dwelling-house. For no distant barn, warehouse, or the like, are under the same privileges, nor looked upon as a man's castle of defence: nor is a breaking open of houses wherein no man resides, and which therefore for the time being are not mansion-houses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath only left a short season, animo revertendi, is the object of burglary, though no one be in it at the time of the fact committed. (a) And if the barn, stable, or warehouse, be parcel of the mansion-house and within the same common fence, (y) though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall. (z) A chamber in a college or an inn of court, where each inhabitant hath a distinct property, is, to all other purposes as well as this, the mansion-house of the owner. (a) So also is a room or lodging, in any private house, the mansion for the time being of the lodger; if the owner doth not himself dwell in the house, or if he and the lodger enter by different outward doors. But if the owner himself lies in the house, and hath but one outward door at which he and his lodgers enter, such lodgers seem only to be inmates, and all their apartments to be parcel of the one dwelling-house of the owner. (b) Thus too the house of a corporation, inhabited in separate apartments by the officers of the body corporate, is the mansion-house of the corporation, and not of the respective officers. (c) But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie there; it is no dwelling-house, nor [226] can burglary be committed therein for by the lease it is severed from the rest of the house, and therefore is not the dwelling-house of him who occupies the other part; neither can I be said to dwell therein, when I never lie there. (d) Neither can burglary be committed in a tent or booth erected in a market or fair; though the owner may lodge therein; (e) for the law regards thus highly nothing but permanent edifices; a house or church, the wall or gate of a town; and though it may be the choice of the owner to lodge in so fragile a tenement, yet his lodging there no more makes it burglary to break it open, than it would be to uncover a tilted waggon in the same circumstances. 3. As to the manner of committing burglary; there must be both a breaking and an entry to complete it. But they need not be both done at once for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars. (ƒ) There must in general be an actual breaking; not a mere legal clausum fregit (by leaping over in visible ideal boundaries, which may constitute a civil trespass), but a substantial and forcible irruption. As at least by breaking, or taking out the glass of, or otherwise opening, a window: picking a lock, or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner has provided. But if a person leaves his doors or windows open, it is his own folly and neg x 1 Hal. P. C. 566. Fost. 77. z 1 Hal. P. C. 558. 1 Hawk. P. O. 104. b Kel. 84. 1 Hal. P. C. 556. e 1 Hawk. P. C. 104. 10 y K. v. Garland, P. 16 Geo. III. by all the judges. (10) So to push open massive doors which shut by their own weight, is burglarious, though there is no actual fastening. 2 East P. C. 487. Pulling down the sash of a window is a breaking though it has no fastening, and is only kept in its place by the pulley weight; it is equally a breaking, although there is an outer shutter which is not put to. Russ. & R. C. C. 451. And where a window opens upon hinges, and is fastened by a wedge, so that pushing against it will ligence, and if a man enters therein it is no burglary: yet, if he afterwards unlocks an inner or chamber door, it is so. (g)" But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit. (h) So also to knock at the door, and upon opening it to rush in, with a felonious intent or under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially [227] under the cloak of legal process. (i) And so, if a servant opens and enters his master's chamber-door with a felonious design; or if any other person lodging in the same house or in a public inn, opens and enters another's door with such evil intent, it is burglary. Nay, if the servant conspires with a robber and lets him into the house by night, this is burglary in both; (k) for the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease, rather aggravates than extenuates the guilt. As for the entry, any the least degree of it with any part of the body, or with an instrument held in the hand, is sufficient; as to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries. (1) 12 The entry may be before the breaking, as well as after for by statute 12 Ann. c. 7. if a person enters into the dwelling-house of another, without breaking in, either by day or by night, with intent to commit felony, or being in such a house, shall commit any felony; and shall in g lbid. i1 Hawk. P. C. 102. h 1 Hawk P. C. 102. 1 Hal. P. C. 552. k Stra. 881. 1 Hal. P. C. 553. 1 Hawk. P. C. 103. 