Ch. XV. § 22. though if a felony be actually committed, that is primâ facie pregnant evidence of such an intent, unless the contrary Intent. Easter Sess. 1687. per Wright, Herbert, Atkins, Powell, & Holt. 1 Show. 53. Rex v. Knight and Roffey, MS. recover tea which appear. A servant who was entrusted by his master sells goods and conceals the money in the house; and after he is discharged from, the service, breaks the house, and takes the money which he had concealed. This was holden to be no burglary, because the first taking of the money was not felony. The prisoners were indicted for feloniously and burglariGould & Buller ously breaking and entering the dwelling-house of Mary Js. & MS. Jud. Snelling at East Grinstead in the night of the 14th NovemBreaking and eneber 1781, with intent to steal the goods of Leonard Hawtering a house in the night-time to kins, then and there being in the said dwelling-house. It had been seized; appeared that L. Hawkins, being an excise officer, had seized held no burglary, 17 bags of tea on the same month at a Mrs. Tilt's, in a shop being intended for entered in the name of Smith, as being there without a the benefit of the supposed owner. legal permit, and had removed the same to Mrs. Snelling's Qu. If the indictment had laid at East Grinstead, where Hawkins lodged. The tea the the intent to be to witnesses said they supposed to belong to Smith: and that rescue the goods on the night of the 14th November the prisoners and divers seized, which is made felony by other persons broke open the house of Mary Snelling with intent to take this tea. It was not proved that Smith was in company with them; but the witnesses swore that they supposed the fact was committed either in company with or by the procurement of Smith. The jury were directed to find the prisoners guilty, on the point being reserved: and being also directed to find as a fact with what intent the prisoners broke and entered the house; they found that they intended to take the goods on the behalf of Smith. In Easter term 22 G. 3. 1782. following all the Judges held that the indictment was not statute. East. term, supported; there being no intention to steal, however outrageous the behaviour of the prisoners was in thus endeavouring to get back the goods for Smith. But if the indictment had been for breaking the house with intent feloniously to rescue goods seized, &c., that being made felony by the stat. 19 G. 2. c. 34. the Chief Baron and some of the other Judges held that it would have been burglary. But even in that case it was agreed that some evidence must be given on the part of the prosecutor to shew that the goods were uncustomed, in order to throw the proof upon the prisoners that the duty was paid: but being found in oil-cases or in great great quantities in an unentered place would have been suf- Ch. XV. § 22. ficient for that purpose. Intent. The above opinion is in opposition to what was for- What felony. merly supposed by some, that the felony intended must be of such a fact as was felony at common law, and not such as Dalt. ch. 151. s. 5. 1664. Kel. 30. ante, 488. was since made so by statute; and Lord Hale inclines to that 1 Hale, 562. opinion. And therefore, says he, it has been doubted whether the breaking of a house in the night with intent to commit a rape be burglary or not. Crompton thinking it is not, Crompton, 32. because made felony by stat. Westm. 2. c. 34.; and Dalton thinking it would be burglary, because rape was felony by Staundf. 81. the common law; which Lord Hale thinks the more warrantable opinion. And indeed the matter is since put out R. v. Locost and of all doubt in regard to the particular case of rape, by the Villers, O. B. case of the King v. Locost and Villers, and the King v. Gray; Rex v. Gray, wherein it was clearly holden that the breaking, &c. the 1 Stra. 481. house with such an intent was burglary. But still the general point remained in the same doubt as before: for rape was established to be felony at common law. Hawkins 1 Hawk. ch. 38. however, and after him Mr. Justice Blackstone, carry the s. 19. 