gates or walls of a town in the night;(w) though that, perhaps, Sir Edward Coko would have called the mansion-house of the garrison or corporation. Spelman *225] defines burglary to be "nocturna diruptio alicujus *habitaculi, vel ecclesiæ, etiam murorum portarumve burgi, ad feloniam perpetrandam." And there

(*) Spelm. Gloss. tit. Burglary. 1 Hawk. P. C. 103.

of his family, slept in the house, it is not his dwelling-house so as to be the subject of burglary. Rex vs. Martin, R. & R. C. C. 108. And see Lyon's case, Leach, 169. Thompson's case, id. 893. Where a servant has part of a house for his occupation, and the rest is reserved by the proprietor for other purposes, the part reserved cannot be deemed part of the servant's dwelling-house; and it will be the same if any other person has part of the house and the rest is reserved. Rex vs. Wilson, R. & R. Č. C. 115. Where a servant stipulates upon hire for the use of certain rooms in his master's premises for himself and family, the premises may be described as the master's dwelling-house, although the servant is the only person who inhabits them; for he shall be considered as living there as servant, not as holding as tenant. Rex vs. Stock, id. 185. Where a shop was rented with some of the apartments of a house, it was held that the shop was still part of the dwell ing-house, and that burglary might be committed in it, as the house of the landlord. Gibson's case, Leach, 287. Where it must be laid in the indictment to be the dwellinghouse of the landlord, if he break open the apartments of his lodgers and steal their goods, it is not burglary; for a man cannot be guilty of burglary in his own house. Kel. 84.

With respect to the new provisions contained in ss. 13 & 14 of the new statute, it would seem that any building which before the passing of this statute would have been the subject of burglary, by reason of its being within the curtilage, may now be the subject of an indictment under s. 14. The main question in such cases will be, what shall be considered as being within the curtilage, which, in the Termes de la Ley, is defined to be a garden-yard, field, or piece of void ground, lying near, and belonging to, the messuage. Such garden, &c. must be connected with the messuage by one uninterrupted fence or enclosure of some kind; and perhaps such fence may more properly be termed the cur tilage than the ground lying within it. An indictment under the new section must aver that the building was within the curtilage of the prosecutor's dwelling-house, and that it was occupied therewith by the prosecutor; but it would seem that it need not aver that the building was one in which burglary could not be committed. See Rex vs. Robinson, R. & R. C. Č. 321. The other clauses of this statute, namely, s. 10, as to sacrilege, or burglary and stealing in a church or chapel; s. 12, as to housebreaking and stealing in a house; and s. 15, as to robbery in a shop, will be more properly the subjects of considera tion and exposition in the succeeding chapter, 17, to which the reader is referred.

As to the residence: from all the cases, it appears that it must be a place of actual resi dence. Thus, a house under repair, in which no one lives, though the owner's property is deposited there, is not a place in which burglary can be committed; for it cannot be deemed his dwelling-house until he has taken possession and begun to inhabit it. 1 Leach, 185. Nor will it make any difference if one of the workmen engaged in the repairs sleep there in order to protect it. 1 Leach, 186, in notis. Nor, though the house is ready for the reception of the owner, and he has sent his property into it preparatory to his own removal, will it become for this purpose his mansion. 2 Leach, 771. And where the owner has never, by himself or by any of his family, slept in the house, it is not his dwelling-house so as to make the breaking thereof burglary, though he has used it for his meals and all the purposes of his business. Russ. & Ry. C. C. 138. So, if the landlord of a house purchase the furniture of his out-going tenant, and procure à servant to sleep there in order to guard it, but without any intention of making it his own resi. dence, a breaking into the house will not amount to burglary. 2 Leach, 876. But if the agent of a public company reside at a warehouse belonging to his employers, this crime may be committed by breaking it, and he may be considered as the owner. 2 Leach, 931. And it seems that if a man die in his house, and his executors put servants in it and keep them there at board-wages, burglary may be committed in breaking it, and it may be laid to be the executors' property. 2 East, P. C. 499.