11 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108. : open it, forcing it open by pushing against it is sufficient to constitute a breaking. Russ. & Ry. C. C. 355. But where the prisoner broke out of a cellar by lifting up a heavy flap, by which the cellar was closed on the outside next the street; the flap was not bolted, but it had bolts. Six of the learned judges were of opinion that there was a sufficient breaking to constitute burglary; the remaining six were of a contrary opinion. Russ. & Ry. OC. 157. And it is to be observed, that even when the first entry is a mere trespass, being as per janua aperta, if the thief afterwards breaks open an inner room, he will be guilty of burglary, 1 Hale, 553: and this may be done by a servant who sleeps in an adjacent room, unlatching his master's door, and entering his apartment, with intent to kill him. I Hale, 544. But lord Hale doubts whether a guest at an inn is guilty of burglary by rising in the night, opening his own door, and stealing goods from other rooms. 1 Hale, 554. And it seems certain that breaking open a chest or trunk, is not in itself burglarious, Fost. 103, 9.; and according to the better opinion, the same principle applies to cupboards, presses, and other fixtures, which, though attached to the freehold, are intended only the better to supply the place of moveable depositories. Fost. 109. (11 It will be burglary to unlatch an inner door with a felonious intent, and whatever would be a breaking of an outer door, will also be a breaking of an inner door to constitute burglary. See 2 East. P. C. 488. But it does not seem to be a burglary to break the doors of cupboards, presses, and closets. Ibid. (12) So if the prisoner breaks open a shop window, and with his hand takes out goods, the offence is complete. Fost. 107. Russ. & Ry. C. C. 499. S. P. Introducing the hand between the glass of an outer window and an inner shutter is sufficient entry to constitute burglary. Russ. & Ry. C. C. 341. And where several having broken open a house, and attempting to enter, are opposed by the owner, and in making a pass at him the hand of one of the party is within the threshold, he will be guilty of burglary. 1 Hale, 553. If, however, an instrument has been thrust into the window, not for the purpose of taking out property, but only calculated to form the aperture, this will not be regarded as an entry, 1 Leach, 406.; or if a house be broken open, and the owner through the fear occasioned by the circumstance, throw out his money, the burglary will not be completed. 1 Hale, 555. It seems doubtful whether shooting through a window is sufficient, by the entry of the shot discharged; but it seems the better opinion that it is; as in this case, a felony by killing is as much attempted, as in the introduction of an instrument, a felony by stealing is attempted. 1 Hale, 555. Hawk. b. 1. c. 58. s. 7. See 4 Camp. 220. 1 Stark. Chitty. 58. the night break out of the same, this is declared to be burglary; there hav ing before been different opinions concerning it: lord Bacon (m) holding the affirmative, and sir Matthew Hale (n) the negative. But it is universally agreed, that there must be both a breaking, either in fact or by implication, and also an entry, in order to complete the burglary. 4. As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. 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. 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 [228] other felony, is burglary; whether the thing be actually perpetrated or not. 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. (0) 13 Thus much for the nature of burglary; which is a felony at common law, but within the benefit of clergy. The statutes however of 1 Edw. VI. c. 12. and 18 Eliz. c. 7. take away clergy from the principals, and that of 3 & 4 W. & M. c. 9., from all abettors and accessories before the fact. (p) And in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime. (q) CHAP. XVII. OF OFFENCES AGAINST PRIVATE THE next, and last species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larciny and malicious mischief : and one, that is equally injurious to the rights of property, but attended with no act of violence; which is the crime of forgery. Of these three in their order. I. Larciny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larciny, or plain theft unaccompanied with any other atrocious circumstances; and mixed or compound larciny, which also includes in it the aggravation of a taking from one's house or person. n 1 Hal. P. C. 554. o 1 Hawk. P. C. 105. m Elm. 65. p.Burglary in any house belonging to the plate glass company, with intent to steal the stock or utensils, is by statute 13 Geo. III. c. 38. declared to be single felony, and punished with transportation for seven q Pott. Antiq. b. 1. c. 26. years. (13) But if a servant, intrusted by his master to sell goods, receives money to his use, conceals it in the house instead of paying it over, and after his dismissal, breaks the house and steals it, the entry is not burglarious, because there was no felony in the original taking. 1 Show. 53. And even where prisoners were proved to have broken open a house in the night time, to recover teas seized for want of a legal permit, for the use of the person from whom they were taken, an indictment for burglary with intent to steal, was holden not to be supported. 