not to be a dwelling-house, so as to make the breaking and entering a burglary. R. v. Lyon, 1 Leach, 185; 2 East, P. C. 497. Nor will the circumstance of the prosecutor having procured a person to sleep in the house (not being one of his own family) for its protection, make any difference. Thus where a house was newly built and finished in every respect, except the painting, glazing, and flooring of one garret, and a workman, who was constantly employed by the prosecutor, slept in it for the purpose of protecting it, but no part of the prosecutor's domestic family had taken possession, it was held at the Old Bailey, on the authority of R. v. Lyon (supra), that it was not the dwelling-house of the prosecutor. R. v. Fuller, 1 Leach, *186 (n). So where the prosecutor took a house, and deposited some of his goods in it, and not having slept there himself, pro[*371 cured two persons (not his own servants) to sleep there for the purpose of protecting the goods, it was held at the Old Bailey, that as the prosecutor had only in fact taken possession of the house so far as to deposit certain articles of his trade therein, but had neither slept in it himself, nor had any of his servants, it could not in contemplation of law be called his dwelling-house. R. v. Harris, 2 Leach, 701; 2 East, P. C. 498. See also R. v. Hallard, coram Buller, J., 2 Leach, 701 (n); R. v. Thompson, 2 Leach, 771. The following case, decided upon the construction of the statute 12 Anne, c. 7 (repealed), is also an authority on the subject of burglary: The prosecutor, a publican, had shut up his house, which in the daytime was totally uninhabited, but at night a servant of his slept in it to protect the property left there, which was intended to be sold to the incoming tenant, the prosecutor having no intention of again residing in the house himself. On a case reserved, the judges were of opinion, that as it clearly appeared by the evidence of the prosecutor that he had no intention whatever to reside in the house, either by himself or his servants, it could not in contemplation of law be considered as his dwelling-house, and that it was not such a dwelling-house wherein burglary could be committed. R. v. Davies, alias Silk, 2 Leach, 876; 2 East, P. C. 499. Where some corn had been missed out of a barn, the prosecutor's servant and another person put a bed in the barn, and slept there, and upon the fourth night the prisoner broke and entered the barn; upon a reference it was agreed by all the judges, that this sleeping in the barn made no difference. R. v. Brown, 2 East, P. C. 497. So a porter lying in a warehouse, to watch goods, which is solely for a particular purpose, does not make it a dwelling-house. R. v. Smith, 2 East, P. C. 497.

The

Where no person sleeps in the house, it cannot be considered a dwelling-house. The premises where the offence was committed consisted of a shop and parlor, with a staircase to a room over. prosecutor took it two years before the offence committed, intending to live in it, but remained with his mother, who lived next door. Every morning he went to his shop, transacted his business, dined, and stayed the whole day there, considering it as his home. When he first bought the house he had a tenant, who quitted it soon after

wards, and from that time no person had slept in it. On a case reserved, all the judges held, that this was not a dwelling-house. R. v. Martin, Russ. & Ry. 108. It seems to be sufficient if any part of the owner's family, as his domestic servants, sleep in the house. A. died in his house. B., his executor, put servants into it, who lodged in it, and were at board wages, but B. never lodged there himself. Upon an indictment for burglary, the question was, whether this might be called the mansion-house of B. The court inclined to think that it might, because the servants lived there; but upon the evidence there appeared no breach of the house. R. v. Jones. 2 East, P. C. 499.

Proof of the premises being a dwelling-house-occupationtemporary absence. A house is no less a dwelling-house, because at certain periods the occupier quits it, or quits it for a temporary purpose. "If A.," says Lord Hale, "has a dwelling-house, and he and all his family are absent a night or more, and in their absence, in the night *a thief breaks and enters the house to commit felony, this is

*372] burglary." 1 Hale, P. C. 556; 3 Inst. 64. So if A. have

two mansion-houses, and is sometimes with his family in one, and sometimes in the other, the breach of one of them, in the absence of his family, is burglary. Id. 4 Rep. 40, a. Again, if A. have a chamber in a college or inn of court, where he usually lodges in term time, and in his absence in vacation his chamber or study is broken open, this is burglary. R. v. Evans, Cro. Car. 473; 1 Hale, P. C. 556. The prosecutor being possessed of a house in Westminster in which he dwelt, took a journey into Cornwall, with intent to return and move his wife and family out of town, leaving the key with a friend to look after the house. After he had been absent a month, no person being in the house, it was broken open, and robbed. He returned a month after with his family, and inhabited there. This was adjudged burglary, by Holt, C. J., Treby, J., and four other judges. R. v. Murry, 2 East, P. C. 496; Foster, 77.

