken open in the night; and upon an indictment for burglary, the question arose, whether the workshop was parcel of the dwelling-house; and upon a case reserved, the Judges were unanimous that it was. (c) And it was holden, that an outhouse in the yard of a dwelling-house was parcel of the dwelling-house, the yard being inclosed, although the occupier had another dwelling-house opening into the yard, and had let such other dwelling-house with certain easements in the yard; the two houses having been originally in one. The prosecutor had in one range of buildings a house which he occupied, a house which he let, and a warehouse; all of which opened into a yard which was surrounded by a wall, gates, and buildings : the tenant of the second house had certain easements in the yard, and his house was between the prosecutor's house and the warehouse, and the two houses had formerly been in one. The prisoner was convicted of burglary in breaking into the warehouse, and a case was reserved upon the question, whether such warehouse could be deemed part of the prosecutor's house; and the Judges (nine of them being present) were of opinion that the warehouse was part of the prosecutor's house; it was so before (b) Rex v. Clayburn and another, East. T. 1818. Russ. & Ry. 360. (c) Rex v. Chalkling and another, East. T. 1817. MS. Bayley, J., and the house was divided, and it remained so notwithstanding the division; and they held the conviction right. (d) It should seem that a building which was not any parcel of a dwelling-house, by the old law of burglary, cannot be considered as a building within the curtilage under the recent statute. It will be material therefore to attend to the connection of the curtilage with some dwelling-house in which burglary might have been committed. And we have seen that, by the express provision of the statute, the building within the curtilage must be occupied with the dwelling-house. (e) It was holden that burglary could not be committed by breaking into a centre building used for purposes of trade, but having no internal communication with the dwelling-houses which formed the wings. The building was stated, in the first count of the indictment, as the dwelling-house of M. R. Boulton; in the second, as the dwelling-house of John Bush; and in the third, as the dwelling-house of William Nelson. It appeared, upon the evidence, that the place broken into was a centre building, having two wings; that in such centre building an extensive business was carried on, relating to different manufactories in which one Matthew Boulton was concerned with M. R. Boulton, William Nelson, and several other persons; and also relating to two other manufactories in which Matthew Boulton was concerned on his own account that in part of one of the wings was the dwellinghouse of M. R. Boulton, and in the other part of the same wing, the dwelling-house of John Bush, mentioned in the second count of the indictment, who was a workman of Matthew Boulton's; but that neither of such dwelling-houses had any internal communication with the centre building, except only, in the one occupied by John Bush, a window, which looked into a passage that ran the whole length of the centre building; and that in the other wing was the dwelling-house of William Nelson, which also had no internal communication with the centre building. It also appeared that in the front of this building there was a terrace or front yard, fenced round in different ways, and at the end of the pile of building, by a wall, with gates for horses and carriages, and a door for foot passengers: that the prisoners entered by a door in the front yard, through which they went along the front of the building, and round it into another yard behind it, called the middle yard; from thence, through a door which had been left open, up a staircase in the centre building, where they broke open some of the rooms; having so entered the premises, by the assistance of a servant of Matthew Boulton's, who acted as an accomplice for the purpose of effecting the apprehension of the prisoners. Upon this case being reserved for the consideration of the Judges, they all agreed that the prisoners were not guilty of burglary; and the grounds upon which they so decided are stated to have been, that the centre building, being a place for carrying on a variety of trades, and having no internal communication with the adjoining houses, could not be considered as part Factory and dwellinghouse with an internal communication, the factory being used partly for the separate business of the oc cupier of the dwellinghouse, and of any dwelling-house; and that it was not to be considered as under the same roof as the houses adjoining, though the roof of it had a connexion with the roofs of the houses. (ƒ) But where there was an internal communication between a factory and the dwelling-house by means of an open passage only, the factory, being within the same fence as the dwelling-house, and used with it, was held to be parcel of the dwelling-house; although it was used partly for the separate business of the occupier of the dwelling-house, and partly for a business in which he had a partner. The premises were surrounded by a garden wall, the front wall of the factory, and the wall and gate of the stable yard; they were of the extent of rather more than an acre, and the house was in the centre; there was no other communication between the house and the factory than by an open passage inside the walls. which he had In the factory the prosecutor, the occupier of the dwelling-house, carried on one business of his own, and another jointly with a partner, who lived elsewhere; and the rooms over the factory were used for the joint as well as the separate business. These rooms were broken into, and part of the separate property of the prosecutor, and also part of the joint property was stolen; and upon an indictment for burglary in the dwelling-house of the prosecutor, and after conviction, a case being reserved, the Judges held that these rooms were part of the prosecutor's dwelling-house, and that the conviction was right.(g) partly for a business in a partner. Outhouse holden under a from the dwelling-house. distinct title Outward fence of curtilage not opening It was said upon the old law of burglary, that if a man took a lease of a dwelling-house from A., and of a barn from B., such barn would be no parcel of the dwelling-house, and not therefore a place in which burglary could be committed; (h) a position leading to the inference, that no outhouse, holden under a distinct title from the dwelling-house, could be the subject of burglary. But upon this it was observed, that the circumstance of an outbuilding being enjoyed by the occupier under a different title from his dwelling-house, seemed a very unsatisfactory reason of itself for excluding it from the same protection, if it were within the curtilage, or under the same roof, and actually enjoyed as parcel of the dwelling-house in point of fact, and under such circumstances as would, apart from the difference of title, constitute it parcel of the mansion in point of law. (i) A door, wall, or other fence forming part of the outward fence of the curtilage, and opening into no building, but into the yard into a building. only, was held not to be such a part of the dwelling-house as that the breaking thereof would constitute burglary; and it was held to make no difference that the door broken was the entrance to a covered gateway, and that some of the buildings belonging to the dwelling-house, and within the curtilage, were over the gateway, and that there was a hole in the ceiling of the gateway for taking up goods into the building above. The prosecutor had a dwellinghouse, warehouses, and other buildings, and a yard; the entrance (f) Rex v. Egginton and others, 2 Leach, 913. 2 East. P. C. c. 15. s. 10. p. 494. 2 Bos. & Pul. 508. (g) Rex v. Hancock, East. T. 1810, MS. Bayley, J., and Russ. & Ry. 170. (h) 1 Hale 559. (i) 2 East. P. C. c. 15. s. 10. p. 494. And see ante, 15, 16. |