in the year of our Lord at B. aforesaid, in the county aforesaid, did counterfeit a certain piece of silver coin, current within this state, to wit, the commonwealth aforesaid, by the laws and usages thereof, called a dollar; against, &c. (Conclude as in book 1, chap 3.)

(365) Uttering and passing counterfeit coin. Rev. Sts. of Mass. ch. 127, § 16. That C. D., late of, etc., on the first day of June in the year of our Lord at B. in the County of S., a certain piece of counterfeit coin, counterfeited in the likeness and similitude of the good and legal silver coin current within this state, to wit, the commonwealth aforesaid, by the laws and usages thereof, called a dollar, did utter and pass as true to one E. F., the said C. D. then and there(d) well knowing the same to be false and counterfeit ; against, &c. (Conclude as in book 1, chap. 3.)

(366) Coining, &c., under the North Carolina Statute. (0)

That the defendant, on, &c., with force and arms, in the county aforesaid, one pair of dies, upon which then and there were made and impressed the likeness, similitude, figure and resemblance of the sides of a lawful Spanish milled dollar, without any lawful authority, then and there feloniously had in possession, &c., for the purpose of then and there making and counterfeiting money, in the likeness and similitude of Spanish milled silver dollars, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(d) An indictment which charged the defendant with uttering a counterfeit halfcrown to M. A. W., "knowing the same to be false and counterfeit," omitting the words "then and there," was held sufficient. Regina v. Page, 2 Moody, C. C. 219.

(0) State v. Haddock, 2 Hawks 462. Taylor C. J.: "It does not admit of any reasonable doubt, that a pair of dies is an instrument or instruments, within the 4th sect. of the act of 1811, c. 814, upon which the first count is framed; and being more generally used in coinage than any other instrument, is one upon which the act would be most likely to operate frequently. It may be said, that as the dies are described as having impressed upon them only the likeness, similitude, figure and resemblance of the sides of a Spanish milled dollar, and not the edges, that they cannot answer the purpose described in the act, of making a counterfeit similitude or likeness of a Spanish milled dollar. But it is for the jury to consider, whether the dies be calculated to impress the counterfeit similitude or likeness of a dollar; for these words in the act extend the offence beyond an exact imitation of the figures and marks of the coin. For if the instrument, in point of fact, will impose on the world, in general it is sufficient whether the imitation be exact or not. And this is the construction, upon those highly penal acts, relative to the coin, in England. Thus, having knowingly in possession a puncheon for the purpose of coining, is within the stat. of 8 and 9 Wm. III., though that alone, without the counter puncheon, will not make the figure; and though such puncheon had not the letters, yet it was held sufficiently described in the indictment as a puncheon, which would impress the resemblance of the head side of a shilling; 1 East P. C. 171. But if the parts of this indictment which are employed in a description of the dies were altogether omitted, the charge would be within the act, for it would then read, that the defendants had in their possession a pair of dies, for the purpose of making counterfeit dollars, which is the crime in substance created by the act. As I do not perceive any ground for any other objection arising from the record, the case having been submitted without argument, my opinion is, that the reasons in arrest be overruled." And in this opinion the rest of the court concurred. 246

CHAPTER II.

BURGLARY. (aa)

(367) General frame of indictment for burglary and larceny, at common law. (368) Burglary and larceny at common law. Another form.

(369)

Second count. Receiving stolen goods.

(370) Burglary at common law with no larceny.

(371) Breaking into dwelling-house, not being armed, with intent to commit larceny, under Massachusetts statute.

(372) General frame of indictment in New York.

(aa) See the subject generally treated in Wh. C. L. as follows:

A. STATUTES.

United States.

Burglary in vessel, boat or raft, § 1511.

Massachusetts.

Burglary in dwelling-house in night-time, &c., and armed with dangerous weapon, § 1512.

Same not armed with dangerous weapon, § 1513.

New York.

Burglary, § 1514.

In the first degree, § 1515.
In the second degree, § 1516.
In the third degree, § 1517.
Punishment, § 1518.

Pennsylvania.

Burglary in dwelling-house, § 1519.

In State-house, church, academy, or library, § 1520.

Punishment, § 1521.

Bail, § 1522.

Restitution of goods, § 1523.

Virginia.

Ohio.

Burglary, punishment and definition, § 1524.

Entering, without breaking, dwelling-house, office, ship, banking-house, &c., ship, or vessel, § 1525.

Punishment, § 1526.

Burglary in dwelling-house, kitchen, church, school, &c., § 1527.

Entering in day or night, dwelling, &c., with intent to commit certain offences, § 1528.

Breaking open houses in the night and committing or attempting to commit personal violence, 1529.

Committing like offence in the day, § 1530.

B. BURGLARY AT COMMON LAW.

I. Breaking, § 1532.

1st. Entering door or window partially open, § 1532.

2d. Where the place broken into is not part of the dwelling-house, § 1533.

3d. Breaking through outer covering, § 1535.

4th. Breaking on the inside, § 1536.

5th. Breaking chest or trunk, § 1537.

