Kassian v. R. Crim. App. 243-A-70; 11/1/71; Kwikima Ag J.

 Kassian v. R. Crim. App. 243-A-70; 11/1/71; Kwikima Ag J.

The appellant was charged, inter alia on a count of burglary contrary to section 294(1) of the Penal Code. He was convicted. The magistrate found that the appellant broke into the complainant’s house at 2.00 a.m. He further found that upon gaining entry, the appellant assaulted the complainant. Nothing was stolen

            Held: (1) “While breaking into a dwelling house at 2.00 a. m. may be highly reprehensible and even culpable, in the absence of proven intent to commit a felony, it cannot automatically amount to a burglary. I am confirmed in this view by Bannerman J., as he then was, in the case of Martin Senzota v. R., 1967 H. C. D. 80 when he ruled, ‘Breaking must be unlawful and without legal right to do the act which constitutes the breaking. The intention to commit a felony must be present at the time of the entry.’ In this case the prosecution neither alleged in the charge that the appellant broke into the dwelling in order to steal, nor did they bring forward any evidence tending to show that the appellant intended to commit the felony of theft when he broke into the dwelling. Unless there is evidence to show which crime the intruder intended, it was impossible to tell what mischief he was up to. In this case, where was no evidence to exclude the possibility that the appellant merely intended to assault the complainant as he did”. (2) Conviction quashed.