In these cases the owner must have quitted his house animo revertendi, in order to have it still considered as his mansion, if neither he nor any part of his family were in at the time of the breaking and entering. 2 East, P. C. 496. The prosecutor had a house at Hackney, which he made use of in the summer, his chief residence being in London. About the latter end of the summer he removed to his town house, bringing away a considerable part of his goods. The following November his house at Hackney was broken open, upon which he removed the remainder of his furniture, except a few articles of little value. Being asked whether at this time he had any intention of returning to reside, he said he had not come to any settled resolution, whether to return or not, but was rather inclined totally to quit the house and let it. His house was broken open in the January following. The court (at the Old Bailey) were of opinion, that the prosecutor having left the house and disfurnished it, without any settled resolution to return, but rather inclining to the contrary, it

could not be deemed his dwelling-house.' R. v. Nutbrown, Foster, 77; 2 East, P. C. 496. See R. v. Flannagan, Russ. & Ry. 187.

Occupation, how to be described. It is sometimes quite clear that the building is a dwelling-house, but doubtful in whose occupation it is; this is a point on which prosecutions for burglary frequently used to fail; but now that by the 14 & 15 Vict. c. 100, s. 1, the indictment might generally be amended (supra, p. 209), it is of much less importance. The following cases have been decided on the subject:

Occupation, how to be described-house divided, without internal communication, and occupied by several. Where there is an actual severance in fact of the house, by a partition or the like, all internal communication being cut off, and each part being inhabited by several occupants, the part so separately occupied is the dwellinghouse of the person living in it, provided he dwell there. If A. lets a shop, parcel of his dwelling-house, to B. for a year, and B. holds it, and works or trades in it, but lodges in his own house at night, and the shop is broken open, it cannot be laid to be the dwellinghouse of A., for it was severed by the lease during the term; but if B. or his servants sometimes lodge in the shop, it is the mansionhouse of B., and burglary may be committed in it. 1 Hale, P. C. *557; vide R. v. Sefton, infra. The prosecutors, Thomas Smith and John Knowles, were in partnership, and lived next door to [*373 each other. The two houses had formerly been one, but had been divided, for the purpose of accommodating the families of both partners, and were now perfectly distinct, there being no communication from one to the other, without going into the street. The house-keeping, servants' wages, etc., were paid by each partner respectively, but the rent and taxes of both the houses were paid jointly out of the partnership fund. The offence was committed in the house of the prosecutor Smith. On the trial, before Eyre, C. B., and Gould, J., at the Old Bailey, it was objected that the burglary ought to have been laid to be in the dwelling-house of the prosecutor Smith only; and of this opinion was the court. R. v. Martha Jones, 1 Leach, 537; 2 East, P. C. 504. But it is otherwise where there is an internal communication. Thus where a man let part of his house, including his shop, to his son, and there was a distinct entrance into the part so let, but a passage from the son's part led to the father's cellars, and

1 Burglary may be committed in a house in the city, in which the prosecutor intended to reside on his return from his summer residence in the country, and to which, on going into the country, he had removed his furniture from his former residence in town; though neither the prosecutor nor his family had ever lodged in the house, in which the crime is charged to have been committed, but merely visited it occasionally. Commonwealth v. Brown, 2 Rawle, 207. Not necessary that anybody should be inside the house to constitute burglary. State v. Reed, 20 fa. 413. Breaking and entering a dwelling-house, with intent to steal, is burglary, although the house be unoccupied at the time. State v. Meerchouse, 34 Mo. 344. S.

Absence from home with animus revertandi will not deprive a house of its status as a "dwelling-house" in an indictment for burglary. Harrison v. State, 74 Ga. 801.

they were open to the father's part of the house, and the son never slept in the part so let to him, the prisoner being convicted of a burglary in the shop, laid as the dwelling-house of the father, the conviction was held by the judges to be right, it being under the same roof, part of the same house, and communicating internally. R. v. Sefton, 2 Russ. 5th ed. 16; Russ. & Ry. 203. Chambers in the inns of court are to all purposes considered as distinct dwelling-houses, and therefore whether the owner happens to enter at the same outer door or not, will make no manner of difference. The sets are often held under distinct titles, and are, in their nature and manner of occupation, as unconnected with each other as if they were under separate roofs. 2 East, P. C. 505; 1 Hale, P. C. 556.