6th. Manual violence not necessary, § 1538.

7th. Entrance by trick, § 1539.

8th. Conspiracy with servant, § 1540.

9th. Breaking by pulling, pushing or lifting, § 1541.

10th. Entrance by chimney, § 1543.

11th. Where there is an aperture already open, § 1544.

12th. Entering by the master's connivance, § 1545.

13th. Breaking out of a house, § 1546.

14th. Evidence of breaking, § 1547.

15th. Terror, without breaking, producing surrender of goods, § 1548.

(373) Burglary, by breaking out of a house.

(374) Burglary and larceny and assault, with intent to murder.
(375) Burglary, with violence.

(376) Burglary and rape.

(377) Burglary, with intent to ravish: with a count for burglary with violence, under st. 7 Wm. 4 and 1 Vic., ch. 86, § 2.

(378) Burglary and larceny, at common law, by breaking into a parish church. (379) Burglary and larceny. Breaking and entering a store and stealing goods, under Ohio stat.

(330) Burglary and larceny. Breaking and entering a meeting-house, and stealing a communion cup and chalice, under Ohio statute.

(381) Burglary. Breaking and entering a storehouse with intent to steal, under Ohio statute.

(382) Burglary. Breaking and entering a shop with intent to steal, under Ohio statute.

(383) Burglary. Breaking and entering a dwelling-house with intent to steal, under Ohio statute.

(384) Breaking and entering a mansion-house in the day time, and attempting to commit personal violence, under Ohio statute.

(385) Breaking and entering a mansion-house in the night season, and committing personal violence, under Ohio statute.

(386) Against a person for attempting to break and enter a dwelling-house at
night, at common law.

(387) Breaking a storehouse with intent to enter and steal, at common law.
(388) Being found by night armed, with intent to break into a dwelling-house,
and commit a felony therein.

(367) General frame of indictment for burglary and larceny at common law. (a)

That A. B., late of, &c., in, &c., laborer, on, &c., about the hour of one of the night, (b) of the same day, with force and arms, at the parish(c) aforesaid, in the county aforesaid, the dwelling-house(d) of one S. D.(e) there situate, feloniously(ƒ) and burglariously (ff) did break and enter, (g) with

II. Entry, § 1549.

(Analysis of Burglary in Wh. C. L.)

III. Dwelling-house, § 1555.
IV. Ownership, § 1577.
V. Time, § 1592.

VI. Intention, § 1598.

VII. Indictment, § 1607.

(a) This form is drawn from Stark. C. P. 435.

(b) It is necessary to allege a particular hour; State v. G. S., 1 Tyler 295; and to state it to be in the night of the preceding day, though after twelve o'clock. If the noctanter be omitted in the common form averring larceny, the indictment will be turned into one for larceny; Thompson v. Com., 4 Leigh 652. It is certainly bad to aver the offence to have been committed "between the hours of twelve at night and nine in the next morning;" State v. Mather, Chip. 32; though the day and hour themselves are not material to be proved as laid; see Wh. C. L. § 270.

(c) The place should be correctly stated.

(d) See on this point Wh. C. L. § 1577, 1607. The house must be described as the dwelling-house of the real tenant; Stark. C. P. 79; and this is the proper description, though part only of the house be separately occupied. The particular interest of the alleged owner is insufficient. It is enough if the house be his; People v. Van Blarcum, 2 Johns. 105. Burglary may also be committed in a church or chapel. If the offence be committed in an out-house within the curtilage, it should be laid to have been committed in the dwelling-house or in a stable, &c., being part of the dwelling-house; Dobbs' case, East P. C. 513; Garland's case, ib. 493.

(e) It should be alleged or implied that some one resided in the house; Forsyth v. State, 6 Ham. 22. If a mere intent to steal be alleged, the ownership should still be correctly averred; Stark. C. P. 215; Wh. C. L. § 1607.

(f) These words are essential; Lewis' C. L. 139; Hale's P. C. (by Stokes & Ing.) 549; Wh. C. L. § 400; and so are the words "dwelling-house” and “in the night." The means of breaking and entering are immaterial.

(ff) This is necessary; Wh. C. L. § 402.

(9) The intention is included in the words "feloniously and burglariously," &c.,

intent() the goods and chattels of the said C. D. in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away; and one gold watch of the value of thirty dollars, (i) of the goods and chattels of the said C. D.,(j) in the said dwelling-house then and there being found, then and there feloniously and burglariously did steal, take and carry away, against, &c. (Conclude as in book 1, chap. 3.)

Another form. (k)

(368) Burglary and larceny at common law. That J. B., late, &c., on, &c., about the hour of eleven in the night of the same day, at, &c., the dwelling-house of I. H. Jr., there situate, feloniously and burglariously did break and enter (and the goods and chattels, moneys and property of the said I. H. Jr., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away), and then and there in the said dwelling-house, &c., twenty-eight yards of Scotch ingrain carpet, of dark colors, of the value of thirty dollars, &c., of the goods and chattels, moneys and property of the said I. H. Jr., in the said dwelling house then and there being found, then and there feloniously and burglariously did steal, take and carry away, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(369) Second count. Receiving stolen goods.

