but the better opinion seems to be, that if there be daylight or crepusculum (twilight) enough, begun or left to discern a man's face withal, it is no burglary. (u) But this does not extend to moonlight; for then many midnight burglars would go unpunished: and besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night; when all the creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and rendered his castle defenceless. 2. As to the place. It must be, according to Sir Edward Coke's definition, in a mansion-house: and, therefore, to account for the reason why breaking open a church is burglary, as it undoubtedly is, he quaintly observes that it is domus mansionalis Dei (the mansion-house of God). (v) But it does not seem absolutely necessary that it should in all cases be a mansion-house; for it may be also committed by breaking the gates or walls of a town, in the night; (w) though that perhaps Sir Edward Coke would have called the mansion-house of the garrison or corporation. Spelman defines burglary to be "nocturna diruptio alicujus *habitaculi, vel ecclesiæ, [*225] etiam murorum portarumve burgi, ad feloniam perpetrandam" (the nocturnal breaking open of any habitation or church, or even the walls or gates of a town, for the purpose of committing a felony). And therefore we may safely conclude, that the requisite of its being domus mansionalis is only in the burglary of a private house: which is the most frequent, and in which it is indispensably necessary to form its guilt, that it must be in a mansion or dwellinghouse. 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 for a short season, animo revertendi (with the intention of returning), 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 (u) 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. 101. (w) Spelm, Gloss. t. Burglary. 1 Hawk. P. C. 103. (y) K. v. Garland, P. 16 Geo. III, by all the judges. 1 As to what is a dwelling-house, and what is considered within the curtilage, see Fisher v. State, 43 Ala. 17; State v. Ginns, 1 N. and McC. 583; State v. Langford, 1 Dev. 253; Armour v. State, 3 Humph. 379; People v. Parker, 4 Johns. 424; Commonwealth v. Estabrook, 10 Pick. 293; State v. Shaw, 31 Me. 523; Ratekin v. State. 26 Ohio St. 420; State v. Outlaw, 72 N. C. 598; Re Lammer, 7 Biss. 269; State v. Mordecai, 68 N. C. 207; State v. Potts, 75 N. C. 129; People v. Taylor, 2 Mich. 250; Pitcher v. People, 16 Mich. 142; Quinn (v) 3 Inst. 64. (x) 1 Hal. P. C. 566. Fost. 77. v. People, 71 N. Y. 576; S. C.. 27 Am. Rep. 85. Where a building is leased to different persons in distinct apartments, each apartment is the dwelling house of the lessee. Stedman v. Crane, 11 Met. 295; Mason v. People, 26 N. Y. 200. And see Dale v. State, 27 Ala. 31; Ullman v. State, 1 Tex. App. 220; S. C., 28 Am. Rep. 405. But in charging a burglary in an inn, the room of a guest must be laid as the dwelling of the innkeeper. Rodgers v. People, 86 N. Y. 360; S. C., 40 Am. Rep. 548. homestall. (2) 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 can burglary be committed therein; for by the lease *it is severed from the rest of the house, and therefore is [*226] 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 wagon in the same circumstances. 3. As to the manner of committing burglary: there must be both a breaking and entry to complete it. Breaking. 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. (f) There must in general be an actual breaking: not a mere legal clausum fregit (breaking the close) (by leaping over invisible 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 his own folly and negligence, 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 1 Where a window sash was raised two inches and the prisoner pushed it up and entered the house, held no breaking. R. v. Sunith, 1 Moo. 178. So, where sash was raised only one-fourth of an inch. Com. v. Strupney, 105 Mass. 588; S. C., 7 Am. Rep. 556. But where an open window was covered by a twine netting nailed to the sash, and this was cut and thus an entrance effected, held sufficient breaking. Com. (d) 1 Hal. P. C. 558. (g) Ibid. 552, 553. v. Stephenson, 8 Pick. 354. It is a breaking if the entrance is gained by lifting a heavy iron grating and pushing open a cellar window which swings on hinges and is wedged together. R. v. Hall, R. & R. 355. So, if the cellar window is open and the grating over the area in front of it is lifted. People v. Nolan, 22 Mich. 229. It is enough if a window shut, but unbolted, be opened. State v. Boon, 13 Ired. 244; Frank v. State, 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 [*227] actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process. (2) And so, if a servant opens and enters his master's chamber-door with a felonious design; or if any other person lodg ing 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. The entry.-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 the window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries. (7) The entry may be before the breaking as well as after: for by the statute 12 Ann, (i) 1 Hawk, P. C. 102, (h) 1 Hawk. P. C. 102. 1 Hal. P. C. 552. 30 Miss. 705. So, pushing open a closed door which swings on hinges. State v. Reid, 20 Ia. 413; Timmons v. State, 34 Ohio St. 426; S. C., 32 Am. Rep. 376. Unlatching a door which was latched, but not bolted, is a breaking at com. mon law. People v. Bush, 3 Park. Cr. R. 552; Curtis v. Hubbard, 1 Hill, 336; 4 id. 437. Breaking the glass in a door so as to get in without opening the door, is enough. R. v. Smith, R. & R. 417. So, where glass had been cut through previously but stayed in place, and the prisoner simply pushed it out. R. v. Bird, 9 C. & P. 44. So, getting into a chimney in order to enter. R. v. Price, R. & R. 450; State v. Willis, 7 Jones, 190. So, raising a trap door held down by its own weight. R. v. Russell, 1 Moo. 377. The breaking may be by fire, and this is not merged in the consumption of the building. White v. State, 49 Ala. 344. Where one, by fraud or trick upon the inmates, gets a door opened and immediately enters, it is a breaking. State v. Johnson, Phill. (N. C.) 186; Ducher v. State. 