lodger's dwelling-house (g). Thus a loft, rented and resided in by a coachman, is his dwelling-house, though situated over his mistress's stables (h).

All difficulty may be obviated by laying the house in different counts as that of different persons.

The owner of a house who breaks and enters the room of a lodger therein, and steals his goods, can only be convicted of larceny (i).

The local description of the house, as to the parish, &c. where it is situate, must accord with the fact, and be proved strictly as laid. If two parishes have been named," parish aforesaid" refers to the last parish (k). If the place where the house is situate is not named, it shall be taken to be situate at the place laid as special venue (7).

Breaking.]-Breaking a house may be actual, viz., by breaking a wall, door, or pane of glass (m), picking a lock of a door, opening it by a key, lifting a latch, unloosing any fastening provided for a door or window, taking the glass from a door, coming down a chimney, lifting up or pulling down a window kept shut by the pulley weight only, without any fastening, opening a window fastened with wedges only, opening a window by putting an arm through a broken pane, and by so breaking more glass out, getting at and removing the window fastening, or lifting up the flap of a cellar usually kept down by its own weight. These are all breakings, whether done to admit the thief, or any part of his body, or any weapon or instrument with which to effect a felonious intent, e. g., to draw out goods with it. But entering by an open door, or window partly open, or through an aperture made to admit light, is not, though the felon open it more so as to admit himself (n).

(g) R. v. Rogers, 1 Leach, 89; R. v. Trapshaw, id. 427, and other cases cited.

(h) R. v. Turner, 1 Leach, 305; 2 East's P. C. 492. The fact of a servant's paying his master rent for a house prevents it from being described as the master's, though it is on the premises where his business is carried on, and though the servant has it because of his service, R. v. Jarvis and Walker, 1 Mood. C. C. 7; but if a workman at a colliery resides in one of his master's cottages rent free, his occupation, though at law that of his master at the master's election, may as to third persons, e. g. in an indictment for burglary, be considered as that of either; it being wholly for the use and benefit of the servant, and not merely, if at all, for the use or business

of the master or of the colliery, R. v. Jobling, Russ. & Ry. 525. See R. v. Witt, 1 Mood. Cr. C. 248; R. v. Stock, 2 Taunt. 339; 2 Leach, 1015, S. C.; R. v. Collett, R. & Ry. 498; R. v. Lakenheath, 1 B. & Cr. 531; R. v. Margetts and others, 2 Leach, 520.

(i) Kelyng, 84; 2 East's P. C. 502, 506.

(k) R. v. Richards, 1 M. & Rob. 177. (1) R. v. Napper, Moo. C. C. 44. (m) Even though it may have been cut for a month, if it remains exactly in its place without any opening whatever, and the prisoner puts his hand through, Reg. v. Bird, 9 C. & P. 44.

(n) See cases collected, Archb. Cr. Pl. & Ev. 291, 7th ed.; R. v. Gadbury, 8 C. & P. 676.

Breaking a house may be constructive; as where the offender, with intent to commit a felony, obtains admission by an artifice in order to effect it. Knocking at a door, and rushing in on its being opened, getting into a house by promising ale to the servant who keeps it, or conspiracy with him to rob it, are instances (o).

Entry and taking, what.]-Entering a house with a felonious intent through an outer door or window which is open, and afterwards breaking or unlocking an inner door of a room, is a "breaking" (p). So is the opening by a servant of a door of a room not immediately within the scope of his employment, or by a lodger or guest in an inn of another room in it, if with a felonious design. Breaking an outward gate, (e. g. a gate of an area, part of the outward fence of a curtilage and yard), is not a breaking of a dwelling-house, where there is no free passage in time of sleep from the area, yard, &c. into the house (q).

There must be an entry as well as a breaking, though they need not be simultaneous. Stepping over the threshold, putting a hand, a finger, or a hook, &c. in at a window, to undo its latch, or to draw out goods, suffices; but throwing up a window, and introducing a crow-bar to force the shutters, without having any part of the hand within it, will not, though it be done with intent to steal (r). If the entry was in the night, so as to amount to burglary, it seems that the above indictment may be sustained notwithstanding (s). The taking must be actual, and a momentary possession after the abstraction will suffice; e. g., where a thief took money, and being instantly detected, threw it under a firegrate (t). If a breaking and entry be proved, the value of the goods stolen is immaterial: if the breaking and entry is not proved, but the goods are laid, and proved to be of 51. value, and to have been taken in the dwelling-house, the party may be convicted of stealing in a dwelling-house (u); and if only the larceny is proved, without the other circumstances, the party may be convicted of simple larceny.

