¶1Tbe words “tbe dwelling-house of Oscar,’C Ferris,” mean tbat tbe building broken and entered was bis place of residence, and tbat be occupied it as such at tbe time of tbe breaking and entry. An averment in this form is good in tbe common law indictment for burglary and larceny, and under tbe English statute, and tbe same is true under our statute. E. S., cb. 165, secs. 9 and 10.
¶2Under section 9, no doubt, for tbe higher offense of breaking and entering a dwelling bouse in tbe night time, with intent to commit tbe crime of murder, rape, larceny &c., tbe offender being armed with a dangerous weapon at tbe time of such breaking and entering, or so arming himself in such bouse, or making an actual assault on any person lawfully therein, tbe indictment must charge tbat there was some person then lawfully in tbe bouse at tbe time. There being some person lawfully therein is, by tbe statute, one of tbe facts necessary to constitute tbe offense. If a thief, breaking and entering to steal armed with a dangerous weapon, or so arming himself in tbe bouse, should find there another thief who bad broken and entered for tbe same purpose, or, not being armed, should assault such other thief — or if two thieves should break and enter together armed, or arming themselves with dangerous weapons, or, being without such weapons, should fall out, and one make an assault upon tbe other, there being no other person in tbe bouse *602—it is clear tbat tbe offense described by section 9 would not be complete, and the offender could not be punished under it. But in section 10 the condition, “ any person then being lawfully therein,” is omitted. This indictment was drawn, and the plaintiffs in error tried, convicted and sentenced, under that section. Under that section the indictment is good. Such an indictment need not negative the being armed or arming with a dangerous weapon, or the mating of an assault upon a person lawfully in the house, necessary to constitute the higher offense named in the preceding section. Rex v. Pearce, Russ. & Ryan’s C. C., 174; Rex v. Robinson, id., 320.
¶3By the Court.— Convictions affirmed.