18 Ohio, 308; Johnston v. Com., 85 Pa. St. 54. If one finds an outer door open and opens an inner door, it is a breaking. Rolland v. Com., 85 Pa. St. 66; S. C., 27 Am. Rep. 626; not if, all doors being open, one breaks open a chest or box. State v. Wilson, Coxe, 439; S. C., 1 Am. Dec. 216. Erskine, J., said in one case, that if a thief who is lawfully within even lifts the latch to get out of the house with the stolen property, that is a burglarious breaking out of the house. R. v. Wheeldon, 8 C. & P. 747. See State v. Reid, 20 Iowa, 413. 1 Breaking outer shutters, and putting a hand inside is not an entry, if the window is down and the glass unbroken; but the least entry of a dwelling house by a hand or foot, or an instrument with which it is intended to commit a felony is enough. State v. McCall, 4 Ala. 643. It is enough to introduce the hand between the window-glass and a shutter, if, to do it, the glass must be broken first. R. v. Bailey, R. and R. 341. So if a finger merely is inside by pushing in a window-pane. R. v. Davis, R. and R. 499. Where a window had been raised, and a crowbar pushed under the inner shutters to pry them open, but the hands of the men had not been put inside, there was no entry. R. v. Rust, Moo. 183. So where one with a bit had bored through a door, because the instrument was not introduced for the purpose of taking property: 2 East P. C. 490. Compare Walker v. State, 63 Ala. 49; S. C., 35 Am. Rep. 1. An 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 the night break out of the same, this is declared to be burglary: there having been before 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 other felony, is burglary; whether the thing be actually perpetrated or [*228] 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)1 Thus much for the nature of burglary; which is a felony at common law, but within the benefit of clergy. The statutes, however, (n) 1 Hal. P. C. 554. (m) Elem. 65. entry through a hole in a roof left unguarded, is not burglarious. R. v. Spriggs, 1 Moo. and Rob. 357. 1The English and American courts seem to differ upon the question, whether there can be any burglary when, though the intent is present, there is unknown to the thief an absence of anything to steal. Thus, when one was indicted for breaking the house of J. D. with intent to steal the goods of J. W., and it appeared that J. W. had no goods in the house, held that there could be no conviction. R. v. Jenks, 2 East P. C. 514. Where an indictment charged breaking and entering with intent to steal certain specified goods, and it appeared that no such goods were there, held, that though the breaking and entering was proved, there could be no conviction. While the intent to steal those goods might have existed, there could have been no attempt, because "an attempt must be to do, that which if successful would amount to the felony." R. v. McPherson, Dears. and B. 197. So where the charge was attempt to commit larceny by pocket picking, and there was nothing in the pocket, held for similar reason no conviction was possible. R. v. Collins, L. and C. 471. This question has not arisen in American courts, so far as known, in reference to burglary, but has been adjudicated in larceny cases, (0) 1 Hawk. P. C. 105. and a different conclusion has been reached from that arrived at in England. Thus where one was indicted for attempt to commit larceny by pocket picking, but the indictment did not set out the property, which the prisoner attempted to steal, and it did not appear that there was anything in the pocket, the court held that the offense was complete by the general attempt to steal, and the act done toward the commission of the offense by thrusting the hand into the pocket; that to attempt was simply "to make an effort to effect some object, to make a trial or experiment, to endeavor, to use exertion for some purpose." Com. v. McDonald, 5 Cush. 365. In a similar case in Connecticut, it was held that "the attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fail by reason of interruption, or because there was nothing in the pocket, or for other extrinsic cause." State v. Wilson, 30 Conn. 500, and see Com. v. Rogers, 5 S. and R. 461; People v. Jones, 46 Mich. 441. It would seem that breaking and entering with intent to steal that which it is physically impossible to steal, might be an offense within the reasoning of the American cases, notwithstanding the case of R. v. McPherson, contra. of 1 Edw. VI, c. 12, and 18 Eliz. c. 7, take away clergy from the principals, and that of 3 and 4 W. and 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) [*229] *CHAPTER XVII. OF OFFENCES AGAINST PRIVATE PROPERTY. 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; larceny 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. Larceny, or theft, by contraction for lactrociny, lactrocinium, is distinguished by the law into two sorts: the one called simple larceny, or plain theft, unaccompanied with any other atrocious circumstances; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person.1 And, first, of simple larceny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise. I shall, therefore, first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment inflicted on its two several branches. Simple larceny, then, "is the felonious taking and carrying away of the personal goods of another." This *offence certainly [*230] commenced then, whenever it was, that the bounds of property, or laws of meum and tuum (mine and thine), 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 seized to his present use seems to be the only offence of this kind incident to such a state. But unquestionably, 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 should extend, is matter of considerable (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 years. (a) See book II, p. 8, &c. (q) Pott. Antiq. b. 1, c. 26. 1 The punishment for this offense is now provided for by statute 24 and 25 Vic., c. 96. That statute abolishes the distinction between grand and petit larceny, and limits the punishment for the first offense of simple larceny to three years' penal servitude, or two years' imprisonment, with or without hard labor, and with or without solitary confinement. |