That the said J. B., afterwards, to wit, on, &c., at, &c., the goods and chattels, moneys and property aforesaid, by some ill-disposed person to the jurors aforesaid yet unknown, then lately before feloniously and burglariously stolen, taken and carried away, unlawfully, unjustly and for the sake of wicked gain, did receive and have (the said J. B. then and there well knowing the goods and chattels, moneys and property last mentioned to have been feloniously and burglariously stolen, taken and carried away), contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)(kk)

but it must be further shown that the breaking and entry was done to commit a felony, which felony should be specified. But an averment that he did then and there commit a specific felony is a sufficient averment of the intention; Com. v. Brown, 3 Rawle 207. It is, however, prudent in all cases specially to aver the intention, since if the proof of the commission of the felony fail, the defendant must otherwise be acquitted; Wh. C. L. 1607-20. A statutable felony will support the indictment; 1 Hawk. c. 38, s. 38; R. v. Knight and Roffrey, East P. C. 510.

(k) Unless the commission of a felony be actually laid, this is essential; R. v. Lyon, Leach 221, 3d ed.; Wh. C. L. 1607–20.

(i) Describe the character and value of each article according to the fact, as in larceny; see Wh. C. L. § 353-63.

(j) The ownership must be correctly stated; Wh. C. L. § 1577, 1607-20; Stark. C. P. 210, 215.

(k) Com. v. Brown, 3 Rawle 207. Sentence was passed on this indictment in the Supreme Court. "The motion in arrest of judgment," said Gibson C. J., "is founded on the absence of a direct averment that the breaking and entering was with a felonious intent, and although a larceny is charged to have been committed afterwards, it is argued with much theoretic plausibility, that this may have been in pursuance of a design subsequently hatched. It is certain that all material facts must be positively charged instead of being collected by inferences; but in this particular this indictment is found to be in strict accordance with the most approved precedents (Cro. Cir. Comp. 203), and for that reason this motion, also, must be overruled." In Cro. C. C. 203, the passage in brackets in the text, which is plainly surplusage, is omitted; see also 3 Chit. C. L. 203. The disadvantage of this form is that in case the stealing is left unproved, the defendant must be acquitted in toto; 1 Leach 708; 3 Chit. C. L. 1114. On this account Ld. Hale recommends the form first given, on which the defendant may be convicted of either burglary or larceny, or both; 1 Hale P. C. (ed. Stokes & Ing.) 559.

(kk) As to the joinder of these counts, see Wh. C. L. § 414–27.

(370) Burglary at common law with no larceny.

That A. B., late, &c., on, &c., about the hour of eleven in the night of the same day, at, &c., the dwelling-house of one C. D., there situate, feloniously and burglariously did break and enter, with intent the goods and chattels, moneys and property of the said C. D., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(371) Breaking into dwelling-house, not being armed, with intent to commit larceny, under Massachusetts statute.

That J. T., &c., on, &c., at, &c., in the night-time of said day, with intent to commit the crime of larceny, did break and enter the dwelling-house of one C. E., there situate, said J. T. not being armed, nor arming himself in said house with a dangerous weapon, nor making any assault upon any person then being lawfully therein, against, &c., and contrary, &c. (n) (Conclude as in book 1, chap. 3.)

(372) General frame of indictment in New York.

That A. B., late of, &c., on, &c., with force and arms about the hour of eleven, in the night of the same day, at, &c. (setting forth the object of the burglary), of one C. D., there situate, feloniously and burglariously did break and enter, &c., with intent the goods and chattels of the said C. D., in the said then and there being, then and there feloniously and burglariously to steal, take and carry away, and (setting forth the articles taken), of the goods, chattels and property of the said C. D., in the said then and there being, then and there feloniously and burglariously did steal, take and carry away, to the great damage of the said C. D., against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(373) Burglary by breaking out of a house. (a)

The jurors, &c., upon their oath present, that C. D., late of B., in the County of S., laborer, on the first day of June in the year of our Lord about the hour of eleven of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, being in the dwellinghouse of E. F., there situate, one watch, of the value of one hundred dollars, six tablespoons, of the value of four dollars each, and twelve teaspoons, of the value of two dollars each, of the goods and chattels of one J. N., in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry away. And that the said C. D. being so as aforesaid, in the said dwelling-house, and having so committed the felony aforesaid, in manner and form aforesaid, therein afterwards, to wit, about the hour of twelve of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, feloniously and burglariously did break out of the same dwelling-house. And the same goods and chattels then and there feloniously and burglariously did steal, take, and carry away, contrary to the form of the statute, &c., and against the peace, &c.

(n) This indictment appears in Tully v. Com., 4 Met. 357, where the only error assigned by the learned and acute counsel who conducted the offence, was that the word "burglariously" was omitted. This the court, however, deemed unnecessary.

(a) Wilmot, Law of Burg.