Breaking with intent to commit offence.

456. Every one is guilty of an indictable offence and liable to seven years' imprisonment who breaks and enters any place of public worship, with intent to commit any indictable offence therein.

Origin]-Sec. 409, Code of 1892; R.S.C. 1886, ch. 164, sec. 42. "Breaks and enters "]--See definitions in secs. 335 (c) and 340, and see note to sec. 457.

Place of public worship]-Generally where an official act has been done which can only be lawful and valid by the doing of certain preliminary acts, it will be presumed that those preliminary acts have also been done. Reg. v. Cresswell, 13 Cox C.C. 178. There, the charge was bigamy, and the proof of the marriage was that it had taken place in a building some distance from a church. The law prohibited marriages except in a licensed church. But there was proof of the clergyman acting as such, and there was proof that in the hall the service had been several times performed. Lord Coleridge, C.J., said: “We are of opinion that the marriage service having been performed in a place where divine service was several times performed, the rule omnia praesumuntur rite esse acta' applies, and that we must assume that the place was properly licensed, and that the clergyman performing the service was not guilty of the grave offence of marrying persons in an unlicensed place. The facts of the marriage and other church services being performed there by a clergyman are abundant evidence from which the Court and a jury might assume that the place was properly licensed."

In R. v. Brown, 13 Can. Cr. Cas. 133, at 157, Graham, E. J., said:"This law is not peculiar to the proof of marriage. Rugg v. Kingsmill, L.R. 1 Ad. & Ec. 343. In looking over the Criminal Code, it will be seen that there are crimes in respect to churches, highways, railway stations, public works, and so on, and in most cases there is a writing, a deed of dedication, expropriation proceedings, order in council, or some other thing in writing which indicates their character; but I think it will make it very burdensome to the administration of justice if it is held that in such cases the writing only will suffice to prove that character." Second offences]-See secs. 465, 851, 963, 964, 982.

Breaking dwelling by night.-Breaking out of dwelling by night.Committing the offence when armed.-Burglary. Being found armed after the offence.

457. Every one is guilty of an indictable offence and liable to imprisonment for life who,—

(a) breaks and enters a dwelling-house by night with intent to commit any indictable offence therein; or,

(b) breaks out of any dwelling-house by night, either after committing an indictable offence therein, or after having entered such dwelling-house, either by day or by night, with intent to commit an indictable offence therein.

2. Every one convicted of an offence under this section who when arrested, or when he committed such offence, had upon his person any offensive weapon, shall, in addition to the imprisonment above prescribed, be liable to be whipped.

Origin]-Code Amendment 1900, ch. 46, sec. 3; Sec. 410, Code of 1892; R.S.C. 1886, ch. 164, sec. 37; 7-8 Geo. IV, Imp., ch. 29.

"Breaks and enters"]-To break into a dwelling-house means to break any part, internal or external, of a building, or to open by any means whatever any door, window, shutter, cellar-flap or other thing intended to cover openings to a building, or to give passage from one part of it to another. Code sec. 335 (c). The means of opening, here referred to, includes lifting in the case of things kept in their places by their own weight. Code sec. 335 (c).

A person enters a dwelling-house, as regards the offence of bur

glary, by breaking and entering at night with intent, as soon as any part of the body of the person making the entrance is within the building, or as soon as any part of any instrument used by him (to break into or to assist him in entering the building) is within the building. Code sec. 340. A person who enters any chimney or other aperture of the building permanently left open for any necessary purpose is to be deemed to have broken and entered that building. Code sec. 340. A temporary aperture would not be included if entrance could be obtained without further opening. Sub-sec. (c) appears to include the further lifting of a partially opened window as a breaking, and in that respect to extend the common law which did not make it a breaking unless the door or window by which entrance was effected happened to be closed. But it has been held in a Nova Scotia case that where a window had been opened a few inches for purposes of ventilation, and the person entering had lifted it in order to get in, it is not burglary. R. v. Burns (1903), 36 N.S.R. 257, 7 Can. Cr. Cas. 95. A person who obtains entrance into a dwelling-house by any threats or artifice used for that purpose is to be deemed to have broken and entered that building; R. v. Swallow, 1 Russell, 793; and so is the person who obtains entrance by collusion with any person in the building. Code sec. 340; Le Mott's case, Kelyng 42; Cassy's case, Kelyng 62; Hawkins' case, 2 East P.C. 485; Cornwall's case, 2 Strange R. 881.

Entry by collusion with an inmate]

The entry by collusion with a person in the building must be the

result of real and not pretended collusion, it being held that where a servant pretended to agree with a robber and opened the door and let him in for the real purpose of apprehending him, there was no breaking and entering for the door was lawfully open. R. v. Johnson (1841) Car. & M. 218. But going into a house with intent to steal and getting access by means of duplicate keys fraudulently obtained by the accused through a servant of the owner, constitutes a breaking and entering, because the key was knowingly used without lawful authority; and such is the result although the servant had only pretended to become an accomplice with the accused and had arranged with the police to be in the house to arrest the accused which was done before he had time to steal anything. R. v. Chandler, 8 Cr. App. R. 82 L.J.K.B. 106, [1913] 1 K.B. 125.

Dwelling-house] See definition in sec. 335 (e) and as to outbuildings, sec. 339.

By night "]—' By night' as regards burglary means between 9 p.m. and 6 a.m. Code sec. 2, sub-sec. 23.

Sub-sec. (2)-Possession of "offensive weapon "]-See definition of 'offensive weapon' in sec. 2, sub-sec. (24).

