Allegation as to the man sion or dwelling-house. Statement of the name of the owner of the dwellinghouse. so that it shews the fact to have been committed in the night. (i) The offence must be laid, as we have seen, to have been committed in a mansion-house, or dwelling-house, the term dwelling-house being that more usually adopted in modern practice. (k) It would not be sufficient to lay it generally as having been committed in a house. (1) Where the burglary has been committed in an outhouse, which by law is considered as part of the dwelling-house, it must be laid as having been done in the dwelling-house, or in a stable, barn, &c. part of the dwelling-house; either of which statements may be adopted. (m) The parish in which the dwelling-house is laid to be situate must be correctly stated, as a variance in this respect will be fatal. (n) The allegation of the offence having been committed in a mansion-house, must be understood, however, as confined to burglaries in private houses; for though it has been quaintly observed, that a church is domus mansionalis Dei, (0) it is the better opinion that the indictment, in the case of a burglary committed in a church, need not proceed upon such a supposition, but will be more properly framed, according to the truth of the fact, by stating the offence to have been committed in the parish church of the parish to which it belongs. (p) It is necessary to state the name of the owner of the dwelling-house, in the indictment, with accuracy, and such (i) 2 East. P. C. c. 15. s. 24. p. 513. (m) Garland's case, 1 Leach 144. p. 513. where the indictment was for breaking and entering the stable of J. B. part of his dwelling-house. (n) 2 Stark. Crim. Plead. 415. note (c) (0) 3 Inst. 64. (p) 1 Hale 556. 1 Hawk. P. C. c. 38. s. 17. 2 East. P. C. c. 15. s. 24. p. 512. certainty to a common intent, as is, in general, necessary in the description of a party who has sustained an injury. (q) In a case where the indictment stated the burglary to have been committed in the shop cujusdam Ricardi, without mentioning the sirname of the owner, it was doubted whether it was good. (r) And where the name of the owner of the dwelling-house was altogether mistaken, as where the indictment laid the burglary to have been committed in the dwelling-house of John Snoxall, and it appeared that it was not the dwelling-house of John Snoxall, it was holden that the prisoner could not be found guilty either of the burglary, or of stealing to the amount of forty shillings in the dwelling-house: it being essential in both cases, to state in the indictment the name of the person in whose house the offences are committed. (s) And where the prisoner was indicted for stealing in the dwelling-house of Sarah Lunns, and it appeared in evidence that her name was Sarah London; the variance was holden to be fatal to the capital part of the indictment. (t) entered. The terms of art usually expressed by the averment Terms of art "feloniously and burglariously did break and enter" are ously, and -burglariessentially necessary to the indictment. The word burgla- broke and riously cannot be expressed by any other word or circumlocution; and the averment that the prisoner broke and entered is necessary, because a breaking without an entering, or an entering without a breaking, will not make burglary. (u) (4) 2 East. P. C. c. 15. s. 24. p. 513. 1 Chit. Crim. Law 215, et sequ. 3 Chit. Crim. L. 1096. Ante, 927, et sequ. (r) Cole's case, Moor 466. 1 Hale 558. 2 East. P. C. c. 15. s. 24. p. 513. In Moor it is said to have been holden good; but this is not mentioned by Lord Hale. In 3 Chit. Crim. L. 1098, it is said that there can be little doubt that at the present day such an omission (8) White's case, O. B. 1783. 1 (t) Woodward's case, O. B. 1785. cor. Adair, Serjeant, Recorder. 1 Leach 253, note (a). (u) 1 Hale 550. 2 East. P. C. c. 15. s. 24. p. 512. Ante, 901. With respect to the intent, it is clear that it must be expressly alleged in the indictment, and proved agreeably to the fact, either that the party committed a felony in the dwelling-house, or that he broke and entered the house with intent to commit a felony therein. (x) And it seems to be the better course first to lay the intent, and then state the particular felony, if a felony has actually been committed. For though where an indictment charges that the prisoner "the dwelling-house of A. B., feloniously and burglariously "did break and enter and the goods of A. B. then and "there feloniously and burglariously did steal, take, &c." it comprises two offences, namely, burglary and larceny; and the prisoner may therefore be acquitted of the burglary, and found guilty only of the larceny; yet it seems he cannot be found guilty of the burglary if he be acquitted of the larceny, on the ground that when the offence is so charged the larceny constitutes part of the burglary. (y) It has therefore been recommended, by high authority, as the better way, to charge the prisoner with breaking, &c. with intent feloniously and burglariously to steal, &c. and to add also the particular felony; as upon such an indictment he may be convicted of a simple burglary, though