where the injury to it would necessarily violate the rights of its owner1. But in a recent case a man, who had in a fit of drunken spite cruelly kicked and stabbed a horse which was his own, was indicted (under 24 and 25 Vict. c. 97, s. 40) for having feloniously and maliciously wounded it. It was urged that he was only liable to be convicted of a petty offence under the Act for the prevention of cruelty to animals3. But it was held by Lord Russell, C.J. (after consultation with Grantham, J.), that he might be convicted of the felony. This extension of the idea of malice to cases of mere cruelty, in which a sentient creature is hurt but the rights of no human being are infringed, affords a striking instance of the advance which has taken place during the past century in the current ethical conception of man's duties towards the lower animals.

12 East's Pleas of the Crown, 1072—1074.

2 Reg. v. Parry (Chester Assizes), The Times, July 27, 1900. Cf. Reg. v. Welch, L. R. 1 Q. B. D. 23.

$ 12 and 13 Vict. c. 92, s. 2.

CHAPTER XII.

BURGLARY AND HOUSEBREAKING.

IN consequence of the peculiar sanctity which, as we have seen1, the common law attaches to even the humblest dwelling-house, capital punishment was inflicted upon those guilty of the nocturnal violation of any habitation, even when little or no injury had been done thereby to the fabric The crime of Burglary is committed when a dwelling-house or a church (or, as the old books used to add, a walled town), is broken and entered at night with the intention of committing some felony therein. Let us consider successively the five points in this definition; the place, the breaking, the entry, the time and the intention.

(1) The Place. That the walls of a town should have been protected by as stringent penaltics as those which safeguarded the townsmen's own homes, will not be surprising to any one who is familiar with the Roman treatment of city-walls as res sanctae, or who has learned from a visit to Berwick, or York, or Chester, the importance of the defence, against private as well as public violence, which a medieval town derived from its circumvallation". And it was natural enough that a reverence for religious edifices should lead mediæval criminal lawyers to extend also to churches the

1 Supra, p. 161.

See Stephen, Dig. Cr. Law, Arts. 341-346.

3 Spelman's Glossary, tit. "Burglary."

Just. Inst. II. 1. 10.

• The original importance of this form of the crime is illustrated by the very derivation of the word "burglary," which Prof. Skeat traces to the old French bourg (town), and lere (robber).

full protection of the penalties which guarded a dwellinghouse-an extension for which Lord Coke offers the verbal justification that "a church is the dwelling-house of God1."

Much technicality has arisen in determining what buildings are to be regarded as "houses," and when a house is to be regarded as being "dwelt" in. Clearly a house must be something more than a mere tent or booth, it must be a permanent structure. But it is not necessary that it should consist of the whole of such a structure. Thus one building may contain several dwelling-houses; each single set of chambers, or even each single room, in it may be a separate dwelling-house. The test of separateness is merely whether or not there is internal communication between this part of the building and the rest of it. If any one occupier's part has no internal communication with other parts, it becomes a separate house. Conversely, a house is regarded as including its accessory buildings that stand outside its own walls, if only they (a) stand in the same curtilage with the house, and (b) are occupied along with it, and (c) communicate with it either directly or at least by a covered and enclosed passage. So to "break" an area gate, for the purpose of gaining admittance to the house through an open door in the area, is not a breaking of the house itself".

5

But a building, although it be a "house," is not to be regarded as being "dwelt" in unless some person habitually sleeps there, and sleeps in it as his home. He must thus be a member of the household that occupies it'—whether as

13 Coke Inst. 64.

2 1 Hawk. c. 38, s. 35.

3 As in colleges; 3 Coke Inst. 65. Rex v. Egginton, 2 B. and P. 508. The "curtilage" is the ground immediately round the house, such as passes upon a grant of the messuage without being expressly mentioned. 624 and 25 Vict. c. 96, s. 53.

7 Rex v. Davis, R. and R. 322 (K. S. C. 160).

8 Rex v. Martin, R. and R. 108 (K. S. C. 161).

9 Rex v. Harris, Leach 701 (K. S. C. 163).

himself the possessor of the house or only as one of that possessor's family or servants-and not a mere temporary caretaker, whose home the place is not. But though he must sleep there habitually, he need not do so invariably; i.e., his residence may at intervals be interrupted. If a householder goes away from home, but with an animus revertendi, his house is still considered to be a dwelling, although not a single person remains in it1.

(2) The Breaking. This may be either actual or constructive. It is considered as "actual" whenever the intruder displaces any part of the building or of its closed fastenings. It is therefore not necessary that there should be an actual fracture of anything. Drawing a bolt, or turning a key, or even lifting a latch will suffice. And, similarly, if a window is closed, even though its sash be kept in position by nothing but the pulley-weight, merely to move the sash will amount to a "breaking." So, too, will the raising of a cellar flap even though it be held down by nothing more than its intrinsic weight; or the turning of a swing window. Yet if a window or door be already partly open, it will not be a "breaking" to open it still further and gain admittance thereby. For when a householder leaves a window or a door partly open, he gives, as it were, a visible invitation to enter; but the fact of his having left it merely unbolted is not thus conspicuous to the passers-by.

But besides these so-called "actual" breakings, in which the intruder himself displaces the fastenings of the house, the definition of burglary is interpreted as extending even to cases in which the breaking is a purely "constructive" one. Such cases may arise (a) where the displacement has

1 Rex v. Nutbrown, Foster 76 (K. S. C. 164); and see Popham 52 (K. S. C. 164).

2 3 Coke Inst. 64.

3 Rex v. Haines, R. and R. 451 (K. S. C. 167).

4 Rex v. Russell, 1 Moody 377.

© Rex v. Smith, 1 Moody 178 (K. S. C. 168).

5 Rex v. Hall, R. and R. 355.

been effected by some authorised person (some innocent member of the household), or even (b) where there has been no displacement at all.

In (a) the burglar, by force or fraud, gets some inmate of the house to open it; but, though it is thus opened to him by consent, that consent is deprived of all its ordinary legal effect by the way in which it was obtained. Thus if an intending burglar gains admittance to the house by threats of violence, which put the inmates into such fear that they open the door to him, there is a constructive breaking1. Or, again, if, as is more common in modern times, he rings the bell like an ordinary visitor, and then, when the door is accordingly opened to him, he comes in on pretence of wanting to speak to some member of the household, this is held to be as true a breaking as if he had himself opened the door. "For the law will not endure to have its justice defeated by such evasions?." But if a pretence thus attempted should fail to deceive, (so that, though the door be opened to the evil-doer, it is opened solely for the purpose of entrapping him), the law does not regard such an opening as being in any way his act, and therefore does not hold it to be, even "constructively," a breaking3.

We have said that (b) a constructive breaking may also occur even though nothing whatever be displaced. This occurs where the burglar comes into the house by some aperture which, by actual necessity, is permanently left open. There is thus a sufficient "breaking" if the thief comes down into the house by the chimney; though there would be no

Rex v. Swallow, 2 Russ. Cr. (6th ed.) 8.

21 Hawkins P. C. 287.

3 Reg. v. Johnson, C. and M. 218 (K. S. C. 171).

4 Rex v. Brice, R. and R. 450. Cf. the case tried at Cambridge by Sir Matthew Hale, 1 Hale P. C. 552; and an American case (The State v. Donohoe, 36 Alabama 271). In the latter, the chimney proved to be of such inadequate dimensions that the burglar stuck fast in it, and it had to be pulled down to extricate him.