4 Blac. rule further; and though the former seems to found himself chiefly upon the mistaken notion that rape was only made felony by statute, yet the reason assigned by both is general: and according to them it makes no difference whether the offence intended were felony at common law, or only created so by statute; because wherever a statute makes any offence felony, it incidentally gives it all the properties of a felony at common law. And it has been shewn before in the case of Ante, 510. Vide R.v.Wells, Knight, that the same reasoning was adopted by several of East. term 1786. the Judges, though the point was not immediately before Ante, 414. them in judgment. Trial. Com. 228. post. Indictment. $23. Trial. I do not find any thing worthy of special notice in regard to the trial of burglaries in general; it is governed by the ordinary rules which prevail in cases of felony. But I shall hereafter have occasion to refer to the stats. 25 Hen. 8. c. 3. Vi. tit. Larceny. and 5 & 6 Ed. 6. c. 10. with respect to the trial and punishment of those who are taken with goods in one county, which were obtained by burglary in another: and also to the stat. 10 Geo. 3. c. 48. concerning the receivers of certain goods obtained in the same manner. Indictment, Ch. XV. § 24. $24. Indictment, Appeal, Evidence, and Verdict. The indictment for burglary may run thus: that J. S. on Indictment, &c. such a day, in the night of the same day, with force and 1 Hale, 549. per tot. 1 Hawk. ch. 38. arms, the dwelling-house of A. B. feloniously and burglariously broke and entered, and then and there such and such things of the goods and chattels of the same A. B., in the same house then being, feloniously and burglariously did steal, take, and carry away; or, if no theft were actually committed, then, with intent the goods and chattels of the said A. B., in the same house then being, feloniously and burglariously to steal, take, and carry away; or, with intent the said A. B. there feloniously to kill, &c.; or both the felonious intent and the actual felony may be charged. 1 Hale, 550. 4 Co. 39. b. 5 Co. 121. b. Breaking and entering. Ante, s. 2. 7. 1 Hale, 550. Mansion. 1 Hale, 550. 556. s. 10. 4 Blac. Com. 224, 5. The offence must not only be laid to be done feloniously but also burglariously; which is a term of art, and cannot be expressed by any other word or circumlocution. It must be stated that the offender broke and entered the house; a breaking without an entry, or vice versâ, is insufficient. It must be laid to be done in a mansion.or dwelling-house; 1 Hawk. ch. 38. and therefore if it be only said to be in the house of such an one, it is not sufficient. But this rule extends only to the case of burglary in a private house; for if, as has been hinted before, the offence may be committed by breaking open a Ante, 487.491. church, or the gates or walls of a town, it seems agreed to be more proper to lay the indictment according to the truth of the fact; and therefore stating that the prisoner feloniously and burglariously broke and entered, &c. the parish church of D., &c. is sufficient. Where the burglary is in any out-house, which by law is considered part of the dwelling-house, it must still be laid to be done in the dwelling-house; or at least, as in Dobbs's case after mentioned, in the stable, &c. alleging it to be part of the dwelling-house and in either case, the jury should find the fact, Garland's case, that it is parcel of the dwelling-house; according to the determination in Garland's case before mentioned. ante, 493. MS. Tracy, 79. 84. Moor, 661. Post. s. 30. But the indictment need not allege that any person was in the house; for this clause was inserted in after the stat. 23 H. 8. which takes away clergy where any person in the house was put in fear: and now the stat. 18 Eliz. takes away clergy in all cases of burglary. dence, Sc. White's case, (new edit. 286.) It is necessary to ascertain to whom the mansion belongs, Ch. XV. § 24. and to state that with accuracy in the indictment; and there- Indictment, Evifore, where the prisoner was indicted for burglary in the dwelling-house of John Snoxall, and stealing therein goods Whose mansion. the property of Ann Lock; and it appeared that it was not O. B. Feb. 1783. the dwelling-house of J. S. Buller and Grose Justices held Leach, 216. that the prisoner could not be found guilty either of the burglary, or stealing to the amount of 40s. in the dwellinghouse; for it is essential in both cases to state in the indict- W.Woodward's ment the name of the person in whose house the offence was committed. In Cole's case it was stated to be the shop of Cole's case, one Richard (leaving a blank for the surname); on 1 Hale, 558. which account it was doubted by