An indictment was held insufficient for burglary, which stated the fact to have been committed in the night, without expressing the particular hour, and the prisoner was found guilty of simple felony only. K. and Waddington, at the Lancaster lent assizes, 1771.

ITH INTENT TO COMMIT A FELONY, WHETHER, &c....It is clear that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. 4 Bl. Com. 227

And it is the same whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. Ibid.

And therefore such a breach and entry of a house as has been before described. by night, with intent to commit a robbery, a murder, a rape or any other felony, is burglary; whether the thing be actually perpetrated or not.

Ibid

Nor does it make any difference, whether the offence were felony at common law, or only created so by statute: since that statute, which makes an offence felony, gives it incidentally all the properties of a felony at common law. Ibid.

here a man commits burglary, and at the same time steals goods out of the house, it is also larceny; and if he be acquitted of the burglary, he may notwithstanding be indicted of the larceny; for they are several offences, though committed at the same time. And burglary may be where there is no larceny, and larceny may be where there is no burglary. 2 Hale 246.

II. HOW IT IS PUNISHED.

Formerly the benefit of clergy was taken away both from the principals and accessories before the fact in burglary. (1 Rev. Code, p. 45, 46.) By the penitentiary law of 1796, which went into operation on the 'wenty fifth of March, 1800, every person convicted of robbery or burglary, or as accessory thereto before the fact, shall restore the thing robbed or taken to the owner, or pay the full value thereof, and be sentenced to confinement in the penitentiary, for a period not less than three, nor more than ten years. (See 1 Rev. Code, p. 356, sect. 5.) But, by act of 1803, which commenced the first of April, 1804, the punishment of burglary is made not less than five nor more than ten years. See 2 Rev. Code, P. 70.

The penitentiary law extends to free persons only.

(A) Warrant to apprehend a burglar.

County, to wit:

To the constable of

Whereas A J, of the county of

that on the

day of

aforesaid, merchant, hath this day made information and complaint upon oath before me. J P, one of the commonwealth's justices of the peace for the said county, in the night, the dwelling house of him the said A J, at the county aforesaid, was feloniously and bur glariously broken open, and one gold watch, of the value of one hundred d liars, of the goods and chattels of him the said A J, feloniously and burglariously stolen, taken and carried away from thence, and

that he hath just cause to suspect, and doth suspect, that A O, of in the county of labourer, the said felony and burglary did commit. These are therefore, in the name of the commonwealth, to command and require you, that immediately upon sight hereof you do apprehend the said A O, and bring him before me, or some other justice of the peace for this county, to answer the premises, and to be further dealt with according to law. Herein fail not. Given under my hand and seal, &c.

If the person charged upon oath with the burglary is not well and certainly known, it is usual in the warrant to insert a clause directing pursuit by hue and cry: this may come in after the words, "to command and require you," thus; and each of you to search diligently for the said A O, within your several precincts, and likewise to make hue and cry after him, from town to town, and from county to county, as well by horsemen as footmen; and if you shall find the said A O, that then you apprehend him, and carry him before some justice of the peace for the county where he shall be taken, and there deliver him, together with this warrant. The said AO is a person (here describe his stature, age, apparel, &c. particularly.)

The justice before whom the suspected party is brought, may summon witnesses to give evidence against him, if he finds it neces

sary.

(B) Summons for a witness.

To A C, or any other constable of

County, to wit:

county.

You are hereby commanded, in the name of the commonwealth, to summon ÁA W to come before me, at in this county, tomorrow, by o'clock in the forenoon, to testify and the truth to say, concerning a certain burglary and felony, suspected to be done by A O, of &c. and that you then and there attend with this warrant, to shew how you have executed the same. Given under my hand, &c.

If upon the examination of the felon and the witnesses, it should appear proper to the justice to call a court for the further examination of the criminal, he should take the recognizance of the witnesses to appear at such court, and commit the offender to jail.

For the form of the recognizance and warrant to summon a court, see title "CRIMINALS."

To the sheriff of

(C) Mittimus.

county, or to the keeper of the jail of the said county.

County, to wit:

These are to command and require you, in the name of the commonwealth, to receive into your jail the body of A O, late of the county of labourer, taken and brought before me, for felony and burglary by him committed, in breaking and entering the dwelling hous (or if any other house, describe the kind particularly) of A J, of the county of in the night time, at

merchant, on the

day of

o'clock of the said night, and feloniously

taking and carrying away from thence one gold watch, of the value of one hundred dollars, of the goods and chattels of him the said A J, in the said dwelling house then and there being, wherewith the said AO stands charged before me (or, and the suid A O having before me confessed the same) you are hereby commanded to keep the said A O safely in your jail and custody, without bail or mainprize, until be shall thence be discharged by due course of law. Given under my hand and seal, &c.

day of

(D) Indictment for proper burglary.

County, to wit:

in the year

The jurors for the commonwealth, upon their oath do present, that AO, late of the county of aforesaid, labourer, on the at the hour of one, in the night of the same day, with force and arms, at the county aforesaid, the dwelling house of A J, feloniously and burglariously did break and enter, with intent him the said A J, of his goods in the same dwell. ing house then being, feloniously and burglariously to spoil and rob, and the same goods feloniously and burglariously to steal, take and carry away, against the peace and dignity of the commonwealth.

As it is difficult to establish an intention to commit a felony without proof of some actual felonious deed, the foregoing precedent is seldom used. The following one will be found more generally useful.

