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&c. is superadded, which is no part of the definition of the offence at common law. It may be necessary, therefore, in some cases still to indict for arson of a house as at common law.--Arch. 259. But see the 25th section above cited (by which it is made unnecessary that there should be malice conceived against the owner of the property).

3. Negligently setting Fire to a House, &c. by Servants.

By 6 Ann. c. 31, s. 3, and 14 Geo. III. c. 78, s. 84, "if any servant through negligence or carelessness shall fire or cause to be fired any dwelling-house, or out-houses, or houses or other buildings, to be thereof convicted on the oath of one witness before two or more justices, he shall forfeit £100, to be distributed by the churchwardens, &c. among the sufferers by such fire, in such proportions as to the said churchwardens shall seem just, and in case of default be committed to gaol or the house of correction for eighteen months, to be kept to hard labour."

4. Burglary.

This offence consists (at common law) in breaking and entering into the dwelling-house of another by night with intent to commit a felony therein.--3 Inst. 63; 4 Bl. Com. 224.

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And by 7 & 8 Geo. IV. c. 29, s. 11, it is declared, "that if

any person shall enter the dwelling-house of another with "intent to commit felony, or being in such dwelling-house "commit any felony, and shall in either case break out of "the said dwelling-house in the night-time, such person "shall be deemed guilty of burglary."

The time must be night; for in the day-time there is no burglary.

If there be day-light or crepusculum enough, left or begun, to discern a man's face withal, it is no burglary, though the sun be set or not risen.-3 Inst. 63; 1 Hale, 547-566; 1 Hawk. c. 38; 4 Bl. C. 224.

But this does not extend to moon-light.—Ibid.

In the case of a private house, the house must be a dwelling-house to constitute a burglary.-Ibid.

And not a distant barn, ware-house or the like, nor an uninhabited house. - Ibid.

Nor a shop not used as a dwelling-house.-Ibid,

Nor a mere tent or booth erected in a market or fair.Ibid.

But burglary may be committed in a house left only for a short season animo revertendi.--Ibid.

Or a chamber in a college or inn of court.-Ibid.
Or a mere room or lodging separately occupied.-Ibid.
Or a church.-Ibid.

Or the gate or wall of a town.-Ibid.

So burglary may be committed in a barn, stable or outhouse, parcel of the dwelling-house and within the same common fence or curtilage.-Ibid.

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But by 7 & 8 Geo. 4, c. 29, s. 13, it is provided, "that "no building, although within the same curtilage with the dwelling-house and occupied therewith, shall be deemed "to be part of such dwelling-house for the purpose of bur"glary or for any of the purposes aforesaid, unless there "shall be a communication between such building and "dwelling-house, either immediate, or by means of a covered "and inclosed passage leading from the one to the other." A man cannot be guilty of burglary in his own house.— 2 East, P. C. 52.

If a servant designedly lets in a robber, it is burglary in both.-1 Hale, 553.

To constitute burglarious breaking, the breaking or taking the glass out of a window is sufficient.-1 Hale, 552. Or picking a lock (whether of an outer or inner door), or opening it with a false key.-Ibid. 552, 553.

Or lifting a latch.—Ibid. 552.

Or knocking at a door and rushing in when opened, or obtaining admission by any artifice.-1 Hawk. c. 38, s. 5. But if the door or window be left open, it is no burglary. -Ry. & Mo. 178.

To constitute burglarious entering, the putting a hand in

to draw out goods, or a pistol to demand money, is sufficient.-1 Hale, 555.

There must be a felonious intent, otherwise it is only a trespass.-1 Haw. c. 38, s. 18.

But an intent to commit any felony, whether at common law or created by statute, is (by the better opinion) sufficient. Ibid. & 1 Hale, 562.

Burglary is a felony at common law.-4 Bl. Com. 228. By 7 & 8 Geo. IV. c. 29, s. 11, "every person convicted of burglary shall suffer death as a felon;" and by sects. 61 and 4, every accessary before the fact is liable to the same punishment as the principal, and every accessary after the fact to imprisonment not exceeding two years, with or without hard labour, in the common gaol or house of correction, and also to solitary confinement, at discretion of the court, for the whole or any portion or portions of such imprisonment.

5. House-breaking.

By 7 & 8 Geo. IV. c. 29, s. 12, "if any person shall "break and enter any dwelling-house and steal therein any "chattel, money or valuable security to any value whatever," (see "valuable security" defined, post, 168,) every such offender, being convicted thereof, shall suffer death as a felon.

But by 3 & 4 Will. IV. c. 44, so much of the 7 & 8 Geo. IV. c. 29, as inflicts the punishment of death in this case, is, from 1 Jan. 1834, repealed; and it is provided that every person convicted thereof as principals, or accessaries before the fact, shall be liable to be transported for life or for any term not less than seven years, as the court shall adjudge, and previously to transportation shall be liable to imprisonment with or without hard labour in the common gaol or house of correction, or to be confined in the penitentiary for any term not exceeding four years, or shall be liable to be imprisoned, with or without hard labour in the common gaol or house of correction, for any term not exceeding four years nor less than one year.

By 7 & 8 Geo. IV. c. 29, ss. 61 and 4, every accessary after the fact to this offence is liable to imprisonment for any term not exceeding two years, with or without hard labour, in the common gaol or house of correction, and also to solitary confinement, at discretion of the court, for the whole or any portion or portions of such imprisonment. The provision of the 13th sect. (v. sup. 163,) applies to this offence.

6. Breaking and Entering a detached Building within the Curtilage and Stealing therein.

By 7 & 8 Geo. IV. c. 29, s. 14, "if any person shall "break and enter any building and steal therein any "chattel, money or valuable security," (see "valuable security" defined, post, 168,)" such building being within "the curtilage of a dwelling-house and occupied therewith, "but not being part thereof according to the provision "hereinbefore mentioned" (viz. in the 13th sect., vide sup. 163), every such offender, being convicted thereof either upon an indictment for the same offence or upon an indictment for burglary, house-breaking, or stealing to the value of £5 in a dwelling-house, containing a separate count for such offence, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and if a male, to be once, twice or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment.

By sect. 4 the imprisonment may be with or without hard labour, in the common gaol or house of correction, and also with solitary confinement, at the discretion of the court, for the whole or any portion or portions of such imprisonment.

CHAPTER XV.

OF LARCENY AND OTHER OFFENCES AGAINST PROPERTY.

LARCENY (or theft) comprises both simple larceny, and larceny with aggravation, such as robbery, &c.-4 Bl. C. 229.

1. Simple Larceny.

Simple larceny consists in the taking and carrying away of the personal goods of another with intent to deprive the owner of them.

It is a felony at common law.-4 Bl. C. 237.

There must be a taking; and therefore where the possession is not changed, as if a wife carry away the goods of the husband, or a joint tenant or tenant in common of a chattel carry it away from his co-tenant, there is no larceny.-1 Hale, 513.

But the taking may be either actual or constructive.— Arch. 168.

Actual taking is where they are taken out of the owner's possession against his will or without his consent.-Ibid. 169.

Constructive taking is a taking upon a delivery of the owner, but where be has so delivered them as not to divest himself of the legal possession, or where the delivery is obtained from him by fraud and with intent to steal.-Ibid.

If the delivery by the owner is under such circumstances that the possession in law remains in him, as where he delivers to his servant to take care of the goods, and the servant embezzles them, this is larceny.-1 Hale, 506.

But a servant embezzling goods is not guilty of larceny if the goods had never been in the master's possession, but

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