Does not ex tend to build ings within the curtilage. Principals in the second degree and accessories. Breaking and entering. The chattel need not be taken out of the house. A person present at the breaking, but not at the stealing, is a principal. The 7 & 8 Geo. 4, c. 29, s. 13, provides and enacts, that no building, although within the same curtilage with the dwelling-house, shall be deemed to be part of such dwelling-house for the purpose of burglary, or for any of the purposes aforesaid, (b) 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. Principals in the second degree, and accessories before the fact, are punishable as the principals in the first degree; (c) and accessories after the fact (except receivers of stolen property,) are liable to imprisonment for two years. (d) The proceedings for the trial, &c., of accessories, are regulated by 7 Geo. 4, c. 64, ss. 9, 10, 11. (e) By analogy to the cases decided upon the repealed statutes (ƒ) it is conceived that such a breaking and entering as would, if committed in the night, constitute a burglary, will be necessary, in order to bring a case within the 7 & 8 Geo. 4, c. 29, s. 12. And by the express words of the statute, the breaking and entering must be attended with some larceny, so that although a house be broken and entered in the day-time with a felonious intent, it will not be an offence within the statute if nothing be taken. But it is not necessary that the chattel should be taken out of the house. Before the 7 & 8 Geo. 4, c. 29, the least removal of the goods from the place where the thief found them, though they were not carried out of the house, was sufficient, as in other larcenies, (g) and the same has been held since that statute. Upon an indictment for housebreaking, it appeared that the prisoner, after having broken into the house, took two half sovereigns out of a bureau, in one of the rooms, but, being detected, he threw them under the grate in that room; it was held, that if they were taken with a felonious intent, this was a sufficient removal of them to constitute the offence. (h) A person present at the breaking and entering, but not at the stealing, is guilty of the whole offence. Upon an indictment against Jordan, Sullivan, and May, for housebreaking, it appeared that Jordan and Sullivan accompanied May, who was to secrete himself in the house, so that during the night he might commit the robbery; and that the door being latched, they assisted him in gaining admission, by opening an umbrella to screen him from observation while he entered; but they went away soon after he got in, and were not seen near the place again until after the robbery had been committed; it was held that as Jordan and Sullivan were present at the commencement of the transaction, they must be considered as guilty of the whole. There had been a case of burglary where the breaking was one night, and the entry the next, and the judges had decided that a party, who was present at the 352, 353. 1 Hawk. P. C. c. 34, ss. 2, 3. 2 Hawk. P. C. c. 33, s. 88, 92. Fost. 108. 2. East, P. C. c. 16, s. 68, p. 631, s. 72, p. 636, s. 75, p. 638. (g) 2 East, P. C. c. 16, s. 75, p. 639. (h) Rex v. Amier, 6 C. & P. 344, Park, J. A. J. breaking, and not present at the entering, was guilty of the whole, and that this was a much stronger case than that. (i) An indictment for house-breaking is good, if it alleges that the prisoner broke and entered the dwelling-house, and the goods of A. B. "in the said dwelling-house then and there being found, then and there (omitting in the said dwelling-house,') feloniously did steal." (j) It seems, also, that questions which may arise upon this statute, Dwellingas to what shall be deemed a dwelling-house, must be governed by house. the same rules as apply to similar questions in cases of burglary, keeping in mind the enactment before mentioned as to buildings within the curtilage. A chamber in one of the inns of Court was held to be a dwelling-house within the repealed statute, 39 Eliz., c. 15. (k) Upon an indictment for burglary and stealing, if it be proved that the prisoner broke and entered, but not in the night time, he may be convicted of house-breaking if any goods are stolen. (7) So on an indictment for house-breaking, if it be not proved that the prisoner broke into the house, he may be convicted of stealing therein to the amount of 5%, if in fact he stole goods in the dwelling-house to that amount; and if the value of the things stolen were under 5l., he may be convicted of simple larceny. CHAPTER THE FOURTH. 8. 1. OF STEALING IN A DWELLING-HOUSE, ANY PERSON THEREIN BEING THIS was a capital offence by the 3 Wm. & Mary, c. 9, s. 1, (a) and the 7 & 8 Geo. 4, c. 29, s. 12, but the 1 Vict. c. 86, s. 1, repeals so much of the 7 & 8 Geo. 4, c. 29, and the 9 Geo. 4, c. 55, (relating to 1 Vict. c. 86, Ireland) "as relates to any person who shall steal any chattel, money, or valuable security to any value whatever in any dwelling-house, Stealing in a any person therein being put in fear," and by sec. 5 enacts, "that dwelling-house whosoever shall steal any property in any dwelling-house, and shall by any menace or threat (b) put any one being therein in bodily fear, shall be guilty of felony, and being convicted thereof shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years." (c) with menace or threat. Meaning of the word property." Sec. 9 enacts," that the word 'property' shall, throughout this act, be deemed to denote every thing included under the words chattel, money, or valuable security," used in the 7 & 8 Geo. 4, c. 29, (d) and 9 Geo. 4, c. 55. (Irish act.) The 7 & 8 Geo. 4, c. 29, s. 13, prevents any building, although within the same curtilage, from being deemed part of the dwellinghouse, unless there be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage leading from the one to the other. And the observations in the preceding chapter, upon questions which may arise as to what shall be deemed a dwelling-house, will apply to the offence now under consideration. It is clear that no breaking of the house is necessary to