the same day, with force and arms, at the parish (c) aforesaid, in the county atoresaid, the dwelling-house (d) of one C. D. there situate, feloniously (e) and burglariously (e) did break and enter (e), with intent (f) the goods and chattels of the said C. D. in the said dwelling-house then and there being, then and there feioniously and burglariously to steal, take, and carry away, and one gold watch, of the value of thirty pounds (describe the property and value of each article according to the fuct) of the goods and chattels of (g) the said C. D. in the said dwelling-house then and there being found, then and there feloniously and ' burglariously did steal, take, and carry away, against the peace, &c. 76. Indictment for burglary, alleging a breaking in, with intent, an actual felony committed, and a breaking out, against the stat. 12 Ann. c. 7. (h). (Commencement as in pr. 75.) about the hour of twelve (c) The parish should be correctly stated; a variance would be fatal.. (d) The house must be described as the dwelling-house of the real tenant, see p. 73. and the st. 12 Aun. c. 7. and this is the proper description, though part only of the house be separately occupied. The situation is material. Burglary may also be committed in a church or chapel. The personal property must be described as in larciny, where an actual stealing is averred. If a mere intent to steal be alleged, the ownership should still be correctly averred, p. 194. (e) These words are essential, see p. 73. and so are the words, dwelling house and in the night. The means of breaking and entering are immaterial. (f) The intention is included in the words feloniously and bur glariously, &c. but it must be further shewn, that the breaking and entry was done to commit a felony, which felony should be specified. But an averment that he did then and there commit a specific felony is a sufficient averment of the intention. A sta tutable felony will support the indictment. 1 Haw. c. 38. s. 38. (g) The ownership must be correctly stated, see p. 189. 194. (h) Upon an indictment thus framed, the defendant may be found guilty of the burglary, if either the breaking in with intent in the night time be proved, or the entry with intent, &c. and the breaking out in the night time, under the statute, or if the actual larciny, and either the breaking in or out in the night time be in the night of the same day, with force and arms, at the parish aforesaid, in the county aforesaid, the dwellinghouse of one C. D. there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said C. D. in the said dwelltag, then and there being, then and there feloniously and burgianously to steal, take, and carry away; and then and there, with force and arms, one diamond necklace, of the value of forty pounds, of the goods and chattels of the said C. D. in the same dwelling-house, then and there being found, then and there feloniously and burglariously did steal, take, and carry away; and so then and there being in the said dwelling-house, and having committed the said felony as aforesaid, did then and there, against the form of the statute (i) in such case made and provided, break the said dwelling-house to get out of the same, against the peace, &c. 77. Indictment for breaking a house in the day-time (no person being therein), and stealing goods of the value of five shillings (k). That A. B. late of, &c. labourer, on, &c. about the hour of eleven in the forenoon of the same day, with force and arms, at the parish aforesaid, in the county aforesaid, the dwelling-house of C. D. there situate, feloniously did break and enter, (no person in the same dwelling-house then and there being,) and two pewter dishes, of the value of seven shillings (here mention all the goods stolen,) of the goods and chattels of the said C. D. in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry away, against the peace of our said lord the king, his crown and dignity. proved. So though the evidence does not warrant a conviction of the burglary, he may be convicted of stealing in the dwelling-house to the amount of 40 shillings, or of the simple Jarciny, see p. 37. plea of auter fois acquit and verdict, and Leach, 102. (i) Since the stat. is declaratory, the averment does not seem to be necessary, but it is not improper, see p. 210, n.(a). (h) See 39 Eliz. c. 15. Hale, 525. 78. Indictment for arson (1). (Commencement as in pr. 1.) a certain house (m), of one (1) Arson was felony at common law, 3 Ins. 66.; the wilful burning of dwelling-houses, or barns containing corn or grain, was ousted of clergy by stat. 23 H. 8. c. 1. and 25 H. 8.; but these stat. were repealed by the stat. Ed. 6. c. 12. S. 10. The stat. 4 and 5 Ph. & M. c. 4. excludes from clergy those who shall maliciously command, hire, or counsel any person or persons, wilfully to burn any dwelling-house, or any part thereof, or any barn then having corn or grain in the same. And this stat. has been holden, by necessary implication, to take away clergy from the principal offender. Poulter's case, 11 Rep. 35. Fost. 330. 2 flale, 347. 1 Hale, 572. The stat. 9 G. 1. c. 22. made perpetual by stat. 31 G. 2. c. 42. excludes from clergy any person who shall be lawfully convicted of setting fire to any house, barn, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood. By the stat. 9 G. 3. c. 29. s. 2. if any person shall wilfully or maliciously burn, or set fire to, any wind saw-mill, or other wind-mill, or any watermill, or other mill, such person being lawfully convicted thereof, shall be adjudged guilty of felony, without benefit of clergy. The above form will suffice for an indictment under this act, if the word windmill be substituted for house.' The prosecution must be commenced within 18 months after the commission of the offence, sec. 4. By the stat. 43 G. 3. c. 58. s. 1. if any person shall wilfully, maliciously, and unlawfully, set fire to any house, baru, granary, hop, oast, malthouse, stable, coach-house, out-house, mill, warehouse, or shop, which shall then be in possession of the person or persons so setting fire to the same, or of any body corporate, with intent thereby to injure or defraud his majesty, or any of his majesty's subjects, or any body corporate, then, and in every such case, the person or persons so offending, their counsellors, aiders, and abettors, knowing of, and being privy to such offence, shall be felons, and shall suffer death without benefit of clergy. (m) Arson, at common law, is an offence against the habitation, but it might be committed, not only by burning the dwelling-house, but also the out-houses, which were parcel of the dwelling-house. 