Indictment for stealing in a Dwelling-house, some Person therein being put in Fear (on 7 W. IV. and 1 Vict. c. 86, s. 5).

That A. B., late of, &c. on, &c. at, &c. one silver basin, of the value of three pounds, and one coat of the value of five shillings (chattel, money or valuable security), of the goods and chattels of J. N., in the dwelling-house of the said J. N., there situate (x), then and there being found, then and there [in the said dwellinghouse] (y) feloniously did steal, take, and carry away, and that at the time of the committing of the felony aforesaid, he, the said A. B., then and there, in the said dwelling-house, by certain menaces and threats by him then and there used and uttered to and in the presence and hearing of one Sophia N., in the said dwelling-house, and then and there being, her, the said S. N. did put in bodily fear (z), against the form of the statute in such case made and provided, and against the peace, &c.

This offence was punished with death by 7 & 8 G. IV. c. 29, s. 12, but is now visited with transportation for not exceeding fifteen years, nor less than ten years, or imprisonment for not exceeding three years, 7 W. IV. and 1 Vict. c. 86, s. 5. If the stealing takes place in the house, but out of the presence of the party, or in it, but without his knowledge, no fear can be implied; but it seems that it may, if menaces and threats are used when he is present, and knows of the stealing (a). The party may be convicted of simple larceny under this act if the cumulative circumstances are not proved.

Indictment on 7 & 8 G. IV. c. 29, s. 12, for stealing in a Dwellinghouse to the value of 51. or more.

The last indictment will suffice for this, if the allegation of putting in fear be omitted, and the value of each article stolen be annexed to it, thus, "six silver table-spoons, of the value of 31. and twelve silver tea-spoons, of the value of 21." It does not seem in this case absolutely necessary to state where the house is situate, if it is stated as "then and there being," viz. at the parish before laid (b). The punishment for this offence was death by 7 & 8 G. IV. c. 29, s. 25, diminished to transportation for life by 2 & 3 W. IV. c. 62, and to transportation for not exceeding fifteen, nor less than ten years, or imprisonment for not exceeding three years, 7 W. IV. and 1 Vict. c. 90, s. 1.

To convict a party of the offence thus charged, goods of 51. value

(r) See p. 262, note (g).

(y) Though these words are said to be not absolutely essential, Reg. v. Andrews, 1 C. & Mar. 121. Patteson, J.; but are advisable, see his prior opinion in R. v. Smith (Roger) post, p. 269 note.

(z) This must be laid and proved, R. v. Etherington, 2 Leach, 671; East, P. C. 635.

(a) See id.

(b) R. v. Napper, 1 Moo. C. C. 44.

must be taken at one time (c) in the dwelling-house, or such building communicating with it as burglary may be committed in (d). If a stealing only is proved without the above, the conviction can only be for simple larceny. The articles intended to be protected by this act are not goods which, when stolen, were under protection of the prosecutor's person (e); but which were then deposited for safe keeping in a house, &c. or lodging not belonging to the offender himself (ƒ); as, in a hat on a table (g), or by the bedside, on going to rest. It is sufficient if they are left at a wrong house for the person supposed to reside there, and another steals them (h). Whether they are under protection of the house or the person is a question for the court (i). A guest when in bed at an inn, placed his small-clothes containing money under his head. They were stolen. The indictment was on 12 Ann. c. 7 (now repealed by 7 & 8 G. IV. c. 27) for stealing to the amount of 40s. in a dwelling-house. A. Park, J., held that the property having been thus taken under the party's personal protection, was no longer under that of the house (k). A person may be guilty of stealing in his own dwelling-house the goods of another (1).

Indictment for breaking, &c. a Building within the Curtilage, and stealing therein (7 & 8 G. IV. c. 29, s. 14).

