the breaking as well as after; for though there were once different opinions upon the question as to whether the breaking out of a house to escape, by a man who had previously entered by an open door with intent to steal, was burglary, Lord Bacon (g) holding the affirmative and Sir Matthew Hale (h) the negative, it is now enacted that whosoever shall enter the dwelling-house of another with intent to commit any felony therein, or being in such dwelling-house shall commit any felony therein, and shall in either case break out of the said dwellinghouse in the night, shall be deemed guilty of burglary (i). 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 complete the burglary (j). As to the intent. It is clear that, except where the commission of a felony in the dwelling-house is connected with the crime in a different manner, as in the instance above given, 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 burglary whether the thing be actually perpetrated or not. Nor does it make any difference, whether the offence were felony the following cases: R. v. Bailey, R. & R. C. C. 341; R. v. Russell, 1 M. C. C. R. 377; R. v. Davis, R. & R. C. C. 355; R. v. Brice, ib. 450; R. v. Haines, ib. 451. And as to what are not, see R. v. Lawrence, 4 Car. & P. 231; R. v. Smith, R. & M. C. C. R. 178; R. v. Rust, Ryan & Moody, C. C. R. 183. (9) Bac. Elem. 65; and see 2 East, P. C. c. 15, s. 6. (h) 1 Hale, P. C. 554. (i) 24 & 25 Vict. c. 96, s. 51. A similar enactment was formerly contained in 12 Ann. c. 7 (repealed by 7 & 8 Geo. 4, c. 27), and afterwards in 7 & 8 Geo. 4, c. 29 (repealed by 24 & 25 Vict. c. 95). () 4 Bl. Com. 227. [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.] Thus much for the nature of burglary, and until modern times it was, under certain circumstances of aggravation, a capital offence (7): for by 7 Will. IV. & 1 Vict. c. 86, burglariously to break and enter into any dwelling-house, and to assault with intent to murder-or even without such intent to stab, cut, wound, beat, or strike-any person being therein, was a felony, punishable with death. But this Act was repealed by 24 & 25 Vict. c. 95; and under 24 & 25 Vict. c. 96, s. 52, whoever shall be convicted of the crime of burglary, shall be liable to penal servitude for life, or any term not less than five years (m); or to be imprisoned for any term not more than two years; and, in the case of imprisonment, hard labour and solitary confinement may be superadded. In connection with the crime of burglary it may be mentioned, that whoever shall in any way enter a dwellinghouse in the night, with intent to commit a felony, is guilty of felony, and punishable with penal servitude to the extent of seven years, or imprisonment as above specified (). And that whoever shall be found by night, armed with a dangerous or offensive weapon or instrument, with intent to break or enter any building, and to commit felony therein; or shall even be found by night in the possession, without lawful excuse, of any house-breaking implement; or with his face blackened or disguised, with intent to commit any felony; or shall be found by night in any building, with intent to commit a felony therein : (1) At common law burglary was a clergyable felony, but the clergy was taken away by 1 Edw. 6, c. 12; 18 Eliz. c. 7; and 3 W. & M. c. 9. These acts were repealed by 7 & 8 Geo. 4, c. 27, and the punish ment was death under 7 & 8 Geo. 4, (m) See 27 & 28 Vict. c. 47. shall be guilty of a misdemeanor, punishable with penal servitude for five years, or imprisonment (with or without hard labour) not exceeding two years (o): and, in case of a second conviction, or if convicted after a previous conviction for felony, he is liable either to such imprisonment, or to penal servitude to the extent of ten years (p). III. Sacrilege and housebreaking by day are both offences which are now regulated by 24 & 25 Vict. c. 96; and, with regard to the first, it is provided, that the same penal consequences as are provided by that Act with respect to burglary, and which we have already specified (2), shall attach to whomsoever shall break and enter any church, chapel, meeting-house, or other place of divine worship, and commit a felony therein,—or, being in such place, shall commit a felony therein, and then break out of the same (r). This constitutes the crime of sacrilege, and is breaking into the House of God. It is consequently made more penal than to break by day into other buildings; for in housebreaking by day (s) the extreme limit of the term of penal servitude which may be inflicted is fourteen years, instead of for life (t). It is also a felony, and punishable either by imprison (0) See 27 & 28 Vict. c. 47. (p) 24 & 25 Vict. c. 96, ss. 58, 59, re-enacting 14 & 15 Vict. c. 19, ss. 1 and 2. As to the construction of which, see R. v. Oldham, 21 L. J. (M. C.) 