(E) Indictment for burglary and larceny.

County, to wit:

in the year

The jurors for the commonwealth, upon their oath do present, that A O, late of the county of aforesaid, labourer, on the day of between the hours of ten and eleven in the night of the same day, with force and arms, at the county aforesaid, the dwelling house of A J, feloniously and burglariously did break and enter, and one gold watch, of the value of one hundred dollars, in the same dwelling house then and there feloniously and burglariously did steal, take and carry away, against the peace and dignity of the commonwealth.

BURNING.

I. Of burning houses, considered as offences against the laws of this commonwealth. II. Of arson, or burning, at the common law.

I. OF BURNING HOUSES, CONSIDERED AS OFFENCES AGAINST THE LAWS OF THIS COMMONWEALTH.

1. "EVERY person, that shall at any time, either in the night or the day, maliciously, unlawfully and willingly, burn any house or houses whatsoever, or shall comfort, aid, abet, assist, counsel, hire, or command, any person or persons to commit any of the said offences, being thereof convicted or attainted," &c. shall suffer death without benefit of clergy. 1 Rev. Code, p. 206.

2. By the penitentiary law (1 Rev. Code, p. 356, sect. 4.) arson, at common law, is particularly enumerated. It would seem, therefore, that if the offence be not arson at common law (or houses burning in a town, see the next paragraph) the punishment must be regulated by the act of 1799 (1 Rev. Code, p. 402.) which fixes the period of confinement, in cases not clergyable by the laws in force when the penitentiary system went into operation, and which are not provided for by the original law of 1796, at not less than one nor more than ten years.

3. But by act of 1804 (2 Rev. Code, p. 80, sect. 7.) "every person who shall at any time, either in the night or the day, maliciously, unlawfully and willingly, burn or set fire to any house or houses whatsoever, in a town, or shall aid, abet, assist, counsel, hire or command, any person or persons to commit any of the said offences, being thereof lawfully convicted, and either of the said offences shall actually have been committed, shall be deemed guilty of felony, and shall suffer death as a felon."

4. By the same law (2 Rev. Code, p. 80, 81, sect. 9.) "every person who shall at any time, either in the night or the day, maliciously, unlawfully and willingly, burn or set fire to any barn, stable, cornhouse, tobacco-house, stack of wheat, barley, oats, corn, or other grain, or any stack of fodder, straw or hay; or shall aid, abet, assist, counsel, hire or command, any person or persons to commit any of the said offences, being thereof lawfully convicted, and either of the said offences shall actually have been committed, shall be deemed

guilty of a misdemeanor, and shall be sentenced to undergo a cons finement in the penitentiary, for any time not less than two nor more than five years; and shall moreover pay the full value of the property burnt or destroyed to the owner," &c.

પ

5. By act of 1808 (2 Rev. Code, p. 166.) " if any slave or slaves, at any time hereafter, shall wilfully and maliciously burn or set fire to any barn, stable, corn-house, or other house, or shall advise, counsel, aid, abet or assist, any slave or slaves, free negro or mulatto, to commit either of the said offences, being thereof lawfully convicted, if the amount of the burning be of the value of ten dollars, he, she or they, shall be deemed guilty of felony, and shall suffer death, as is provided in other cases of felony.

6. Sect. 2, of the above law. "If any slave or slaves shall wilfully and maliciously burn or set fire to any stack or cock of wheat, barley, oats, corn, or other grain, or to any stack or cock of hay, straw or fodder, or shall advise, counsel, aid, abet or assist, any slave or slaves, free negro or mulatto, to commit either of the offences in this section mentioned, being thereof lawfully convicted, he, she or they, shall be deemed guilty of felony, and shall be burnt in the hand, and receive on their back any number of lashes not exceeding thirty-nine, as the court in their discretion may think fit to inflict. ' 2 Rev. Code, p. 166-7.

7. "The wilful burning of any court-house, or county or public prison, or the office of the clerk of any court within this commonwealth," was declared to be felony without benefit of clergy, in the principals and accessories before the fact. (See 1 Rev. Code, p. 45, 45.) But see ante. No. 2.

II. OF ARSON, OR BURNING, AT THE COMMON LAW.

1. Arson (from ardendo is the malicious and wilful burning of the house or out-house of another man. 4 Bl Com. 230.

And this was felony, by the common law, whether the offence be committed in the night or the day. Haw. B. 1. c. 39.

MALICIOUS AND WILFUL.....For if it be done by mischance or negligence, it is no felony 3 Inst. 67.

Yet if a man, maliciously intending only to burn one person's house, happens thereby to burn the house of another, it is certain that he may be indicted as having maliciously burned the house of that other; for where a felonious design against one man misseth its aim, and takes effect upon another, it shall have the like construction, as if it had been levelled against him who suffers by it. Haw. B. 1. c. 39.

sect. 5.

BURNING....Neither a bare intention to burn a house, nor even an actual attempt to do it by putting fire to a part of a house, will amount to felony, if no part of it be burned; but if any part of the house be burnt, the offender is guilty of felony. notwithstanding the fire afterwards be put out, or go out of itself. Ibid. sect. 4. 4 Bl. Cəm. 222.

THE HOUSE....Not only a mansion-house, and the principal parts thereof, but also any other house, and the out buildings, as barns and stables adjoining thereto; and also barns fuil of corn, whether they be adjoining to any house or not, are so far secured by law, that the