2 East. P. C. 510. As to the offence of having house-breaking implements in possession, see ante, 170. n. 19. vagrant act. And, first, of simple larciny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larciny; when of goods to that value, or under, is petit larciny; offences which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larciny in general; and then shall observe the different degrees of punishment inflicted on its two several branches. Simple larciny then is "the felonious taking, and carrying away, of the "personal goods of another." This offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum, [230] and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his present use, seems to be the only offence of this kind incident to such a state. tionably, in social communities, when property is established, the necessity whereof we have formerly seen, (a) any violation of that property is subject to be punished by the laws of society; though how far that punishment shall extend, is matter of considerable doubt. At present we will examine the nature of theft, or larciny, as laid down in the foregoing definition. But unques I. It must be a taking.' This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the of a See Book II. p. 8, &c. (1) The cases upon this important requisite of the offence of larceny are so numerous, and the distinctions so subtle, that it will be necessary to go into considerable detail to give a complete view of the law upon the subject. See in general, 3 Chit. Crit. L. 2 ed. 917 to 924. 1st. When offender lawfully acquired the possession of goods, but under a bare charge, the owner still retaining his property in them, the offender will be guilty of larceny at common law in embezzling them. Thus in addition to the instances put by the learned author, of the butler, the shepherd, and guest at an inn, if a master deliver property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or to get change, or deposit with a banker, the servant will be guilty of felony in applying it to his own use, for it still remains in the constructive possession of its owner. 2 Leach, 870. 942.; and see 2 East P. C. 563. see vide East P. C. 562. R. & R. C. C. 215. 4 Taunt. 258. S. C. If a banker's clerk is sent to the money-room to bring cash for a particular purpose, and he takes the opportunity of secreting some for his own use, 1 Leach, 344. he is guilty of larceny, and see 1 Leach, 251. Kel. 33. Cowp. 294. And if several persons play together at cards, and deposit money for that purpose, not parting with their property therein, and one sweep it all away, and take it to himself, he will be guilty of theft, if the jury find that he acted with a felonious design. 1 Leach, 870. Cald. 295. So if there be a plan to cheat a man of his property, under colour of a bet, and he parts with the possession only, to deposit as a stake with one of the confederates; the taking by such confederate is felonious. Russ. & Ry. C. C. 413. And if a bag of wheat be delivered to a warehouseman for safe custody, and he take the wheat out of the bag, and dispose of it, it is larceny. Rus. & Ry. C. C. 337. And when a banker's clerk took notes from the till, under colour of a check from a third person, which check he obtained by having entered a fictitious balance in the books in favour of that person, it was held he was guilty of felony; the fraudulent obtaining the check being nothing more than mere machinery to effect his purpose. 4 Taunt. 304. R. & R. C. C. 221. S. C. 2 Leach, C. C. 1083. And where one employed as a clerk in the day-time, but not residing in the house, embezzles a bill of exchange, which he received from his master in the usual course of business, with directions to transmit it by the post to a correspondent, it was held larceny. 2 East P. C. 565. And see 2 Chit. C. L. 2 ed. 917. b. And where goods have not been actually reduced into the owner's possession, yet if he has entrusted another to deliver them to his servant, and they are delivered accordingly, and the servant embezzle them, he will be guilty of larceny: as where a corn factor having purchased a cargo of oats on board a ship, sent his servant with his barge to receive part of the oats in loose bulk, and the servant ordered some of them to be put into sacks, which he afterwards embezzled, this was holden larceny. 2 East P. C. 1798. 2 Leach, 825. The learned commentator has already noticed the 21 Hen. VIII. c. 7. making the embezzlement of goods above the value of forty shillings, felony, when intrusted to a servant by his masThe act extends only to such persons who were servants to the owner of the goods, both at the time of their delivery, and when they were stolen. 1 Hawk. c. 33. s. 12. 2 East P. C. ter. fender, upon trust, can ground a larciny. As if A lends B a horse, and he rides away with him; or, if I send goods by a carrier, and he carries 562. To bring the case within the act, the goods must have been delivered to the servant to keep for the master, and the words "kept to the use of the master," imply that they are to be returned to the master. 2 East P. C. 562. The act does not extend to goods, the actual property of which were not in the master at the time, and therefore, it is said, that if the property be changed, as by melting the money down, or malting corn, and then it be taken away, it is not within the statute. 1 Hawk. c. 33. s. 15. 2 East P. C. 563. sed quære. See 1 Hawk. c. 33. s. 15. The act only extends to where the owner has actually had them in his possession, and not where his servant has merely received them to his use. No wasting or consuming the goods is within the act, however wilful. Hawk. b. 1. c. 33. s. 14. 