It seems quite settled, as above observed, that the proprietor of the house need not be actually within it at the time the oflence is committed, provided it is one of his regular places of abode. For if he leaves it animo revertendi, though no person resides there in his absence, it will still be his mansion. As if a man has a house in town and another in the country, and goes to the latter in the summer, the nocturnal breaking into either with a felonious design will be burglarious. Fost. 77. And though a man leaves his house and never means to live in it again, yet if he uses part of it as a shop, and lets a servant and his family live and sleep in another part of it for fear the place should be robbed, and lets the rest to lodgers, the habitation by his servant and family will be a Babitation by him, and the shop may still be considered as part of his dwelling-house.

fore we may safely conclude that the requisite of its being domus mansionalis is only in the burglary of a private house, which is the most frequent, and in which it is indispensably necessary, to form its guilt, that it must be in a mansion or dwelling-house. For no distant barn, warehouse, or the like are under the same privileges, nor looked upon as a man's castle of defence; nor is a breaking open of houses wherein no man resides, and which therefore for the time-being are not mansion-houses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath only left for a short season, animo revertendi, is the bject of burglary, though no one be in it at the time of the fact committed.(x) And if the barn, stable, or warehouse be parcel of the mansion-house, and within the same common fence,(y) though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or home-stall.(2) A chamber in a college or an inn of court, where each inhabitant hath a distinct property, is, to all other purposes as well as this, the mansion-house of the owner.(a) So also is a room or lodging in any private house the mansion for the time-being of the lodger, if the owner doth not himself dwell in the house, or if he and the lodger enter by different outward doors. But if the owner himself lies in the house, and hath but one outward door, at which he and his lodgers enter, such lodgers seem only to be inmates and all their apartments to be parcel of the one dwelling-house of the owner.(b) Thus, too, the house of a corporation inhabited in separate apartments by the officers of the body corporate is the mansionhouse of the corporation, and not of the respective officers. (c) But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie there, it is no dwelling-house, nor can burglary be committed therein, for by the lease *it is severed from the rest of the house, and therefore is not the dwell[*226 ing-house of him who occupies the other part; neither can I be said to dwell therein when I never lie there.(d) Neither can burglary be committed in a tent or booth erected in a market or fair, though the owner may lodge therein; (e) for the law regards thus highly nothing but permanent edifices; a house or church, the wall or gate of a town; and though it may be the choice of the owner to lodge in so fragile a tenement, yet his lodging there no more makes it burglary to break it open than it would be to uncover a tilted wagon in the same circumstances.

3. As to the manner of committing burglary: there must be both a breaking and an entry to complete it. But they need not be both done at once; for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars.(f) There must in general be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass,) but a substantial and forcible irruption. As at least by breaking or taking out the glass of, or otherwise opening, a window; picking a lock or opening it with a key; nay, by lifting up the latch of a door,

()1 Hal. P. C. 566. Fost. 77.

(King vs. Garland, P. 16 Geo. III. by all the judges.

1 Hal. P. C. 558. 1 Hawk. P. C. 104.

1 Hal. P. C. 556.

Kelw. 84. 1 Hal. P. C. 556.

() Fost. 38, 39.
(d) 1 Hal. P. C. 558.
() 1 Hawk. P. C. 104.
()1 Hal. P. C. 553.

1 Burn, J. 24th ed. 503. Russ. & Ry. C. C. 442, S. C. But in an indictment for larceny from a dwelling-house, where the prosecutor left his house without any intention of living in it again, and intending to use it as a warehouse only, though he had persons (not of his family) to sleep in it to guard the property, it was held it could not be considered the prosecutor's dwelling-house to support the charge. Russ. & Ry. C. C. 187. And if the occupier of a house removes from it with his whole family and takes away so much of his goods as to leave nothing fit for the accommodation of inmates, and has no settled idea of returning to it, but rather intends to let it, the offence will be merely larceny. Fost. 76. And the inere casual use of a tenement will not suffice; and therefore the circumstance of a servant sleeping in a barn, or porter in a warehouse, for particular and temporary purposes, will not so operate as to make a violent entry in the night, in order to steal, a burglary. 1 Hale, 557, 558.-CHITTY.

