[taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance in order to search for traitors, and then to bind the constable and rob the house: all these entries have been adjudged burglarious, though there was no actual breaking: for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process (c). And so if a servant opens and enters his master's chamber door, with a felonious design; or if any other person lodging in the same house, or in a public inn, opens and enters another's door with such evil intent; it is burglary. Nay, if the servant conspires with a robber, and lets him into the house by night, this is burglary in both (d); for the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease, rather aggravates than extenuates the guilt. As for the entry, any the least degree of it with any part of the body, or with an instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or hook in at the window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries (e). The entry may be before the breaking as well as after;] for though there were once different opinions upon the question, whether breaking out of a house to escape, by a man who had previously entered by an open door with intent to steal, were burglary, [Lord Bacon (f) holding the affirmative and Sir Matthew Hale (g) the negative,] it is now enacted that [whosoever shall enter the dwelling-house of another with (c) Hawk. P. C. b. 1, c. 38, s. 5. (d) Cornwall's case, Stra. 881; 1 Hale, P. C. 553. (e) 1 Hale, P. C. 555; Hawk. P. C. b. 1, c. 38, s. 7; Fost. 108. As to what entries are burglarious, see the following cases; R. v. Bailey, R. & R. C. C. 341; R. v. Russell, 1 M. C. C. R. 377; R. v. Davis, R. & R. C. C. 355; R. v. Brice, ib. 450; R. v. Haines, ib. 451. And as to what are not, see R. v. Lawrence, 4 Car. & P. 231; R. v. Smith, R. & M. C. C. R. 178; R. v. Rust, ib. 183; R. v. Roberts, Car. C. L. 293. (f) Bac. Elem. 65; and see 2 East, P. C. c. 15, s. 6. (g) 1 Hale, P. C. 554. intent to commit any felony therein, or being in such dwelling-house shall commit any felony therein, and shall in either case break out of the said dwelling-house in the night, shall be deemed guilty of burglary (h). [But it is universally agreed that there must be both a breaking, either in fact or by implication, and also an entry,- in order to complete the burglary.] As to the intent. It is clear that, except where the commission of a felony in the dwelling-house is connected with the crime in a different manner, as in the instance above given, [such breaking and entry must be with a felonious intent, otherwise it is only a trespass (i). And it is the same whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, a murder, a rape, or any other felony, is burglary, whether the thing be actually perpetrated or not. Nor does it make any difference, whether the offence were felony at common law or only created so by statute,-since that statute which makes an offence felony, gives it incidentally all the properties of a felony at common law. Thus much for the nature of burglary; which was a felony at common law, but within the benefit of clergy (k). The statutes, however, of 1 Edw. VI. c. 12, and 18 Eliz. c. 7, took away clergy from the principals; and that of 3 & 4 Will. & M. c. 9, from all abettors and accessories before the fact.] And though these provisions were repealed some time since (l), yet by those in force up to a (h) 24 & 25 Vict. c. 96, s. 51. A similar enactment was formerly contained in 12 Ann. c. 7 (repealed by 7 & 8 Geo. 4, c. 27), and afterwards in 7 & Geo. 4, c. 29 (repealed by 24 & 25 Vict. c. 95). (i) 1 Hale, P. C. 561. VOL. IV. (k) Blackstone remarks, (vol. iv. p. 227,) that by the laws of Athens, which punished no simple theft with death, burglary was a capital crime, and cites Pott. Antiq. b. i. c. 26. (1) By 7 & 8 Geo. 4, c. 27. Provisions as to the punishment of recent period, viz., by 7 Will. IV. & 1 Vict. c. 86, burglariously to break and enter into any dwelling-house, and to assault with intent to murder any person being therein; or to stab, cut, wound, beat, or strike any such person, was a felony, punishable with death. But this Act is now repealed(); and by 24 & 25 Vict. c. 96, s. 52, whosoever shall be convicted of the crime of burglary, shall be liable to penal servitude for life, or any term not less than three years; or to be imprisoned for any term not more than two years; and, in the case of imprisonment, hard labour and solitary confinement may be superadded. In connection with the crime of burglary it may be mentioned, that whosoever shall enter any dwelling-house in the night, with intent to commit a felony, shall be guilty of felony, and punishable with penal servitude to the extent of seven years, or imprisonment as above specified (m). And that whosoever shall be found by night, armed with any dangerous or offensive weapon or instrument, with intent to break or enter any building, and to commit felony therein or shall be found by night in the