shooting with a gun, happens to set fire to the thatch of a house, this Sir Matthew Hale determines not to be felony, contrary to the opinion of former writers. (i) But by statute 6 Ann. c. 31, any servant negligently setting fire to a house or outhouses shall forfeit 100l. or be sent to the house of correction for eighteen months; in the same manner as the Roman law directed, " eos, qui negligenter ignes apud se habuerint, fustibus vel flagellis cœdi."(k) 3. The punishment of arson was death by our ancient Saxon laws. (1) And in the reign of Edward the First this sentence was executed by a kind of lex talionis; for the incendiaries were burnt to death: (m) as they were also by the Gothic constitutions. (n) The statute 8 Hen. VI, c. 6, made the wilful burning of houses, under some special circumstances therein mentioned, amount to the crime of high treason. But it was again reduced to felony by the general acts of Edward VI, and Queen Mary; and now the punishment of all capital felonies is uniform, namely, by hanging. The offence of arson was denied the benefit of clergy by statute 21 Hen. VIII, c. 1, but that statute was repealed by 1 Edward VI, c. 12, and arson was afterwards held to be ousted of clergy, with respect to the principal offender, only by inference and deduction from the statute 4 and 5 P. and M. c. 4, *which expressly denied it to the accessories before the fact; (0) though now it is expressly denied to the prin[ *223 ] cipal in all cases within the statute 9 Geo. I, c. 22. (5) II. Burglary, or noctural housebreaking, burgi latrocinium, which by our ancient law was called hamesecken, as it is in Scotland to this day, has always been looked upon as a very heinous offence: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation which every individual might acquire even in a state of nature; an invasion, which in such a state would be sure to be punished with death, unless the assailant were the stronger. But in civil society the laws also come in to the assistance of the weaker party; and, besides that they leave him this natural right of killing the aggressor, if he can (as was shown in a former chapter), (p) they also protect and avenge him, in case the might of the assailant is too powerful. And the law of England has so particular and tender a regard to the immunity of a man's house, that it styles it his castle, and will never suffer it to be violated with impunity; agreeing herein with the sentiments of ancient Rome, as expressed in the words of Tully; (q) "quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium ?" For this reason no outward doors can in general be broken open to execute any civil process; though, in criminal cases, the public safety supersedes the private. Hence also, in part, arises the animadversion of the law upon eaves-droppers, nuisancers and incendiaries: and to this principle it must be assigned, that a man may assemble people together lawfully (at least if they do not exceed eleven) without danger of raising a riot, rout or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in in any other case. (r) (6) *The definition of a burglar, as given us by Sir Edward Coke,(s) is "he that by night breaketh and entereth into a mansion-house, with intent to [*224] (i) 1 Hal. P. C. 569. (k) Ff. 1, 15, 4. (1) LL. Inae. c. 7. (m) Britt. c. 9. (n) Stiernh. dejure Goth. l. 3. c. 6. (0) 11 Rep. 35. 2 Hal. P. C. 346, 347. Fost. 336. (q) pro domo, 41. (r) 1 Hal. P. C. 547. (8) 3 Inst. 63. (p) See page 180. Hale gives an instance of a youth of tender age being convicted before himself, and executed for this offence, on circumstances affording strong evidence of a mischievous discretion. 1 Hale, 569, 570. And the intent to injure may be always inferred from the wrongful act of setting fire, for a man must be supposed to intend the necessary consequence of his own act. Russ. and Ry. C. C. 207.] As to intent, see further, Reg. v. Paice, 1 C. and K. 73; Reg. v. Wallace, Car. and M. 200; Jesse v. State, 28 Miss. 100; State v. O'Connell, 26 Ind. 266. (5) The punishment of arson is no longer capital in England. (6) The English statute for the punishment of this offense is 24 and 25 Vic. c. 96. The penalty in the discretion of the court is penal servitude for life, or for any term not less thar three years, or imprisonment for any term uc; exceeding two years, with or without hard labor and with or without solitary confinement. commit a felony." In this definition there are four things to be considered; the time, the place, the manner, and the intent. 1. The time must be by night, and not by day: for in the day time there is no burglary. We have seen, (t) in the case of justifiable homicide, how much more heinous all laws made an attack by night, rather than by day; allowing the party attacked by night to kill the assailant with impunity. As to what is reckoned night, and what day, for this purpose: anciently the day was accounted to begin only at sun-rising, and to end immediately upon sun-set; but the better opinion seems to be, that if there be daylight or crepusculum 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. (v) But it does not seem absolutely necessary that it should in all cases be a mansion-house; (7) for it may be also committed by breaking (t) See pages 180, 181. (u) 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. 