acquitted of the felony. (%) It is also said, by the same high authority, that three offences may be joined in the same indictment; namely, burglary, larceny, and felony upon the statute of 5 and 6 E. VI. c. 9. for robbing a person in a dwelling-house, the owner, his wife, &c. then being within, whether waking or sleeping. And that upon such indictment, which need not conclude against the form of the statute, the prisoner may be convicted of the burglary, and found not guilty of felony; or convicted of the felony upon the statute 5 and 6 E. VI. c. 9. and found not guilty of the burglary; in either of which cases he would be ousted of his clergy; or he may be convicted. (x) 1 Hale 550. Ante, 942, et sequ. (y) 1 Hale 559, 560. (x) 1 Hale 560. of the larceny only, and found not guilty of the burglary and the felony upon the statute; in which case he would be entitled to his clergy. (z) ferent intents. We have already seen that different intents may be stated of laying dif in the indictment; and such a mode of proceeding, by laying the same fact in different ways, may be rendered expedient by the particular circumstances of the case. (a) dercomb and It has been decided in an important case, in which the Of the plea of point was fully considered, that an acquittal upon an indict- autrefois acquit. ment for burglary, in breaking and entering a dwelling-house Rex v. Vanand stealing goods, cannot be pleaded in bar to an indictment for burglary in the same dwelling-house, and on the same night, with intent to steal; on the ground that the several offences described in the two indictments could not be said to be the same. The indictment charged the prisoners with burglariously breaking and entering the dwelling-house of Merial Nevill and Ann Nevill, with intent to steal their goods; and they pleaded a plea of auterfois acquit upon a former indictment, which indictment charged them with burglariously breaking and entering the dwelling-house of Merial Nevill and Ann Nevill, and stealing goods of Merial Nevill, goods of Ann Nevill, and goods of one Susanna Gibbs. The plea concluded with averring the identity of the persons of the prisoners, and that the burglary was the same identical and individual burglary. To this plea there was a demurrer, which was argued before all the Judges of England; and their opinion was afterwards delivered by Mr. Justice Buller at the Old Bailey June Session 1796. The learned judge said that it had been contended on behalf of the prisoners, that as the dwelling-house in which, and the time when, the burglary was charged to have been (2) 1 Hale 561. 2 East. P. C. c. (a) Ante, 946, 947. 15. s. 27. p. 516. Abbott. A prisoner in tent to steal, cannot plead in bar an ac quittal upon an indictment burglary for the same which charged a breaking and entering the same dwellinghouse and stealing there. committed were precisely the same both in the indictment for the burglary and stealing the goods, on which they were acquitted, and in the indictment for the burglary with intent to steal the goods, which was then depending; the offence charged in both was, in contemplation of law, the same offence, and that of course the acquittal on the former indictment was a bar to all further proceeding on the latter. He then proceeded, "It is quite clear, that at the "time the felony was committed, there was only one act "done, namely, the breaking the dwelling-house. But "this fact alone will not decide this case; for burglary is of "two sorts; first, breaking and entering a dwelling-house "in the night time, and stealing goods therein; secondly, "breaking and entering a dwelling-house in the night time, "with intent to commit a felony, although the meditated "felony be not in fact committed. The circumstance of "breaking and entering the house is common and essential "to both the species of this offence: but it does not of itself constitute the crime in either of them; for it is "necessary, to the completion of burglary, that there should "not only be a breaking and entering, but the breaking "and entering must be accompanied with a felony actually "committed, or intended to be committed; and these two "offences are so distinct in their nature, that evidence "of one of them will not support an indictment for the "other. (c) In the present case, therefore, evidence of the (c) It is well established that an indictment for breaking and entering, &c. and stealing goods, will not be supported by evidence of a breaking and entering, &c. with intent to steal them. But it has been supposed, that an indictment for breaking and entering, &c. with intent to steal, will be supported by evidence of breaking and entering, &c. and an actual stealing. Ante, 945, 950. If this be so, the report of the judgment delivered by Mr. J. Buller, as here given, states the point too largely; as it seems to go to the extent of saying that evidence of a breaking and entering, and a felony actually committed will not support an indictment for a breaking and entering, &c., and a felony intended to be committed. In 2 East. P. C. c. 15. s. 29. p. 520. the learned author observes upon this case, and says “ Quære, whether the |