possession, without lawful excuse, of any housebreaking implement; or with his face blackened or disguised, with intent to commit any felony or shall be found by night in any building, with intent to commit a felony therein :-shall be guilty of a misdemeanor, punishable with penal servitude for three years, or imprisonment (with or without hard labour) not exceeding two years: and, in case of a second conviction, or if convicted after a previous conviction for felony, is liable either to such imprisonment, or to penal servitude to the extent of ten years (n). burglary, were also made by 7 & 8 Oldham, 21 L. J. (M. C.) 134; R. v. Bailey, 1 Dearsley's C. C. R. 249. By stat. 5 Geo. 4, c. 33, s. 4, it is also provided, that persons in possession of housebreaking implements with intent to break into a house, shall be deemed rogues and vagabonds, and punished accordingly. III. Sacrilege and housebreaking are offences which are now regulated by 24 & 25 Vict. c. 96,-by which it is provided, that the same penal consequences as are provided by that Act with respect to burglary (o), shall attach to whomsoever shall break and enter any church, chapel, meeting-house or other place of divine worship, and commit any felony therein,-or, being in such place, shall commit any felony therein, and break out of the same (p). This constitutes the crime of sacrilege, and is breaking into the House of God. It is consequently more penal than to break into other buildings; for where the breaking and entry is into or out of any dwelling-house, school-house, shop, warehouse or counting-house,-or into or out of any building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof (g),— the extreme limit of the term of penal servitude which may be inflicted is fourteen years, instead of for life (r). Moreover it is also a felony, and punishable either by imprisonment as in the previous cases, or by penal servitude for seven or not less than three years, to break and enter any dwelling-house, church, chapel, meeting-house or other place of divine worship, or any building within the curtilage, or any school-house, shop, warehouse or counting-house, with intent to commit any felony therein, although such felony shall not in fact have been effected (s). Having now considered offences against the habitations of individuals, we proceed, in the second place, to consider offences in respect of property in general. (o) Vide sup. p. 194. (p) 24 & 25 Vict. c. 96, ss. 50, 52. (4) No building, although within the curtilage of a dwelling house and occupied therewith, is to be deemed part thereof for any of the purposes of the 24 & 25 Vict. c. 96, unless there be a communication either immediate or by means of a covered and enclosed passage (sect. 53). (r) 24 & 25 Vict. c. 96, ss. 55,56. (s) Sect. 57. See The Queen v. McPherson, 26 L. J. (N. S.) M. C. 134. By 14 & 15 Vict. c. 100, s. 9, a verdict of guilty of an attempt to commit felony may be given on an indictment charging the actual commission of a felony. I. Larceny, or theft (by contraction for latrociny, latrocinium), is the unlawful taking and carrying away of things personal, with intent to deprive the right owner of the same (q); and it is either simple, or accompanied with circumstances of aggravation (r). The offence of simple larceny, or plain theft, [certainly commenced, then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be in common, is a question that may be solved with very little difficulty. The disturbance of any individual in the occupation of what he has seized to his present use, seems to be the only offence But unquestionably, of this kind incident to such a state. in social communities, when property is established, any violation of that property is subject to be punished by the laws of society, though how far that punishment shall extend is matter of considerable doubt.] At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition. In the first place, it must be an unlawful taking, which implies that the goods must pass from the possession of the right owner (s), and without his consent (t): and therefore where there is no change of possession, or a change of it by consent; or a change from the possession of a person without title, to that of the right owner(u); -there can, in any of those cases, be no larceny. And, as the taking must be without the consent of the owner, so in general [no delivery of the goods from the owner (9) The definition of Blackstone (vol. iv. p. 229) is, "the felonious taking and carrying away of the "personal goods of another." But this leaves it to be inquired, what kind of taking and carrying away is considered as felonious. (r) Larceny, accompanied with circumstances of aggravation, is described as being compound, mixed or complicated, as to which vide post, p. 207. (s) 1 Hale, P. C. 513. (t) 4 Bl. Com. 230. owner, (u) But if a person has temporary title against the permanent the latter may be guilty of larceny in taking them. R. v. Wilkinson, R. & R. C. C. 470; 4 Bl. Com. 231. |