Occupation, how to be described, where there is an internal communication, but the parts are occupied by several, under different titles. Although in the case of lodgers and inmates who hold under one general occupier, the whole of the house continues to be his dwelling-house, if there be an internal communication, and the parties have a common entrance, vide infra, yet it is otherwise where several parts of a building are let under distinct leases. The owner of a dwelling-house and warehouse under the same roof, and communicating internally, let the house to A. (who lived there), and the ware house to A. & B., who were partners. The communication between the house and warehouse was constantly used by A. The offence was committed in the warehouse, which was laid to be the dwelling-house of A. On a case reserved, the judges were of opinion that this was wrong, A. holding the house in which he lived under a demise to himself alone, and the warehouse under a distinct demise to himself and B. R. v. Jenkins, Russ. &. Ry. 244.1

Occupation, how to be described-lodgers. Where separate apartments were let in a dwelling-house to lodgers, it seems formerly to have been doubted whether they might not in all cases be described as the mansion-house of the lodgers.2 2 East, P. C. 505; Hawk, P. C. b. 1, c. 38, ss. 13, 14. But the rule is now taken to be, according to the opinion of Kelynge, 84, that if the owner, who lets out apartments in his house to other persons, sleeps under the same roof, *and has but one outer door common to himself and his lodgers, *374] such lodgers are only inmates, and all their apartments are parcel of the dwelling-house of the owner. But if the owner do not lodge in the same house, or if he and his lodgers enter by different outer doors, the apartments so let are the mansion, for the time being, of each lodger respectively. And accordingly it was so ruled by Holt, C. J., at the Old Bailey, in 1701, although in that case the rooms were

A breaking and entering a room or rooms in a tenement-house, rented to a separate family, with an outer door and entry common to all, is a burglary. Mason v. People, 26 N. Y. 200. S.

2 A guest at a hotel who feloniously breaks into the room allotted to another guest is guilty of burglary. State v. Clark, 48 Vt. 629. S.

let for a year, under a rent, and Tanner, an ancient clerk in court, said that this was the constant course and practice. 2 East, P. C. 505; 1 Leach, 90 (n). Where one of two partners is the lessee of a shop and house, and the other partner occupies a room in the house, he is only regarded as a lodger. Morland & Gutteridge were partners; Morland was the lessee of the 'whole premises, and paid all the rent and taxes for the same. Gutteridge had an apartment in the house, and paid Morland a certain sum for board and lodging, and also a certain proportion of the rent and taxes for the shop and warehouses. The burglary was committed in the shop, which was held to be the dwelling-house of Morland, and the judges held the description right. R. v. Parmenter, 1 Leach, 537 (n). In the following cases, the apartments of the lodger were held to be his dwelling-house : The owner let the whole of a house to different lodgers. The prosecutor rented the first floor, a shop and a parlor on the ground floor, and a cellar underneath the shop, at 127. 10s. a year. The owner took back the cellar to keep lumber in, for which he allowed a rebate of 40s. a year. The entrance was into a passage, by a door from the street, and on the side of the passage one door opened into the shop, and another into the parlor, and beyond the parlor was the staircase which led to the upper apartments. The shop and parlor doors were broken open, and the judges determined, that these rooms were properly laid to be the dwelling-house of the lodger, for it could not be called the mansion of the owner, as he did not inhabit any part of it, but only rented the cellar for the purpose before mentioned. R. v. Rogers, 1 Leach, 89, 428; 2 East, P. C. 506, 507; Hawk. P. C. b. 1, c. 38, s. 29.

The house in which the offence was committed belonged to one Nash, who did not live in any part of it himself, but let the whole of it out in separate lodgings from week to week. John Jordan, the prosecutor, had two rooms, viz., a sleeping-room, and a workshop in the garret, which he rented by the week as tenant at will to Nash. The workshop was broken and entered by the prisoner. Ten judges, on a case reserved, were unanimously of opinion, that as Nash, the owner of the house, did not inhabit any part of it, the indictment properly charged it to be the dwelling-house of Jordan. R. v. Carrell, 1 Leach, 237, 429; 2 East, P. C. 506. The prisoner was indicted under the repealed statute 3 & 4 Will. & M. c. 9, s. 1, for breaking and entering a dwelling-house and stealing therein. The house was let out to three families, who occupied the whole. There was only one outer door, common to all the inmates. J. L. (whose dwellinghouse it was laid to be) rented a parlor on the ground floor, and a single room up one pair of stairs, where he slept. The judges were of opinion, that the indictment rightly charged the room to be the dwelling-house of J. L. R. v. Trapshaw, 1 Leach, 427; 2 East, P. C. 506, 780.

It follows from the principle of the above cases, that if a man lets out part of his house to lodgers, and continues to inhabit the rest *himself, if he breaks open the apartment of a lodger, [*375