Penalty.

Breaking dwelling by day.

Breaking out of dwelling by day.

would be adjudged to be his also, and what difference is there when he is in the house." Hawkins P.C., ch. 38, secs. 8, 9; Cornwall's Case, 2 Strange 881. And by Code sec. 69 the party who does an act for the purpose of aiding another to commit the offence, is guilty of the offence itself.

There may also be a breaking in law where, in consequence of violence commenced or threatened, in order to obtain an entrance, the owner, either from apprehension of the force, or with a view more effectually to repel it, opens the door, through which the robber enters. 2 East P.C. 486; Hawkins, ch. 38, sec. 4. Although the door was literally opened by one of the family, yet if such opening proceeded from the intimidations of those who were without, and from the force which had been used, knocking at and breaking the windows, calling out and insisting upon the door being opened, and firing of guns; if under these circumstances the persons within were induced to open the door, it was as much a breaking by those who made use of such intimidations, to prevail upon them so to open it, as if they had actually burst the door open. Rex v. Swallow (1813), 1 Russell 792.

But if upon a bare assault upon a house, the owner fling out his money, it is no burglary. 1 Hawkins 38, sec. 3; though, if the money were taken up in the owner's presence, it would be robbery. 2 East P.C. 486; 1 Russell 793.

(b) Breaking out of dwelling house after committing indictable offence therein.]-In their Fifth Report the English Commissioners on Criminal Law made the following remarks on burglary, by breaking out of a dwelling house: "By the statute 12 of Queen Anne, statute 1, ch. 7 (now repealed by 7 and 8 of Geo. IV., ch. 27, and re-enacted by ch. 29 of the same statute), the crime of burglary was extended to the case of an offender, who, having committed a felony in a dwelling house, or having entered therein with intent to commit a felony, afterwards broke out of such dwelling house in the night time. This extension does not, we think, rest upon any just principle. After a felony has been committed within the dwelling house, the offence is not in reality aggravated by lifting the latch of the door, or the sash of a window, in the night time, in order to enable the offender to escape. A breaking out, indeed, may be an innocent act, as it may be committed by one desirous of retiring from the further prosecution of a crime; and the extension of the law of burglary to such a case is not warranted by the principles upon which the law is founded, inasmuch as a circumstance not essential to the guilt of the offender, or the mischief of the act. is made deeply essential to the crime. It is ineffectual, even with a view to the object proposed; the pretext for the conviction fails in the absence of a breaking out, which is a casual and uncertain circumstance."

By night.]—The expression "night" is declared by sec. 2(23) to mean the interval between 9 p.m. and 6 a.m.

(2) Having offensive weapon.]-See definition of the expression "offensive weapon" in sec. 2(24).

458. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who,

(a) breaks and enters any dwelling-house by day and commits any indictable offence therein; or,

(b) breaks out of any dwelling-house by day after having committed any indictable offence therein. 55-56 V., c. 29,

s. 411.

"Breaking and entering."]-See Code secs. 335 and 340, also note to sec. 457.

Housebreaking.]-The principal distinction between this offence, as declared in this and the following section, and the offence of burglary, is that housebreaking is usually applied to the offence committed by day and burglary to that committed by night. But if it be proved on an indictment for housebreaking that the offence was committed by night, i.e., between 9 p.m. and 6 a.m. (sec. 2 (23)) and that it is therefore burglary the defendant may notwithstanding be convicted of housebreaking. R. v. Robinson (1817), R. & R. 321.

to commit

459. Every one is guilty of an indictable offence and liable Breaking to seven years' imprisonment who, by day, breaks and enters with intent any dwelling-house with intent to commit any indictable offence offence. therein. 55-56 V., c. 29, s. 412.

“Breaking and entering."]—See Code secs. 335 and 340, also note to sec. 457.

and com

460. Every one is guilty of an indictable offence and liable Breaking to fourteen years' imprisonment who, either by day or night, shop, etc., breaks and enters and commits any indictable offence in a mitting inschool-house, shop, warehouse or counting-house, or any build- dictable ing within the curtilage of a dwelling-house, but not so connected therewith as to form part of it under the provisions herein before contained. 55-56 V., c. 29, s. 413.

