1

example, where the prisoner conveyed land to A. and subsequently granted a lease of the same land to his son without the consent or knowledge of A., fraudulently dating the lease earlier than the conveyance, he was held to be guilty of forgery. Again, if in signing his own name the accused, with intent to defraud, personates another man bearing the same name, his signature is a forgery.2

But a cheque signed per pro. by a person having authority so to sign cheques for specified purposes was held not to be a forgery within section 24 of the Forgery Act, 1861, although it was drawn for purposes outside and in fraud of the authority.3

"Where an intent to defraud or an intent to deceive is one of the constituent elements of an offence punishable under this Act," such intent must be alleged in the indictment. But it is not necessary to allege in the indictment or to prove at the trial an intent to defraud or deceive any particular person; and it shall be sufficient to prove that the defendant did the act charged with intent to defraud or to deceive, as the case may require." It is not necessary to prove that any one was in fact defrauded or deceived.

Thus, if X. forges A.'s name on a cheque so clumsily that A.'s banker suspects a forgery and refuses to honour the cheque, X. is nevertheless guilty of forgery. So, too, if Y. forges a bank note with the intention of cashing it, he has committed forgery, although it has never left his hands.

"(1) Every person who utters any forged document, seal or die shall be guilty of an offence of the like degree (whether felony or misdemeanour) and on conviction thereof shall be liable to the same punishment as if he himself had forged the document, seal or die.

(2) A person utters a forged document, seal or die, who, knowing the same to be forged, and with either of the intents necessary to constitute the offence of forging the said document, seal or die, uses, offers, publishes, delivers, disposes of, tenders in payment or in exchange, exposes for sale or exchange, exchanges, tenders in evidence or puts off the said forged document, seal or die.

(3) It is immaterial where the document, seal or die was forged."

1 R. v. Ritson (1869), L. R. 1 C. C. R. 200.

In re Cooper (1882), 20 Ch. D. 611.

3 Morison v. London County and Westminster Bank, Ltd., [1914] 3 KB 356.

4 S. 17 (2).

5 S 6.

In an indictment for forgery it is usual to add a second count, charging the

Every person, who with intent to defraud demands, receives or obtains any money or other property by means of any instrument which he knows to be forged, is guilty of felony and liable to fourteen years' penal servitude.1 Section 8 makes it felony punishable with varying terms of penal servitude for any person without lawful authority or excuse, the proof of which shall lie on him, to have in his custody or possession, knowing the same to be forged, a forged bank note, a forged die used for the marking of gold or silver plate, a forged stamp or die as defined by the Local Stamp Act, 1869, or the Stamp Duties Management Act, 1891, or a forged wrapper or label provided by the Commissioners of Inland Revenue or of Customs and Excise. Making or having in possession paper or implements for forgery without lawful authority or excuse, the proof of which lies on the accused, is a felony punishable with penal servitude for seven years. Justices of the peace may on reasonable grounds issue a warrant directing that a search be made for such paper or implements with a view to their destruction. "Possession" is defined by section 15. "Any person who knowingly and wilfully aids, abets, counsels, causes, procures or commands the commission of an offence punishable under this Act shall be liable to be dealt with, indicted, tried and punished as a principal offender."4

2

None of the offences under this Act can be tried at Quarter Sessions.5

accused with knowingly uttering the forged document, so that, if the prosecution fail to prove the actual forgery, the accused may be convicted of uttering. See Indict. ment, No. 12, in the Appendix.

1 S. 7; and see R. v. Cade, [1914] 2 K. B. 209.

2 Ss, 9 and 10.

9 S 16.

4 S. 11.

& S. 13.

CHAPTER VI.

BURGLARY AND HOUSEBREAKING.

THE crime of burglary is now defined by section 25 of the Larceny Act, 1916, as follows:

"Every person who in the night

(1) breaks and enters the dwelling-house of another with intent to commit any felony therein; or

(2) breaks out of the dwelling-house of another, having(a) entered the said dwelling-house with intent to commit any felony therein; or

(b) committed any felony in the said dwelling-house; shall be guilty of felony called burglary and on conviction thereof liable to penal servitude for life."

