Entry. Breaking out. Attempt. The intent to commit a felony. for servants to conspire with a robber, and let him into. the house at night, is a burglary in both. To obtain admission to a house by coming down the chimney is sufficient, for the chimney is as much closed as the nature of things will admit; but getting through a hole in the roof left to admit light is not (o). As to the entry.-The least degree of entry with any part of the body, or with any instrument held in the hand, will suffice; for example, stepping over the threshold, putting a finger or hook in at the open window in order to abstract goods. Though formerly there were doubts on the subject, it is now provided by statute that it is burglary for a person who has entered the dwelling-house of another with intent to commit a felony therein, or for a person who in such dwelling-house (e.g., a servant) has committed a felony therein, to break out (p). When the breaking with intent to commit a felony is proved, but there is no proof of entry, the jury may convict the prisoner of an attempt to commit burglary (g). iv. The Intent.-To constitute a burglary, there must be an intent to commit some felony in the dwellinghouse, otherwise the breaking and entry will only amount to a trespass (r). It must be either proved from evidence of the actual commission of the felony, or implied from some overt act if the felony is not actually carried out. For it is none the less burglary because the felony which is intended is not perpetrated. (o) R. v. Brice, R. & R. 450. Burglary is a felony, punishable by penal servitude Punishment. to the extent of life (s). Two or three crimes connected with the subject of burglary remain to be considered: dwelling-house Entering a dwelling-house in the night, with intent to Entering commit a felony-the offence differing from burglary at night with inasmuch as there is no breaking-is a felony punish- intent, &c. able by penal servitude to the extent of seven years (t). Being found by night armed with any dangerous or Armed at night with offensive weapon or instrument, with intent to break intent, &c. or enter into any dwelling-house, or other building whatsoever, and to commit a felony therein; (N.B. An intent either to break or to enter will suffice, also that the offence is not confined to dwelling-houses. Proof must be given of an intent to break into or enter a particular building; proof of a general intent will not suffice) (u); housebreaking or, being found by night in possession, without law- Possession of ful excuse, of any housebreaking implement, or being implement by found with the face blackened or otherwise disfigured, night. with intent to commit a felony; dwelling or, being found by night in any dwelling-house or Being in other building, with intent to commit a felony therein, house, &c. is a misdemeanor, punishable by penal servitude to the extent of five years (x). If any of the above misdemeanors be committed after a previous conviction for felony or after a previous conviction for one of such misdemeanors, the penal servitude is from five to ten years (y). (u) R. v. Jarrald, 32 L. J. (M.C.) 258. (x) 24 & 25 Vict. c. 96, s. 58. (y) Ibid. s. 59; 27 & 28 Vict. c. 47, s. 2; 42 & 43 Vict. c. 55, 8. I. Housebreak ing distin burglary. HOUSEBREAKING. The chief distinction between this crime and burglary guished from is that the former may be committed by day, the latter by night only. There is also a difference to be noticed as to the structure which may be the subject of the crimes. Housebreaking extends to school-houses, shops, warehouses, and counting-houses, as well as dwellinghouses, also any building within the curtilage of a dwelling-house and occupied therewith, but not being part thereof according to the provision of section 53, noticed above (2). Nature of the crime. Punishment. Breaking, &c., This crime consists in the breaking and entering any snch house with the intention of committing a crime therein, or in the case of one being in such house, committing a felony therein, and breaking out of the same. The breaking and entering will be proved as in burglary. The punishment for this felony varies according to whether the projected felony, the object of the breaking, is actually committed, or there is only an intention; in the former case the extent of the penal servitude being fourteen years, in the latter seven years (a). On an indictment for the former, the prisoner may be convicted of the latter. Also, if the indictment charges the breaking and stealing, if the prosecution fail to prove the breaking, the prisoner may be convicted of larceny in a dwelling-house (b), or of simple larceny. Sacrilege. Breaking and entering a church, chapel, meetinghouse, or other place of divine worship, and committing a felony therein, or, if already therein, committing a felony and breaking out, is a felony, punishable by penal servitude to the extent of life (c). If the projected felony is not actually committed, but the intent to commit is proved, the limit of the penal servitude is seven years (d). The proof is generally the same as that in housebreaking. It seems that the articles stolen need not be such as are used for divine service (e). Larceny in a dwelling-house. dwelling This crime differs from housebreaking inasmuch as Larceny in a there need not be any breaking, nor any entry with a house." view to the commission of the larceny. As in burglary, the building must be proved to be a dwelling-house, or some building occupied therewith or communicating in the manner before described (ƒ). Stealing in such dwelling-house any chattel, money, Punishment. or valuable security to the value in the whole of £5 or more, is a felony, punishable by penal servitude to the extent of fourteen years (g). And although the value. does not amount to £5, the punishment is the same if the thief by any menace or threat puts any one in the dwelling-house in bodily fear (h). under the pro The goods must be under the protection of the Goods to be house, and not in the personal care of the owner. tection of the Thus to steal a sum of money from a person's pocket house. while he is in the house, is not within the statute, unless, indeed, the clothes containing such pocket had been put off, in which case they would be under the protection of the house (i). It was decided in the same case that it is a question for the court, and not for the jury, whether the goods are under the protection of the house or in the personal care of the owner (k). It appears now to be settled that the fact that the larceny was committed in the thief's own house does not take the case out of the statute (). RECAPITULATION. Inasmuch as there is great danger of confusion and considerable intricacy in the definitions, it will be well to recapitulate the distinctions between certain crimes. partaking of the general character of fraud. A few general remarks on the class as a whole will be added. Larceny and First, as to Larceny and Embezzlement. The gist of embezzlement. the latter offence is that, in the case of appropriation by a servant or clerk of money or chattels received by him. for his master or employer, such money or chattels are not at the time of appropriation in the actual or constructive possession of the master or employer; or, in other words, the prisoner intercepts the property on its way to the possession of the master or employer. more than one direction does this crime very closely border on larceny. Thus difficult points may arise on the questions-whether the appropriator were a servant; whether the master were in possession of the property, &c. Larceny and false pre tences. In Between Larceny and False Pretences the main distinction is, that in the former the property is not passed by the owner to the thief (and generally the possession is not intended to be passed); while in the (i) R. v. Thomas, Car. Sup. 295. (k) This seems to be another invasion of the province of the jury. (1) R. v. Bowden, 1 C. & K. 147. |