Term of imprisonment may be shortened]-Code sec. 1054.

Recent possession as evidence on charge of burglary and theft]— The burglary was committed on the 18th or 19th December, 1903, and the prisoner was arrested on the 16th February, 1904, with one of the articles stolen upon his person; it was held that the judge could not properly have ruled, in all the circumstances of the case, that the lapse of time was so great as absolutely to repel any presumption that the prisoner was concerned in the burglary: and that the possession of the article and other circumstances warranted the jury in drawing an inference of guilt. R. v. Burdell, 11 O.L.R. 440, 10 Can. Cr. Cas. 365.

Punishment of whipping]--See secs. 80, 204, 216, 276, 292, 293, 301. 302, 446, 457, 1060.

Housebreaking with intent to ravish]-See R. v. Rodley [1913] 3 K.B. 468, 82 L.J.K.B. 1070; R. v. Burns (1903), 36 N.S.R. 257, 7 Can. Cr. Cas. 95,

On the trial of an indictment for burglary with intent to rape, evidence of his immoral conduct on the same night but subsequent to the attempt alleged, is not admissible against the accused. R. v. Rodley [1913] 3 K.B. 468, 9 Cr. App. R. 69, 82 L.J.K.B. 1070; R. v. Fisher [1910] 1 K.B. 149, 26 Times L.R. 122, 79 L.J.K.B. 187; and see Thompson v. Director of Public Prosecutions (1918), 87 L.J.K.B. 478 (H.L.); Makin v. Attorney-General of N.S.W. [1894] A.C. 57, 63

L.J.P.C. 41.

Possession of burglar's tools by night]--Code sec. 464.

Breaking dwelling by day.-Breaking out of dwelling by day. 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.

Origin]-Sec. 411, Code of 1892; R.S.C. 1886, ch. 164, sec. 40. "Breaks and enters"; "breaks out "]-Code secs. 335 (c); 340. Housebreaking and theft]-If the indictable offence committed be theft, and the charge laid is consequently housebreaking and theft, there cannot be a conviction for receiving on that count; R. v. Lamoreaux, 10 Que. Q.B. 15, 4 Can. Cr. Cas. 101. The essential elements of the offence of receiving are not included in the charge of housebreaking and theft; and secs. 949 and 951 do not authorize a conviction for another offence unless it is included in the offence charged as described in the enactment creating it or as charged in the count, or unless for an attempt of the offence charged or an attempt of the lesser offence so included.

Breaking with intent to commit offence.

459. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, by day, breaks and enters any dwelling-house with intent to commit any indictable offence therein.

Origin]-Sec. 412, Code of 1892; R.S.C. 1886, ch. 164, sec. 42. "Dwelling house "1-Code sec. 335, sub-sec. (e).

Housebreaking with intent]—As to this offence there is no specifica tion that the offence shall be by night as in sec. 457 (burglary) or by day in the offence of housebreaking combined with theft or some other indictable offence by day for which see. 458 provides a more onerous penalty than does sec. 459. There may be a conviction on a charge laid under sec. 459, although the evidence proves the offence of burglary;' R. v. Robinson, Russ. & R. 321; or proves an offence under sec. 458. Second offences]-See secs. 465, 757, 851, 963, 964, 982.

Breaking shop, etc., and committing indictable offence.

460. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, either by day or night, breaks and enters and commits any indictable offence in a schoolhouse, shop, warehouse or counting-house, or any building with

in the curtilage of a dwelling-house, but not so connected therewith as to form part of it under the provisions herein before contained, or in any pen, cage, den or enclosure in which furbearing animals wild by nature are kept in captivity for breeding or commercial purposes.

Origin]-Sec. 413, Code of 1892; Code Amendment Act, 1913, ch. 13; R.S.C. 1886, ch. 164, sec. 41.

"Breaks and enters"]-Code sec. 335 (c) 340; and see note to sec. 457; R. v. Chandler [1913] 1 K.B. 125, 82 L.J.K.B. 106, 8 Cr. App. R. 82 (entry by key supplied by pretended accomplice).

'Or in any pen, cage," etc.]-These words were added to the section by the amendment of 1913. As to theft of wild animals kept in cages, etc., see Code secs. 345, 347, 350, 370, 381 (by false keys).

Second offences]-See secs. 465, 757, 851, 963, 964, 982.

Breaking shop, etc., with intent.

461. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, either by day or night, breaks and enters any of the buildings, or any pen, cage, den or enclosure mentioned in the last preceding section with intent to commit any indictable offence therein.

Origin]-Sec. 414, Code of 1892; 1913 Can. Stat., ch. 13; R.S.C. 1886, ch. 164, sec. 42.

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“Breaks and enters"]-See sees. 335 (c), 340, and note to sec. 457. A clandestine opening of a door even during business hours may be a breaking and entering under sec. 461, if done with intent to steal or to commit some other indictable offence. R. v. Smith, 17 Man. R. 282, 13 Can. Cr. Cas. 326.

“Pen, cage, den or enclosure "]-These words were inserted by the Code amendment of 1913.

Second offences]-See secs. 465, 757, 851, 963, 964, 982.

Being found in dwelling-house at night.

462. Every one is guilty of an indictable offence and liable to seven years' imprisonment who unlawfully enters, or is in, any dwelling-house by night with intent to commit any indict able offence therein.

Origin]-Sec. 415, Code of 1892; R.S.C. 1886, ch. 164, sec. 39. "By night"]-See definition in sec. 2 (23).

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Unlawfully being in a dwelling-house by night with intent]-As regards the offence of unlawfully being in the house, as distinguished