1 Hale, 570. 3 Ius. 67. 69. 1 Haw. c. 39. s. 1, 2. and it is not necessary to allege the burning of the dwelling-house, but only of the house simply. 1 Hale, 567. 570. 3 Ins. 67. 1 Haw. c. 39. s. 1. In Glandfield's EE C. D. (2) there situate, feloniously (o), wilfully, and maliciously, did set fire to, and the same house then and there, by such firing as aforesaid, feloniously, wilfully, and ma case, East. P. C. 1034. it was holden, that outhouses generally was a sufficient description under 9 G. 1. c. 22. without shewing of what kind. (2) The allegation of ownership is material, for it must appear, that the offence was committed against the property of another, and this allegation must be distinctly proved. Pedley's case, Leach, 277. Breeme's case, Leach, 261. Spalding's case, Leach, 258. Holmes's case, Cro. Car. 376. 3 Ins. 66. In the case of the Rickmans, East. P. C. 1034. the defendants were charged with the arson of a certain house situate in the parish of Ellingham, &c, and, after conviction, all the judges held that the conviction was wrong, because the indictment did not state the ownership. It appeared in that case, that the house belonged to the parish, and that they suffered one Tho. mas Early to live in it, but in whom the legal estate vested was unknown; and the judges held, that it might have been laid to be the property of the overseers, or of persons unknown. was Where there is a doubt in which of several persons the property vests, it should be differently described in different counts, in order to obviate any objection on the score of variance. If the occupation be merely permissive, as by a pauper of a house belonging to the parish, the property cannot be laid in him, vide supra, Rickinan's case; and if such pauper, or a mere servant, burn the house which he inhabits, eveu exclusively, he is guilty of arson. Gowen's case, East. P. C. 1027. Otherwise, if the defendant has possession under a lease for years, Holmes's case, Cro. Car. 376. 3 Ins. 66. 1 Hale, 568, Breeme's case, Leach, 261. Pedley's case, Leach, 277. or as mortgagor, Spalding's case, Leach, 258. But it seems, that if the mere reversion be in the defendant, who has not possession, he may be guilty of the offence by burning the house. Harris's case, Fost. 113. East. P. C. 1023. In Spalding's, Breeme's, and Pedley's cases, it was holden, that, in respect of the property against which the offence was mitted, the stat. 9 G. 1. c. 22. did not alter the common law. The offence is against the possession, and the house, &c. should be described as belonging to the person who has possession coupled with an inte-D rest; for if the occupation be merely permissive, the house ought not to be described as the occupier's. See Rickman's and Gowen's case, supra. Glandfield's case, East P. C. 1034. it appeared, that the outhouses burnt, including the com In liciously did burn and (p) consume, against the form of the statute, &c. and against the peace, &c. brewhouse, were the property of Blanche Silk, widow, as also was the dwelling-house in which she lived with her son J. S.; that the son alone occupied the outhouses, with the exception of the brewhouse, on his own account, but without any particular agreement with his mother; that she repaired the dwellinghouse and outhouses, and that they jointly contributed to the ingredients for the beer, which was brewed in the brewhouse, and which was used in the family. Mr. J. Heath held, that the brewhouse ought to be laid as in their joint occupation, but the other outhouses as in the occupation of the son; and upon the indictment so drawn, the prisoner was convicted and executed. If a man, by setting fire to his own house, endanger others which are contiguous, he may be indicted for the misdemeanor, and it is unnecessary in such case to aver an intention to burn the contiguous houses. 1 Hale, 568. Cro. Car. 377. Schofield's case, Cald. 397. But if the defendant set fire to his own house with intent to defraud the insurers, and the house of his neighbour be burnt in consequence, the offence will amount to arson. Per Grose, J. in giving judgment in Probert's case, East. P. C. 1030. And in Isaac's case, East. P. C. 1031. where the offence committed under such circuinstances, was laid as a misdemeanor, Buller, J. directed an acquittal on the ground, that the misdemeanor merged in the felony. And if the defendant set fire to his own house, with intent to burn his neighbour's house, and the latter be burnt in consequence, the offence is as much arson, as if the defendant had immediately set fire to his neighbour's house; therefore if A. intending to burn B.'s house, set fire to his own, and B.'s is burnt in consequence, the indictment may charge A. directly with the wilful and malicious burning of B.'s house. 1 Hale, 569. East. P. C, 1034. (0) The words maliciously and wilfully, are descriptive of the offence as ousted of clergy. by the stat. 4 and 5 Ph. & M. c. 4. but they are no part of the description under the stat. 9 G. 1. c. 22. though under the latter statute, to oust the offender of clergy, it must appear that the act was wilful and malicious, and it seems to be safer so to aver it. See 1 Hale, 567. 569. 3 Ins. 67. East. P. C. 1033. (p) This averment, under the stat. 9 G. 1. is usual, but does not seem to be essential, since the offence is complete by setting the house on fire. |