Outbuildings connected with dwelling house.]-A building occupied with, and within the same curtilage with, any dwelling house shall be deemed to be part of the said dwelling house if there is between such building and dwelling house a communication, either immediate or by means of a covered and inclosed passage, leading from the one to the other, but not otherwise. Code sec. 339.

offence.

with intent.

461. Every one is guilty of an indictable offence and liable Breaking to seven years' imprisonment who, either by day or night, shop, etc., breaks and enters any of the buildings mentioned in the last preceding section with intent to commit any indictable offence therein. 55-56 V., c. 29, s. 414.

Shopbreaking.]-In an English case it has been held that the word "shop" implies a place where a retail trade is carried on. R. v. Chapman, 7 J.P. 132.

The present section includes not only breaking into a "shop" but into a warehouse, or into a counting-house, school-house, or any building within the curtilage of a dwelling house but not so connected therewith as to form part of it under sec. 339. Code sec. 460.

If a person, with intent to steal something out of a shop or store, opens a door leading into it by lifting the latch or turning the knob and then enters the store, although during business hours, for the purpose of carrying out such intention, he may be convicted of shopbreaking under sec. 461. R. v. Smith (1907), 17 Man. R. 282.

Being found

462. Every one is guilty of an indictable offence and liable in dwelling to seven years' imprisonment who unlawfully enters, or is in,

house at

night.

Penalty.

Armed with intent to

break by

day.

With intent

to break by night.

Penalty.

Having housebreaking instru

ments by night.

By day. Disguised by night.

Disguised by day.

any dwelling-house by night with intent to commit any indictable offence therein. 55-56 V., c. 29, s. 415.

Unlawful entry.]—On an indictment for being unlawfully in a dwelling house by night with intent to assault, a written verdict of "guilty" of being in the house unlawfully, also "guilty of assault," is a good verdict of guilt on the charge, as the assault necessarily includes the intent. To complete the offence of being unlawfully in a dwelling house with intent to assault, it is sufficient that the intent originated after the entry, and that the assault was threatened by the accused in his efforts to escape from the house after being discovered therein. Semble, the verdict as to intent while in the house is not affected by the circumstance that the same count of the indictment charged also the entering of the house with intent to make the assault. The King v. Higgins, 10 Can. Cr. Cas. 456, 38 N.S.R. 328.

463. Every one is guilty of an indictable offence and liable to seven years' imprisonment who is found,

(a) armed with any dangerous or offensive weapon or instrument by day, with intent to break or enter into any dwelling-house, and to commit any indictable offence therein;

or,

(b) armed as aforesaid by night, with intent to break into any building and to commit any indictable offence therein. 55-56 V., c. 29, s. 416.

Offensive weapon.]-See sec. 2(24).

By day.]-See sec. 2(23).

Dwelling house.]-See sec. 335.

By night.]-See sec. 2(23).

464. Every one is guilty of an indictable offence and liable to five years' imprisonment who is found,

(a) having in his possession by night, without lawful excuse, the proof of which shall lie upon him, any instrument of housebreaking; or,

(b) having in his possession by day any such instrument with intent to commit any indictable offence; or,

(c) having his face masked or blackened, or being otherwise disguised, by night, without lawful excuse, the proof whereof shall lie on him; or,

(d) having his face masked or blackened, or being otherwise disguised by day, with intent to commit any indictable offence. 55-56 V., c. 29, s. 417.

Having in his possession.]—Knowingly having in any place, whether belonging to or occupied by the offender or not, is included, and whether for the use or benefit of the offender or of another person. Section 5.

Instrument of housebreaking.]-Any instrument capable of being used as an implement of housebreaking and intended to be so used will be included. R. v. Oldham (1852), 2 Den. 472, 3 C. & K. 250, 21 L.J. (Eng.) 134. The possession of a crowbar or other implement of housebreaking by one of two persons acting in concert will be the possession of both. R. v. Thompson (1869), 11 Cox 362, 33 J.P. 791.

vious con

465. Every one who, after a previous conviction for any Punishment indictable offence, is convicted of an indictable offence specified after prein this Part for which the punishment on a first conviction is viction. less than fourteen years' imprisonment is liable to fourteen years' imprisonment. 55-56 V., c. 29, s. 418.