B. R. whether it could be supported; though the Reporter says it was holden good. case, O. B. 1785. S. P. Moor, 466. Vide 1 Hale, 549. case, The indictment must not only state the fact to have been In the night. done in the night of such a day; but it ought also to express 2 Hale, 179. at about what hour of the night it happened: though it does not seem necessary that the evidence should strictly correspond with the latter allegation. In Waddington's case the Waddington's indictment for burglary alleged the fact to have been com- Lancaster Lent mitted in the night, but did not express at or about what Ass. 1771. Burn's Just. tit. hour it was done. Gould J. held the indictment insufficient as for a burglary, and directed the prisoner to be found guilty of simple larceny only. He said that as the rule now established was, that a burglary could not be committed during the twilight, it was therefore necessary to specify the hour in order that the fact might appear upon the face of the indictment to have been done between the twilight of the evening and that of the morning. Burglary. $25. Intent. Further it must be alleged and proved, either that a felony was committed in the dwelling-house, or that the party 1 Hale, 550, 9. broke and entered with intent to commit some felony within the same. Forster's MS. Joseph Dobbs was indicted for a burglary in breaking and Dobbs's case, entering the stable of James Bayley, part of his dwelling- Ass. 30 July house, in the night, with a felonious intent to kill and destroy 1770. Serjt. a gelding of one A. B. there being. It appeared that the vile 1 Hale, 561. gelding was to have run for 40 guineas, and that the prisoner cut the sinews of his fore-leg to prevent his running, in consequence of which he died. Parker Ch. B. ordered him to be acquitted; for his intention was not to commit the 3 U felony Ch. XV. § 25. felony by killing and destroying the horse, but a trespass only Indictment, Evi- to prevent his running; and therefore no burglary. But the dence, &c. prisoner was again indicted for killing the horse, and capitally convicted. O. B. Oct. 1700. Serjt. Forster's 519. But whatever be the felony really intended, the same must be laid in the indictment and proved agreeably to the fact. One was indicted for burglary and stealing goods. It MS. & vide post. appeared that there were no goods stolen, but a burglary with intent to steal; and not being so laid, as it ought to have been, Lord C. J. Holt directed the prisoner to be acquitted. R. v. Vander comb and Abbot. MS. Burnet, 83. 1 Hale, 561. post. s. 26. Rex v. Locost and Villers, Kel. 30. 1 Hale, 560. Jenks's case, And so if it be alleged that the entry was with intent to commit one sort of felony, and the fact appear to be that it was with intent to commit another; that is not sufficient. Though if the intended felony were actually committed, it is enough to lay the breaking and entering to be with intent to do so. So where the indictment was for breaking, &c. the house and before all of J. Davis, with intent to steal the goods of J. Wakelin, in the Judges in the said house being, and there was no such person who Mich. T. follow- had goods in the house: but J. W. was put by mistake for J. and MS. Jud. J. D.; the prisoner was entitled to an acquittal: and it was (2 Leach, 896. ruled that the words "off. W." could not be rejected as S. C.) ing, MS. Buller surplusage; for the words were sensible and material; it being material to lay truly the property in the goods; and without such words the description of the offence would be incomplete. This it seems is not like the case of laying a robbery in the dwelling-house of A., which turns out to be the dwelling-house of B.; because that circumstance is fectly immaterial in robbery, which is ousted of clergy geneVi. tit. Larceny, rally; as was determined in Pye's case. Nor is this like Mors. 168. and In- ris's case, where the name was so introduced as to make the dictment-Surplusage. sentence insensible. 1 Hale, 560. Ante, s. 6. per But it seems in all cases sufficient, where a felony has been actually committed, to allege the commission of such felony; for, as Lord Hale observes, that is sufficient evidence of the intention. The stat. 12 Ann. c. 7. seems to have been drawn with that view. It is, besides, a general rule, that a man who commits one sort of felony, in attempting to commit another, cannot excuse himself upon the ground that |