101. (v) 3 Inst. 64. (7) [Where the owner has never by himself, or by any of his family, slept in the house, it is not his dwelling-house, so as to be the subject of burglary. Rex v. Martin, R. and R. C. C. 108. And see Lyon's Case, Leach, 169; Thompson's Case, id. 893. Where a servant has part of a house for his occupation, and the rest is reserved by the proprietor for other purposes, the part reserved cannot be deemed part of the servant's dwelling-house; and it will be the same if any other person has part of the house, and the rest is reserved. Rex v. Wilson, R. and R. C. C. 115. Where a servant stipulates upon hire for the use of certain rooms in his master's premises for himself and family, the premises may be described as the master's dwelling-house, although the servant is the only person who inhabits them; for he shall be considered as living, there as servant, not as holding as tenant. Rex v. Stock, id. 185. Where a shop was rented with some of the apartments of a house, it was held that the shop was still part of the dwellinghouse, and that burglary might be committed in it, as the house of the landlord. Gibson's Case, Leach, 387. Where it must be laid in the indictment to be the dwelling-house of the landlord, if he break open the apartments of his lodgers, and steal their goods, it is not burglary, for a man cannot be guilty of burglary in his own house. Kel. 84. As to the residence, from all the cases, it appears that it must be a place of actual residence. Thus, a house under repair, in which no one lives, though the owner's property is deposited there, is not a place in which burglary can be committed; for it cannot be deemed his dwelling-house until he has taken possession and begun to inhabit it. 1 Leach, 185. Nor will it make any difference, if one of the workmen engaged in the repairs sleep there, in order to protect it. 1 Leach, 186, in notis. Nor, though the house is ready for the reception of the owner, and he has sent his property into it preparatory to his own removal, will it become for this purpose his mansion. 2 Leach, 771. And where the owner has never, by himself or by any of his family, slept in the house, it is not his dwelling-house, so as to make the breaking thereof burglary, though he has used it for his meals, and all the purposes of his business. Russ. and Ry. C. C. 138. So, if the landlord of a house purchases the furniture of his outgoing tenant, and procure a servant to sleep there, in order to guard it but without any intention of making it his own residence, a breaking into the house will not amount to burglary. 2 Leach, 876. But, if the agent of a public company reside at a warehouse belonging to his employers, this crime may be committed by breaking it, and he may be considered as the owner. 2 Leach. 931. And it seems, that if a man die in his house, and his executors put servants in it, and keep them there at board wages, burglary may be committed in breaking it, and it may be laid to be the executors' property. 2 East, P. C. 499. It seems quite settled, as above observed, that the proprietor of the house need not be actu ally within it at the time the offence is committed, provided it is one of his regular places of abode. For if he leaves it animo revertendi, though no person reside there in his absence, it will still be his mansion. As, if a man has a house in town, and another in the country, and goes to the latter in the summer, the nocturnal breaking into either, with a felonious design, will be burglarious. Fost. 77. And, though a man leaves his house, and never means to live in it again, yet if he uses part of it as a shop and lets a servant and his family live and sleep in another part of it, for fear the place should be robbed, and lets the rest to lodgers, the habitation by his servant and family will be a habitation by him, and the shop may still be considered as part of his dwelling-house. 1 Burn, J., 24th ed. 503; Russ. and Ry. C. C. 442, 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, etiam murorum portarumve burgi, ad feloniam perpetran- [*225] dam." 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 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 for a short season, animo revertendi, is the object of burglary, though no one be in it at the time of the fact committed. (x) And if the barn, stable, or warehouse, be parcel of the mansionhouse, 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 can burglary be committed therein; for by the lease it is severed from the rest [*226] 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 wagon 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. (f) There must in general be an actual breaking: (w) Spelm. Gloss. t. Burglary. 