constitute this offence; and it should seem that property might be considered as stolen in the dwelling-house within the meaning of the statute, if a delivery of it out of the house should be obtained by threats, or an assault upon the house by which some (a) Repealed by the 7 & 8 Geo. 4, c. 27. (b) The words in the 7 & 8 Geo. 4, c. 29, s. 12, were, any person therein being put in fear," which might be without any menace or threat. C. S. G. (c) See ss. 6 & 7, ante, p. 841, as to principals in the second degree, hard labour and solitary confinement. (d) By sec. 5 of which any tally, order, or other security whatsoever, entitling or evidencing the title of any person or body corporate, to any share or interest in any public stock or fund, whether of this king dom, or of Great Britain or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, or to any deposit in any savings bank, or any debenture, deed, bond, bill, note, warrant, order, or other security whatsoever for money, or for payment of money, whether of this kingdom or of any foreign state, or any warrant or order for the delivery or transfer of any goods or valuable thing, are respectively included in the words" valuable security." person therein should be put in fear. (e) But questions of difficulty may perhaps arise as to the degree of fear which must be excited by the thief. The repealed statute 3 Wm. & Mary, c. 9, enacted that every The putting in person who should feloniously take away any goods or chattel fear. being in any dwelling-house, the owner or any other person being therein and put in fear, should not have the benefit of clergy. It does not appear to have been expressly decided upon that statute whether or not it was necessary to prove the actual sensation of fear felt by some person in the house, or whether fear was to be implied, if some person in the house were conscious of the fact at the time of the robbery. But it was suggested as the better opinion, and was said to have been the practice, that proof should be given of an actual fear excited by the fact when committed out of the presence of the party, so as not to amount to a robbery at common law. (f) And it was observed that where the fact was committed in the presence of the party, possibly it would depend upon the particular circumstances of the transaction, whether fear would or would not be implied; but that clearly if it should appear that the party in whose presence the property was taken was not conscious of the fact at the time, the case was not within that statute. (g) The time, place, and circumstances ought to be considered by the jury in order to determine whether they were such as would put a person of reasonably sound mind in fear. Upon an indictment upon the 7 & 8 Geo. 4, c. 29, for stealing in a dwelling-house, a person therein being put in fear, it appeared that the prosecutor's wife, about eleven at night, was going to bed, when she saw the prisoner under the bed, in which her husband was asleep, and she immediately screamed out in alarm, on which the prisoner, without offering her any sort of violence, or saying anything, passed out of the room; Tindal, C. J., told the jury that it was not necessary there should be any violence used; but if, from the circumstances, taking into consideration the time of night, and the place where the prisoner was found, a person in a dwelling-house was put in fear (those circumstances operating on a reasonably sound mind) it was a putting in fear within the statute. (h) Time, place, and circum stances to be considered. Indictment must allege that the party was put in fear It was decided upon the 3 Wm. & Mary, c. 9, (now repealed) that the indictment must expressly allege that some person in the house was put in fear by the prisoner. The form was (after stating a stealing of goods in the dwelling-house of one J. G.,) " he the said J. G., and one by the prisoner. M. E., and one M. G., the wife of the said J. G., then being in the said dwelling-house, and being put in fear therein ;" and, on the first consideration of the case, most of the judges, to whom it was referred, inclined to think that the indictment was good, in pursuing the words of the statute; but they ultimately agreed that the prisoners were entitled to their clergy for the defect in the indictment, in not stating that the persons in the house were put in fear by the prisoners. (i) (e) See Burglary, ante, p. 792, and 2 East, P. C. c. 16, s. 55, p. 623. (f) 2 East, P. C. c. 16, s. 71, p. 635. Rex v. Etherington and Brook, id. ibid. (g) Id. ibid. (h) Little's case, 1 Lewin, 201. It should seem that this case would not come within the new act, no menace or threat (i) Rex v. Etherington and Brook, 2 But in this case the judges held, that the prisoners were properly convicted of the larceny, and they accordingly received sentence of transportation. (j) So where a prisoner was indicted for house-breaking and stealing in the house goods of more than five shillings value, and the indictment did not state whether any person was in the house, the judges were unanimously of opinion that although clergy was taken away equally, whether any person was in the dwelling-house or not, the property stolen being above five shillings in value, (either under the 39 Eliz., c. 15, or the 3 Wm. & Mary, c. 9, s. 1) yet the indictment ought to shew upon which charge the case was founded, otherwise the prisoner could not have the means of knowing as he ought, which charge he was to meet, and that the prisoner was therefore entitled to his clergy. (k) The enactments respecting principals in the second degree and accessories mentioned in the chapter on burglary (1) apply also to the present offence. By sec. 10 of the 1 Vict., c. 86, offences committed within the jurisdiction of the admiralty may be dealt with in the same manner as any other felony committed within that jurisdiction. (m) upon being referred to some precedents of other books and precedents. (j) 2 Leach, 673. (k) Rex v. Marshall, East. Term, 1827. R. & M. C. C. R., 158. (1) Ante, p. 841. (m) The act does not extend to Scotland, s. 11. |