10

or unloosing any other fastening which the owner has provided.' But if a person leaves his doors or windows open, it is his own folly and negligence, and if a man enters therein it is no burglary; yet, if he afterwards unlocks an inner or chamber door, it is so.(g) But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit.(h) So, also, to knock at the door, and upon opening it to rush in with a felonious intent; or, under pretence of 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 beer. *227] 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.(i) 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; (k) 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 a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries.()" The entry may be before the breaking, as well as after:

(Ø) 1 Hal. P. C. 553.

(A) 1 Hawk. P. C. 102. 1 Hal. P. C. 552.
() 1 Hawk. P. C. 102.

(*) Stra. 881. 1 Hal. P. C. 553. 1 Hawk. P. C. 103.
(3) 1 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108.

So to push open massive doors which shut by their own weight is burglarious, though there is no actual fastening. 2 East, P. C. 487. Pulling down the sash of a window is a breaking, though it has no fastening and is only kept in its place by the pulley-weight: it is equally a breaking although there is an outer shutter which is not put to. Russ. & Ry. C. C. 451. And where a window opens upon hinges, and is fastened by a wedge, so that pushing against it will open it, forcing it open by pushing against it is sufficient to constitute a breaking. Russ. & Ry. C. C. 355. But where the prisoner broke out of a cellar by lifting up a heavy flap by which the cellar was closed on the outside next the street, (the flap was not bolted, but it had bolts,) six of the learned judges were of opinion that there was a sufficient breaking to constitute burglary; the remaining six were of a contrary opinion. Russ. & Ry. C. Č. 157. And it is to be observed that even when the first entry is a mere trespass, being as per janua aperta, if the thief afterwards breaks open any inner room, he will be guilty of burglary, (1 Hale, 553;) and this may be done by a servant who sleeps in an adjacent room unlatching his master's door and entering his apartment with intent to kill him. 1 Hale, 554. But lord Hale doubts whether a guest at an inn is guilty of burglary by rising in the night, opening his own door, and stealing goods from other rooms. 1 Hale, 554. And it seems certain that breaking open a chest or trunk is not in itself burglarious, (Fost. 108, 109;) and, according to the better opinion, the same principle applies to cupboards, presses, and other fixtures, which, though attached to the freehold, are intended only the better to supply the place of movable depositories. Fost. 109.-CHITTY.

o It will be burglary to unlatch an inner door with a felonious intent; and whatever would be a breaking of an outer door will also be a breaking of an inner door to constitute burglary. See 2 East, P. C. 488.

But it does not seem to be a burglary to break the doors of cupboards, presses, and closets. Ibid.-CHITTY.

"So if the prisoner breaks open a shop-window and with his hand takes out goods, the offence is complete. Fost. 107. Russ. & Ry. C. C. 499, S. P. Introducing the hand between the glass of an outer window and an inner shutter is sufficient entry to constitute burglary. Russ. & Ry. C. C. 341. And where several having broken open a house, and, attempting to enter, are opposed by the owner, and in making a pass at him the hand of one of the party is within the threshold, he will be guilty of burglary. 1 Hale, 553. If, however, an instrument has been thrust into the window, not for the purpose of taking out property, but only calculated to form the aperture, this will not be regarded as an entry, (1 Leach, 406;) or if a house be broken open, and the owner, through the fear occasioned by the circumstance, throw out his money, the burglary will not be completed. 1 Hale, 555. It seems doubtful whether shooting through a window is sufficient by the entry of the shot discharged; but it seems the better opinion that it is, as in this Case a felony by killing is as much attempted as in the introduction of an instrument ■

for, by statute 12 Anne, c. 7, if a person enters into the dwelling-house of another without breaking in, either by day or by night, with intent to commit felony, or being in such a house shall commit any felony, and shall in the night break out of the same, this is declared to be burglary, there having before been different opinions concerning it, lord Bacon(m) holding the affirmative and Sir Matthew Hale(n) the negative. 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 com. plete the burglary."

4. As to the intent; it is clear that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. 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 [*228 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. (0)

Thus much for the nature of burglary, which is a felony at common law but within the benefit of clergy. The statutes, however, of 1 Edw. VI. c. 12, and 18 Eliz. c. 7, take away clergy from the principals, and that of 3 & 4 W. and M. c. 9, from all abettors and accessories before the fact.(p) And, in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime.(q)"

(-) Elm. 65.