1 Hawk. P. C. 103. (y) K. v. Garland, P. 16 Geo. III, by all the judges. (a) 1 Hal. P. C. 556. (b) Kel. 84. 1 Hal. P. C. 556. 'e) 1 Hawk. P. C. 104. (f) 1 Hal. P. C. 553. (x) 1 Hal. P. C. 566. Fost. 77. S. C. But in an indictment for larceny from a dwelling-house, where the prosecutor left his house without any intention of living in it again, and intending to use it as a warehouse only, though he had persons (not of his own family) to sleep in it to guard the property, it was held it could not be considered the prosecutor's dwelling-house, to support the charge. Russ. and Ry. C. C. 187. And if the occupier of a house removes from it with his whole family, and takes away so much of his goods as to leave nothing fit for the accommodation of inmates, and has no settled idea of returning to it, but rather intends to let it, the offence will be merely larceny. Fost. 76. And the mere casual use of a tenement will not suffice; and therefore, the circumstance of a servant sleeping in a barn, or porter in a warehouse, for particular and temporary purposes, will not so operate as to make a violent entry in the night, in order to steal, a burglary. 1 Eale, 557, 558.] The cases regarding a dwelling-house, and what shall be considered as within the curtilage. `are numerous, and are collected and classified in the works on criminal law. 433 VOL. II.-55 not a mere legal clausum fregit (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 winGow; 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. (8) But if a person leaves his doors or windows open, it is 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) (9) 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 [*227 ] breaking; for the law will not suffer itself to be trifled with by such evasions, especially 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) or 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) (10) The entry may be be(g) Ibid. (k) Stra. 881. (i) 1 Hawk. P. C. 102. (h) 1 Hawk. P. C. 102. 1 Hal. P. C. 552, (8) [So to push open massive doors which shut by their own weight, is burglarious, though there is no actual fastening. 2 East, P. C. 437. 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. and Ry. C. C. 451. And where a window opens upon hinges, and is fastened by a wedge, so that pushing against it will open it, forcing it open by pushing against it is sufficient to constitute a breaking. Russ. and 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, and Ry. C. C. 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 any 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. 1 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. 108, 109; 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 movable despositories. Fost. 109.] (9) [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.] Erskine, J., in one case said 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. Reg. v. Wheeldon, 8 C. and P. 747. See Rex v. Lawrence, 4 id. 231; Curtis v. Hubbard, 1 Hill, 336; 4 id. 437; Commonwealth v. Stephenson, 8 Pick. 354; Ducher v. State, 18 Ohio, 308. (10) [So if the prisoner breaks open a shop window, and with his hand takes out goods, the offence is complete. Fost. 107; Russ. and 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. and Ry. C. C. 341. And where several having broken open a house, and attempting to fore the breaking as well as after: by the 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 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 or 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. Nor does it make any differ- [*228] ence 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.(o)(11). Thus much for the nature of burglary; which is a felony at common law, but within the benefit of clergy. The statute, however, 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 laws of Athens, which punished no simple theft with death, made burglary a capital crime. (q) (n) 1 Hal. P. C. 554. (0, 1 Hawk. P. C. 105. (m) Elm. 65. (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. 3s, declared to be single felony, and punished with transportation for seven years. (q) Pott. Antiq. b. 1, c. 26. 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. 38, s. 7. See 4 Camp. 220; 1 Stark, 58.] As to what is a sufficient entry, see State v. McCall, 4 Ala. 643; State v. Reid, 20 Iowa, 413; Frank v. State, 39 Miss. 705. Where a building is leased to different persons in distinct apartments, each apartment is the dwelling-house of the lessee; Mason v. People, 26 N. Y. 200; Stedman v. Crane, 11 Met. 295; and see Dale v. State, 27 Ala. 31. As to what is within the term 'dwelling-house," see 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; People v. Snyder, 2 Parker, 23; People v. Taylor, 2 Mich. 250; Commonwealth v. Estabrook, 10 Pick. 293; State v. Shaw, 31 Mc. 523. (11) 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.] 435 |