A Court of Quarter Sessions has jurisdiction to try any one charged with this offence, although grave and difficult cases should still be committed for trial to the Assizes.1

The term "dwelling-house" has a somewhat restricted meaning in the definition of burglary. It denotes a permanent building in which the occupier or any member of his family habitually sleeps at night. If the person who usually resides in the dwelling-house is temporarily absent, and nobody is sleeping there at all on the night of the burglary, it is still a dwelling-house. But the fact that a caretaker comes in at night and sleeps in a warehouse for the purpose of taking care of the goods in it will not make that warehouse a dwellinghouse. A part of a house may be a dwelling-house, c.g., if the building be so constructed as to consist of several parts, which have no internal communication between each other, and are occupied and habitually slept in by different tenants. Thus a flat or a set of rooms in a college is a separate dwellinghouse. A building standing within the curtilage of a

3

1 Larceny Act, 1916, s. 38.

2 R. v. Flannagan (1810), R. & R. 187.

8 Fenn v. Grafton (1836), 2 Bing. N. C. 617.

dwelling-house and occupied with it will not be deemed part of that dwelling-house "unless there is a communication between such building and dwelling-house either immediate or by means of a covered and enclosed passage leading from the one to the other."1

Such a dwelling-house, then, the burglar must have broken and entered in the night with intent to commit some felony therein. "Night" is defined as the period between 9 p.m. and 6 a.m. by Greenwich mean time, but subject to the provisions of the Summer Time Act, 1916.3 In cases of burglary at common law the breaking and entering must both take place in the night; but it is not necessary that both should take place on the same night. The breaking may occur on one night and the entry on another, provided that the breaking be with intent to enter, and the entry be with intent to commit a felony.*

The term "breaking" has also a technical meaning. It is not necessary that anything should be actually broken in the ordinary sense of the word. Drawing a bolt, lifting a latch, turning a key or the handle of a door which is closed, or unfastening a shutter, will be sufficient. But if the burglar enters a dwelling-house through a door or window which has been left partially open, this is not burglary, even though he opens it wider in order to effect an entrance.

6

Thus, if an outer door is left open, but an inner door is closed, and the burglar opens the latter, he commits burglary. Obtaining access to a dwelling-house by lifting up a cellar flap, which is kept in position solely by its own weight, is a breaking; so is coming down the chimney; 7 but entering through a hole in the roof which ought not to be there is not breaking. And of course it is not burglary for a thief, after he has entered without breaking a dwelling-house, to break open a chest or any movable piece of furniture within it.

Where admission into the house is obtained by means of some device or trick, there is said to be a constructive breaking on the part of the accused, as, for example, if the accused knock at the door and on its being opened rush in with a felonious intent; or gain admittance to the house on pretence

of wishing to speak to some member of the household; or bribe a servant to let him into the house, in which case the servant will also be guilty of burglary as a principal in the second degree.

Again, there will be a constructive breaking where the accused gains admittance by threatening to burn down the house or by other threats of violence, which put the inmates into such fear that they open the door to him. So also if the accused puts a child through an open window in order that he may run round and open the door, he is guilty of a constructive breaking of the house.

Where the prisoner asked the manager of a shop with whom he was on friendly terms to hand him the keys of the shop in order that he might make duplicate keys and so obtain entrance to the premises, and the owner of the shop authorised the manager to hand over the keys in the hope of catching the prisoner, and the prisoner subsequently broke and entered the premises by means of such duplicate keys with felonious intent, he was held to be guilty of housebreaking.2

There will be a sufficient entering if the prisoner has inserted into the house any part of his body, or a revolver or other weapon held in his hand and used for the purpose of intimidating any person in the house. So if he inserts any instrument for the purpose of removing any goods; but it is not enough that an instrument used to break the house open or part of such an instrument has come inside the house.

Lastly, the entry must be made with the intention of committing some felony inside the dwelling-house. But the offence of burglary is complete as soon as the breaking and entering have been effected, whether the ulterior felony be committed or not. Most burglaries are planned with the object of committing larceny; but an intention to commit any felony will suffice. If the entry, however, be made with the intention of committing merely a misdemeanour or a tort, there is no burglary even if some felony be in fact committed after the accused has entered the house.

It is always a question for the jury whether the accused entered with the necessary intent. They may infer an intention to commit a felony from the fact that the prisoner after entering did commit one. But this is not conclusive. Thus, if a tramp opens the door of a dwelling-house, and enters merely to obtain shelter for the night, but afterwards

1 R. v. Swallow (1813), 2 Russell on Crimes, 6th ed., 8.

2 R. v. Chandler, [1913] 1 K. B. 125