() 1 Hal. P. C. 554.

() 1 Hawk. P. C. 105.

(P) Burglary in any house belonging to the Plate-Glass

Company, with intent to steal the stock or utensils, is, by
stat. 13 Geo. III. c. 38, declared to be single felony, and
punished with transportation for seven years.
(9) Pott. Antiq. b. i. c. 26.

felony by stealing is attempted. 1 Hale, 555. Hawk. b. i. c. 38, s. 7. See 4 Camp. 220. 1 Stark. 58.-CHITTY.

12 The act now in force is 7 & 8 Geo. IV. c. 27.-CHITTY.

13 But if a servant intrusted by his master to sell goods receives money to his use, con ceals it in the house instead of paying it over, and, after his dismissal, breaks the house and steals it, the entry is not burglarious, because there was no felony in the original taking. 1 Show. 53. And even where prisoners were proved to have broken open a house in the night-time, to recover teas seized for want of a legal permit for the use of the person from whom they were taken, an indictment for burglary with intent to steal was holden not to be supported. 2 East, P. C. 510.-CHITTY.

14 The punishment of this crime now varies according to the circumstances under which it is committed, it being enacted, by stat. 1 Vict. c. 86, s. 2, that whoever shall bur glariously break and enter into any dwelling-house, and shall assault with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike such person, shall be guilty of felony punishable with death; but, by s. 3, the simple crime of burglary is punishable only with transportation for life or for not less than ten years, or imprisonment for three years,-and now penal servitude may be substituted. And now, further, by stat. 14 & 15 Vict. c. 19, ss. 1, 2, any person found by night armed with any dangerous weapon, with intent to enter any dwelling and to commit felony therein, or found in the possession, without lawful excuse, of housebreaking instruments, or with his face black. ened or disguised, or found by night in any building with intent to commit any felony, shall be guilty of a misdemeanour, punishable with imprisonment, with or without hard labour, not exceeding three years,--and now with penal servitude. STEWART. 487

CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

*THE next and last species of offences against private subjects are *229] such as more immediately affect their property. Of which there are two which are attended with a breach of the peace; larceny and malicious mischief; and one that is equally injurious to the rights of property, but attended with no act of violence, which is the crime of forgery. Of these three in their order.

I. Larceny, or theft, by contraction for latrociny, latrocinium, is distin guished by the law into two sorts: the one called simple larceny, or plain thef unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person.1

And, first, of simple larceny, which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larceny in general, and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny, then, is "the felonious taking and carrying away of the per*230] sonal goods of another." This *offence 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 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 of this kind incident to such a state. But, unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen, (a) 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.

(a) See book ii. p. 8, &c.

By stat. 7 & 8 Geo. IV. c. 29, s. 2, it is enacted "that the distinction between grand and petit larceny shall be abolished, and every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the commencement of this act; and every court whose power as to the trial of larceny was before the commencement of this act limited to petty larceny shall have power to try every case of larceny the punishment of which cannot exceed the punishment hereinafter mentioned for simple larceny, and also to try all accessories to such larceny."

By sect. 3, every person convicted of simple larceny, or of any felony thereby made punishable like simple larceny, shall (except in the cases thereinafter otherwise provided for) be liable to transportation for seven years, or imprisonment not exceeding two years, and, if a male, to one, two, or three public whippings; and, by sect. 4, where the sentence is imprisonment, the courts have a discretionary power to award hard labour or solitary confinement in addition. This observation has been introduced here that the reader may observe how far the present provisions of the law vary from the text in his progress through this important chapter, and to remind him that the subtle distinctions between grand and petty larceny are now entirely abolished.

By sect. 61, in every felony punishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree; and every accessory after the fact (except only a receiver of stolen property) shall on conviction be liable to imprisonment for any term not exceeding two years; and every person aiding, abetting, counsel ling, or procuring the commission of any misdemeanour punishable under this act, shall be liable to be indicted and punished as a principal offender. As to the venue in cases of larceny see 7 Geo. IV. c. 1, ss. 12, 13.-CHITTY.