Indictment.]-In any indictment for any indictable offence, committed after a previous conviction or convictions for any indictable offence or offences or for any offence or offences (and for which a greater punishment may be inflicted on that account), it shall be sufficient, after charging the subsequent offence, to state that the offender was at a certain time and place, or at certain times and places, convicted of an indictable offence, or of an offence or offences, as the case may be, and to state the substance and effect only, omitting the formal part of the indictment and conviction, or of the summary conviction, as the case may be, for the previous offence, without otherwise describing the previous offence or offences. Section 851. Procedure where previous offence charged.]—See secs. 963, 964.

Punishment for second offence in cases not under Part VII.]-See Code secs. 1053, 1055.

Forgery and Preparation Therefor.

466. Forgery is the making of a false document, knowing Definition. it to be false, with the intention that it shall in any way be used or acted upon as genuine, to the prejudice of any one whether within Canada or not, or that some person should be induced by the belief that it is genuine, to do or refrain from doing anything, whether within Canada or not.

2. Making a false document includes altering a genuine Making false document in any material part, or making any material addi- document. tion to it or adding to it any false date, attestation, seal or other thing which is material, or making any material alteration in it, either by erasure, obliteration, removal or otherwise.

3. Forgery is complete as soon as the document is made When with such knowledge and intent as aforesaid, though the forgery offender may not have intended that any particular person complete. should use or act upon it as genuine, or be induced, by the belief that it is genuine, to do or refrain from doing anything.

False docu

4. Forgery is complete although the false document may be ment may be incomplete, or may not purport to be such a document as would incomplete. be binding in law, if it be so made and is such as to indicate that it was intended to be acted on as genuine. 55-56 V., c. 29, s. 422.

False document.]-A "false document" means: (1) a document, the whole or some material part of which purports to be made by or on behalf of any person who did not make or authorize the making thereof, or which, though made by, or by the authority of, the person who purports to make it, is falsely dated as to time or place of making, where either is material or (2) a document, the whole or some material part of which purports to be made by or on behalf of some person who did not in fact exist, or (3) a document which is made in the name of an existing person, either by that person or by his authority, with the fraudulent intention that the document should pass as being made by some person, real or fictitious, other than the person who makes or authorizes it. Code sec.

335.

To constitute a false document it is not necessary that the fraudulent intention should appear on the face of the document, but it may be proved by external evidence. Code sec. 338.

A promissory note was drawn up and signed on January 1st, 1896, payable "twelve months after date." The payee, who drew the note, used an old form with the figures "188-" printed in the place for the date. When drawing the note, the payee added the figure "6" thus making the date read January 1st, 1886, instead of 1896. Some time after the issue of the note, the payee discovered the mistake and corrected it by writing a figure "9" over the last "8," without asking or obtaining the consent of the makers. Held, that this was not a "material alteration" within the meaning of "The Bills of Exchange Act, 1890," sec. 63, but being only the correction of an error, making the contract appear what it was originally intended to be, did not invalidate the note. McLaren v. Miller, 36 Can. Law Jour. 680.

The uttering of a false letter of introduction the signature to which is forged, is an indictable offence under Code secs. 466 and 467, if the person uttering same knows it to be a false document, and to have been made with intent that it should be acted upon as genuine to the prejudice of any one. The first sub-section of Code sec. 466 extends the definition of forgery to cases not included in former statutory definitions in Canada of that term, and which would not be forgery at common law. Re Abeel, 8 Can. Cr. Cas. 189, 7 O.L.R. 327.

The officer of a company who fraudulently signs in the company's name a dividend check nominally in favour of a firm of which he is a member but really for his own benefit and appropriates the proceeds for his own use upon his own endorsation of the firm name, when neither he nor his firm have any claim to the dividends, may properly be charged either with embezzlement of the money or with theft of the check. The officer would be guilty of forgery in fraudulently signing the check really for his own purposes but purporting to be a dividend check and drawn upon an account kept with the company's bankers from which only dividend payments could properly be made. R. v. Rowe (1903), 8 Can. Cr. Cas. 28.

Where the prisoner was indicted for forging a note for $500, having changed a note of which he was the maker from $500 to $2,500, it was held to be a forgery of a note for $500, though the only fraud committed was on the endorser. R. v. McNevin, 2 R.L. (Que.) 711.