2dly. Where the offender unlawfully acquired the possession of goods as by fraud or force, &c. with intent to steal them, the owner still retaining his property in them, such an offender will be guilty of larceny in embezzling them. Therefore in addition to the instances mentioned in the text, hiring a horse on pretence of taking a journey and immediately selling it, is larceny, because the jury found the defendant acted animo furandi, in making the contract, and the parting with the possession had not changed the nature of the property. 2 East P. C. 685. 1 Leach, 212.; and see 2 Leach. 420. 2 East P. C. 691. So obtaining a horse by pretending another person wanted to hire it to go to B., but in truth with intent to steal it, and not going to B., but taking the horse elsewhere and selling it, is larceny. 1 Leach, 409. 2 East P. C. 689. So where the prisoner intending to steal the mail bags from a post-office, procured them to be let down to him by a string from the window of the post-office, under pretence that he was the mail-guard, he was held guilty of larceny. East P. C. 603. It is larceny for a person hired for the special purpose of driving sheep to a fair, to convert them to his own use, he having the intention so to do at the time of receiving them from the owner. 1 Ry. & M. C. C. 87. And where a man ordered a pair of candlesticks from a silversmith, to be paid for on delivery, to be sent to his lodgings, whither they were sent accordingly, with a bill of parcels, by a servant, and the prisoner contriving to send the servant back under some pretence, kept the goods, it was holden larceny, cited in 2 Leach, 420. And if a sale of goods is not completed, and the pretended purchaser absconds with them, and from the first his intention was to defraud, he is guilty of stealing. 1 Leach, 92.; and to obtain money from another by ring-dropping, is a similar offence, if there was an original design to steal, 1 Leach, 238. 2 Leach, 572.; and where the owner of goods sends them by a servant, to be delivered to A., and B. pretending to be A., obtains them from him, B. is guilty of larceny. 2 East P. C. 673. So where the prisoner pretending to be the servant of a person who had bought a chest of tea, deposited at the E. I. company's warehouse, got a request paper and permit for the chest, and took it away with the assent of a person in the company's service who had the charge of it; this was held felony. R. & Ry. C. Č. 165. So to obtain a bill of exchange from an indorsee, under a pretence of getting it discounted, is felony, if the jury find that the party did not intend to leave the bill in the possession of the defendant, previous to receiving the money to be obtained on his credit, and that he undertook to discount with intent to convert it to his own use, 1 Leach, 294; and it seems, that if a person procure possession of a house with an intent to steal the lead affixed to it, he may be indicted on the 4 Geo. II. c. 32. for the statutable larceny. 2 Leach, 850. In all these cases the defendant's original design in obtaining the goods was felonious, and the owner never parted with his property therein, for where either is not the case there can be no larceny, as will appear from the following instances:-Thus where a house was burning, and a neighbour took some of the goods, apparently to save them from the flames, and afterwards converted them to his own use, it was holden no felony, because the jury thought the original design honest. 1 Leach, 411. notes. And it is certain, that if the property in effects be given voluntarily, whatever false pretence has been used to obtain it, no felony can be committed. 1 Hale P. C. 506. R. & R. C. C. 225. S. P. Thus obtaining silver on pretence of sending a balf guinea presently in exchange is no felony. 2 East P. C. 672. So writing a letter in the name of a third person to borrow money, which he obtains by that fraud, is only a misdemeanor, 2 East. P. C. 673.; and it makes no difference in these cases that the credit was obtained by fraudulently using the name of another, to whom it was intended to be given, 1 Leach, 303. notes. 2 East. P. C. 673. R. & R. C. C. 225.; and if a horse-dealer delivers a horse to another on his promise to return immediately and pay for it, the party's riding off and not returning is no felony. 1 Leach, 467. 2 East. P. Č. 669. So if a tradesman sells goods to a stranger as for ready money, and sends them to him by a servant who delivers them, and takes in payment for them bills which prove to be mere fabrications, this will be no larceny, though the party took his lodgings for the express purpose of obtaining the goods by fraud, because the owner parted with his property. 2 Leach, 614. So fraudulently winning money at gaming, where the injured party really intended to play, is no larceny, though a conspiracy to defraud appear in evidence. 2 Leach, 610. So brokers, bankers, or agents embezzling securities deposited with them for security or any special purpose, are not guilty of larceny, 4 Taunt. 258. 2 Leach, 1054. R. & R. C. C. 215. S. C.; but this decision occasioned the 52 Geo. III. c. 63. to be passed, making it a nuisdemeanor in brokers, bankers, and others, to embezzle securities deposited with them for safe custody or for any special purpose, in violation of good faith, and contrary to the special purpose for which they were deposited, see the act, infra, 230. Thus in all cases where a voluntary delivering by the prosecutor is the defence to be relied on, two questions arise, first, whether the |