134; R. v. Bailey, 1 Dearsley's C. C. R. 249. By stat. 5 Geo. 4, c. 33, s. 4, it is also provided, that persons in possession of housebreaking implements with intent to break into a house, shall be deemed rogues and vagabonds, and punished accordingly. (2) Vide sup. p. 116. (r) 24 & 25 Vict. c. 96, ss. 50, 52. (8) House-breaking is where the offender, after breaking and en- ment as in the previous cases, or by penal servitude to the extent of seven years, to break and enter any dwellinghouse, church, chapel, meeting-house or other place of divine worship, or any building within the curtilage, or any school-house, shop, warehouse or counting-house, with intent to commit any felony therein, although such felony shall not have been effected (u). Having now considered offences more immediately connected with houses and other buildings, we proceed, in the second place, to consider offences against property in general, including offences against rights arising out of contract. 1. Larceny (by contraction for latrociny, latrocinium), is the unlawful taking and carrying away of things personal, with intent to deprive the right owner of the same (r); and it is either simple or accompanied with circumstances of aggravation (y). Let us examine into the nature of this offence (which is otherwise termed theft), as laid down in this definition. In the first place it must be an unlawful taking, which implies that the goods must pass from the possession of the right owner (≈), and without his consent (a): and therefore (u) 24 & 25 Vict. c. 96, s. 57; 27 & 28 Vict. c. 47. See The Queen v. McPherson, 26 L. J. (N. S.) M. C. 134. By 14 & 15 Vict. c. 100, s. 9, a verdict of guilty of an attempt to commit felony, may be given on an indictment charging the actual commission of a felony. (x) The definition of Blackstone (vol. iv. p. 229) is "the felonious "taking and carrying away of the "personal goods of another." But this leaves it to be inquired, what kind of taking and carrying away is considered as felonious. (y) Larceny, accompanied with circumstances of aggravation, is described in the books as being compound, mixed or complicated, as to which vide post, p. 129. (2) 1 Hale, P. C. 513. As to this part of the definition see the Report of the Criminal Code Bill Commission, p. 27. It is there stated that this rule has given rise to "vast technicality "-inasmuch as there are many cases on the primary point as to what is the precise meaning of taking or carrying away, considered as a physical operation. (a) 4 Bl. Com. 230. Upon the where there is no change of possession, or a change of it by consent, or a change from the possession of a person without title to that of the right owner, there can be no larceny (b). And, as the taking must be without the consent of the owner, so, as the general rule, no delivery of the goods from the owner to the offender upon trust, can ground a larceny:-as if A. lends B. a horse, and he rides away with him (c). Yet if the delivery be obtained. from the owner by a person having animus furandi at the time, and who afterwards unlawfully appropriates the goods in pursuance of that intent, it is larceny; as if, in the case above supposed, B. solicited the loan of the horse, with intent to steal him (d). But in such cases, the bare failure to re-deliver to the owner shall not of necessity be intended to arise from a felonious design; since that may happen from a variety of other accidents. On the other hand, one who has received goods by delivery from the owner, under such circumstances as fail to divest such owner of the legal possession, will be guilty of larceny if he appropriates them to himself (e); as when a servant makes away with his master's plate (f), or the guest at an inn makes away with the articles of which he has the temporary use (g). And, moreover, the principle of the common law as to the necessity of the owner not consenting to the original taking, in order to support a charge of larceny, has been, in some instances, qualified ground that in contemplation of law husband and wife are one person, the latter cannot be convicted of stealing her husband's goods so long as they are living together. (See R. v. Kenny, Law Rep., 2 Q. B. D. 307.) If, however, the parties be living apart, or if the goods be stolen in the act of desertion, either wife or husband is liable to criminal proceedings. (See 45 & 46 Vict. c. 75, ss. 12, 16.) (6) But if a person has temporary title against the permanent owner, the latter may be guilty of larceny in taking them. (R. v. Wilkinson, R. & R. C. C. 470; 4 Bl. Com. 231.) (c) 4 Bl. Com. 230. (d) Major Semple's case, 2 Leach, 469, 470. See Queen v. Poyser, 20 L. J. (M. C.) 191. (e) Reed's case, 2 Dearsley's C. C. R. 168, 257. (f) Christian's Blackstone, vol. iv. p. 230 (note); 1 Hale, P. C. 506. (g) Hawk. P. C. b. 1, c. 33, s. 6; 4 Bl. Com. 231. |