In whose man

sion.

while they are thus severally inhabited; but if the stranger Ch. XV. § 17. and his family go away, it becomes one tenement again. With respect to the case of chambers in the inns of court, which have been before noticed in another view, they are to Ante, s. 9. Tracy's MS. 83. all purposes considered as distinct dwelling-houses: and Evans v. Finch, therefore whether the owner happen to enter at the same Cro. Car. 473. W. Jones, 394. common outer door or not will make no manner of differ- 1 Hale, 522, 3. ence. The sets are often held under distinct titles, and 556. 1 Hawk. are in their nature and manner of occupation as unconnected with each other as if they were under separate roofs.

ch. 38. s. 11.

$18.

i Hawk. ch. 38.

Much doubt has formerly been entertained whether in the case of burglary in the hired apartment of an inmate, it shall Inmates. be laid to be committed in the mansion of the inmate or of the owner. Lord Hale was of the former opinion; which 1 Hale, 556. is also argued for very elaborately by Hawkins, at least where §. 13, 14. the party has a fixed and certain interest in his apartment. As where one hires a distinct apartment in the house for his lodging for a certain time, though he enter at the same door with the other inhabitants, and therefore is but an inmate: because as long as it is severed by the lease, it is in the eye of the law as distinct from the other parts of the house, as if the person who rented it had a freehold or inheritance in it. This opinion of Hawkins is delivered generally, without reference to the distinction of the owner's residing or not in the same mansion. But his reasoning evidently tends to exclude any such distinction. But however convenient such a rule might have been, it certainly does not coincide with the current of authorities either ancient or modern. For the rule is now taken to be, according to the opinion of Kelyng, Kel. 84. 4 Blac that if the owner, who lets out apartments in his house to v. Gansell, other persons, sleep under the same roof, and have but one Cowp. 1. outer door common to him and his lodgers, such lodgers are only inmates, and all their apartments are parcel of the one dwelling-house of the owner. But if the owner do not lodge in the same house, or if he and the lodgers enter by different outer doors, the apartments so let out 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 MS. Tracy, 83. 1701; although in that case the rooms were let for a year under a rent. And Tanner an ancient clerk of the court

Com. 225. Lee

Ch. XV. § 18. said, that the constant opinion and practice of the court had I whose man- been according to the opinion of Kelyng C. J., which opinion was cited by Lord Holt.

sion. Inmates.

Carrell's case,

O. B. Feb. 1782.

Vi. 1 Leach, 273
S. C. n. a.

Richard Carrell was indicted for burglary in the dwellingMS. Gould and house of John Jordan. The house in which the offence was Boller Js. committed belonged to one Nash, who did not live in any part of it himself, but let the whole of it out in separate Where an inmate lodgings from week to week. Jordan had two apartments in the house, a sleeping room up one pair of stairs and a workshop in the garret, which he rented by the week as tenant at will to Nash. The workshop was the room broken open the latter must be by the prisoner. In Easter term 1782 ten Judges against two laid in his man- held the offence well laid, and relied on the case of Rogers.

had two rooms,

one in which he slept, and the

other up stairs; held burglar, in

sion; the owner

retaining no part The two Judges thought that it was not the mansion-house of the house. (Eyre B. & Bul. of Jordan, but that it might have been laid to have been the mansion-house of Nash: to which some of the others inclined if it were not the mansion of Jordan.

ler J.) Rogers's case,

infra.

Trapshaw's

In Trapshaw's case the facts were exactly the same as in case, O. B. Aug. Carrell's case: the owner let the house out to different 1786, and Hil.

478.)

term 1787. MS. lodgers, who had but one common outer door. The proseJud. Leach, 333. cutor Linney rented and occupied a room on the first floor, S. C. (new edit. where he slept, and a parlour below, which latter was broken open and rifled by the prisoner. All the Judges, upon the authority of Carrell's case and Rogers's case, held that the indictment (which was on the stat. 3 & 4 W. & M. c. 9.) well laid the robbery to be in the dwelling-house of Linney, and that the conviction was proper.

Kel. 84. MS.
Tracy, 82.

$ 19. Occupation of

owner without
inhabiting.

Rogers's case,
M. 13 G. 3.

Hence it follows, that if a man let out part of his house to inmates, and continue to inhabit the rest himself; if he break open the apartments of such inmates, and steal their goods, it is felony only, and not burglary; for it cannot be burglary to break open his own house.

But a mere occupation of some part of the mansion by the owner, without inhabiting the same, makes no difference in the question of burglary with respect to tenants or inmates. William Rogers was indicted at the Old Bailey for burglary in the dwelling-house of Philip Chandler. It appeared MS. Gould and Buller Js. that the owner let the whole of it in apartments to different Leach, 84. S. C. persons, and did not inhabit any part of it himself. Chand(new edit. 104.) ler rented the bottom part of the house, consisting of a shop and a parlour and a cellar underneath; but the owner had

taken

sion. Inmates.

taken back the cellar for the purpose of keeping wood and Ch. XV. § 19. lumber in it, deducting so much for it out of the rent. In whose manThere was but one common outer door from the street, which communicated with the rest of the house as well as the shop and parlour in which the burglary was committed. Nine Judges present all agreed that the indictment properly laid the shop and parlour to be the mansion-house of the prosecutor; for that though the owner occupied the cellar, yet as he did not inhabit any part of the house, it could not be laid to be his dwelling-house; though if he had it would have been otherwise.

But there may be such a severance by lease of part of § 20. a mansion as that it shall no longer be the subject of burg- Severance by lary.

lease.