That A. B., late of, &c. on, &c. at, &c. a certain building, of one C. D., there situate, feloniously did break and enter (the said building then and there being within the curtilage of the said dwelling-house of the said C. D., there situate, and by the said C. D. then and there occupied therewith; and there being then and there no communication between the said building and the said dwelling-house, either immediate or by means of any covered or enclosed passage, leading from the one to the other) (m); and that the said A. B. then and there, in the said building,

(c) R. v. Petre, 1 Leach, C. C. 294; R. v. Hamilton, id. 348; R. v. C. M. Jones, 4 C. & P. 217.

(d) 2 East, P. C. 644; 7 & 8 G. IV. c. 29, s. 13, R. v. White, 1 Leach, 252; R. v. Woodward, id. 253, n.

(e) R. v. Campbell, 2 Leach, 264; R. v. Owen, 2 Leach, 572; 2 East, P. C. 645.

(f) R. v. Thompson, et al. 1 Leach, 338; R. v. Gould, id. 4; R. v. Taylor, R. & Ry. 418.

(g) R. v. Agnes Hamilton, 8 C. & P. 49, Parke and Patteson, Js.

(h) R. v. Carrol, 1 Moo. C. C. 89. (i) R. v. Thomas, Carr. Supp. 295. (*) The learned judge relied on Castledine's case, East's P. C. 645; Watson's

case, id. 680; Starkie on Cr. Pl. 467; and said that Ward's case held to the contrary, by Bayley, J., at Lancaster summer assize, 1814, might have turned on some peculiar circumstances. Prisoners were convicted of simple larceny, R. v. Challenor and Pycroft, Worcester summer assize, 1824. See ante, p.

244.

(1) Reg. v. Bowden, C. & Kir. 147. (m) These are the words of 7 & 8 G. IV. c. 29, s. 14. This count should be joined to a count for housebreaking or stealing in a dwelling-house to the amount of 51., whenever it is doubtful whether the building is in strictness a dwelling-house. The building must be proved to be within the curtilage (or

with force and arms, one silver spoon, &c. [chattel, money, or valuable security are the words of s. 14: see s. 5, ante, p. 258] of the goods and chattels of the said C. D., in the said building then and there being found, then and there in the said building feloniously did steal, take, and carry away, against the form of the statute, &c. and against the peace, &c.

Punishment.]-The punishment is now transportation for not exceeding fifteen years, nor less than ten years, or imprisonment for not exceeding three years, with or without hard labour, in the common gaol or house of correction, with or without solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour not exceeding one (lunar) month at any one time, and not exceeding three (lunar) months in any one year, as to the court in its discretion shall seem meet (n).

Indictment for breaking and entering and stealing in a Shop, Warehouse, or Counting-house (7 & 8 G. IV. c. 29, s. 15).

That A. B., late of, &c. on, &c. at, &c. the shop (0), [shop, warehouse, or counting-house,] of J. N., there situate, feloniously did break and enter, and one silver ewer of the value of of the goods and chattels of the said J. N., in the said shop, then and there being found, then and there in the said shop (0) feloniously did steal, take, and carry away, against the peace, &c.

The section is directed against the stealing of chattel, money, or valuable security : if the latter is charged, add, "contrary to the form of the statute," &c. (See ante, p. 259.)

The shop must be shown to be the shop of the prosecutor, by his occupation, and carrying on business there, and to be situate as laid. The value of the article stolen is immaterial. If this proof fails, the party may be convicted of simple larceny.

The punishment is the same as for breaking a building within the curtilage and stealing therein (p).

common inclosure of the homestead, see 2 East's P. C. 492, and ante, p. 261), and occupied with the dwelling-house, but not part of it, i. e. not communicating with it, either immediately or by a covered and inclosed passage, see 7 & 8 G. IV. c. 29, s. 12 and 13, ante p. 261.

(n) 7 W. IV. & 1 Vict. c. 90, s. 2, 3; see post.

(0) Essential, R. v. Roger Smith, 2 M. & Rob. 115, Patteson, J. Quære however see ante, p. 267. "Shop" includes a blacksmith's shop containing the forge and used as a workshop, though not inhabited or attached to dwellinghouse,Reg. v. Carter, C. & Kir. 173, Lord Denman: notwithstanding R.v. Saunders, 9 C. & P. 79.

(p) Ibid, ante, p. 261, 262.