1 Hawk. ch. 38.

If A. have a shop which is parcel of his house, the indict- Burnet's MS.83, ment must be for breaking the mansion-house of A.; but if 1 Hale, 557, 8, Kel. 83, 4. it be severed by lease, and have no communication with the 4 Blac. Com. dwelling-house, by having a different entrance; then unless 225, 6. the lessee or his servant sleep there usually or often, no burg- s. 16. lary can be committed in it. For it is not the mansion-house of A., being severed by the lease; nor can it be said to be the mansion-house of the lessee, if neither he nor his family ever dwell there, or if their sleeping there be only casual or temporary.

Kelyng has put the case of a man having a dwelling-house, Kel. 83, 4 who lets a cellar and a chamber in the house to J. S., reserving the rest of his house for his own dwelling; and the only passage to the cellar is out of a street; and if the cellar be broken open in the night, whether it be burglary? And he thinks not, because it was severed by the lease, and had no communication with the rest of the house. But this may well be questioned; for the cellar which was before parcel of the house is no more severed by the lease therefrom than the chamber which was also let to J. S.; and Kelyng admits that if the chamber were broken open it would be burglary, and should be laid to be the mansion of the owner; there being but one common entrance to him and the lodger. But if the cellar alone had been let, then clearly no burglary could have been committed in it. And this distinction seems fully to have been adopted in a late case of Gibson

and

Rex v. Gibson

and others,

Kingston Lent

A s. 1785.

MS. Gould and
Buller Js.

1 Leach, 396.
S. C.

Ch. XV. § 20. and others; who were indicted and convicted of a burglary In whose man- in the dwelling-house of Thomas Smith, and stealing the sion. Inmates. goods of John Hill. Smith was the owner of a house at Esher, in which he resided, and to which house there was a shop adjoining built close to the house; but there was no internal communication between the house and the shop; and no person lay in the shop; and the only door to the shop was in the court-yard before the house and the shop, which yard was inclosed by a brick wall 3 feet high, including both the house and shop. Smith let the shop together with some apartments in the house to John Hill from year to year at a rent. There was only one common door to the house, which communicated as well to Smith's as to Hill's apartments. A gate or wicket fastened by a latch in the wall of the courtyard next the road served as a communication both to the house and shop. The burglary was committed in the shop. And upon objection that that could not be said to be the dwelling-house of Smith, the point was referred to the Judges, who in Easter term 1785 were all of opinion that the indictment was well laid in describing it to be the dwelling-house of Smith, who inhabited in one part; and there being but one outer door; especially as it was within one curtilage or fence: and that the shop being let with a part of the house inhabited by Hill, still continued to be part of the dwelling-house of Smith, although there were no internal communication between them. But it was admitted that if the shop had been let by itself, Hill not dwelling therein, burglary could not have been committed in it, for then it would have been severed from the house.

21. Night.

1 Hale, 551, 5.

4 Blac. Com.

224, 6.

5. In the Night.

The breaking and entering must be in the night; though they need not be both in the same night: for if thieves MS. Burnet, 82. break a hole in the house one night, to the intent to enter another night, and commit felony, and they accordingly do so through the hole they so made the night before, this seems to be burglary; for the breaking and entering were both in the night; and, says Lord Hale, it shall be supposed, that they broke and entered in the night when they entered; for the breaking makes not the burglary till the entry. If this were the true legal supposition, which however by no means seems necessary to constitute that case burglary, it might have been

applied

applied not improperly to the case before put by the same Ch. XV. § 21. author where the breaking was in the day-time, and the en- In the night. tering at night; which he says will not be burglary, upon the

authority of Crompton from 8 Ed. 2.; though it is observ-Crompton, 33. a. able that the resolution there only was, that if thieves enter in by night at an hole in the wall which was there before, it is not burglary: but it does not appear who made the hole, much less that it was made by the thieves themselves with intent to enter more securely at night. As to what shall be 4 Blac.Com.224. 1 Hale, 550. accounted night for this purpose; anciently the day was ac- Sum. 79. counted to begin only from sun-rising, and to end immedi- 3 Inst. 63. 1 Hawk. ch. 38. ately upon sun-set: but it is now generally agreed, that if s. 2. 1 Bac. there be day-light enough begun or left either by the light Abr. 541. of the sun or twilight, whereby the countenance of a person may be reasonably discerned, it is no burglary: but that this does not extend to moon-light; for then many midnight burglaries would go unpunished, And besides, the malignity of the offence does not so properly arise, as Mr. Justice Blackstone observes, from its being done in the dark, as at the dead of night, when all the creation except beasts of prey are at rest, when sleep has disarmed the owner, and rendered his castle defenceless.

6. As to the intent.

§ 22. 3 Inst. 65. Kel.

1 And. 115.

Com. 228.

The breaking and entry of the mansion in the night must be with intent to commit some felony therein, as murder, 1 Hale, 559.561. larceny, &c., whether the felonious intent be executed or 67. 1 Bac. Abr. not. For if the intention of the entry be either laid in the 543. Hutt. 20. indictment or appear upon the evidence to be only to com- 1 Hawk. ch. 38. mit some trespass, as to beat any person in the house, it s. 18. 4 Blac. will not be burglary; and this although killing or murder Staundf. 30. may be the consequence of such beating. For though in Sum. 79. case of homicide, if one premeditately intend to beat another very severely, and execute his purpose in such a manner as must necessarily breed danger, and death ensue in consequence, though beyond his original intent; he shall be said in law to have intended all the consequences, and therefore to have intended the felony; yet that intention is a deduction in law from the felonious act, and may be supposed to originate subsequent to the first purpose in the heat of blood consequent upon the execution of it. But in burglary it must be found that the entry was for a felonious purpose; Vide Kel. 47. though