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 seperate 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 [*226] by the lease it is severed from the rest of the house, and there

fore 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 circum

stances.

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 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 (15). 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) (16). But to come down a chimney is

(a) 1 Hal. P. C. 556.

(b) Kel. 84. 1 Hal. P. C. 556. (c) Foster, 38, 39.

(d) 1 Hal. P. C. 558.

(15) 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. & 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. & 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. C.

(e) 1 Hawk. P. C. 104.
(f) 1 Hal. P. C. 553.
(g) Ibid.

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, 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.

(16) It will be burglary to unlatch an inner

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 suf- [*227] fer 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); 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) (17). 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 the night break out of the same, this is declared to be burglary; there having 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 (18).

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, [*228]

(h) 1 Hawk. P. C. 102. 1 Hal. P. C. 552. (i) 1 Hawk. P. C. 102.

(k) Stra. 881. 1 Hal. P. C. 553. 1 Hawk. P. C. 103.

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.

(17) 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. Č. 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,

(1) 1 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108.

(m) Elm. 65.

(n) 1 Hal. P. C. 554.

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.

(18) The act now in force is 7 & 8 Geo IV. c. 27.

a rape, or any other felony, is burglary; whether the thing be actually perpetrated or not. Not 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 (o) (19).

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. V1. 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 accessaries before the fact (p) (20). And in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime (q).

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 latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person (1).

(0) 1 Hawk. P. C. 105.

(p) Burglary in any house belonging to the plate glass company, with intent to steal the stock or utensile, is by statute 13 Geo. III. c. 38. declared to

(19) 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.

33.

(20) All repealed by 7 & 8 Geo. IV. c. 27. (21) Re-enacted by 33 Geo. III. c. 17,

(1) By statute 7 and 8 Geo. IV. c. 29, § 2, it is enacted, "That the distinction between grand and petty larceny shall be abolished, and every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny

be single felony, and punished with transportation for seven years (21).

(g) Pott. Antiq. b. 1, c. 26.

was before the commencement of this Act; and every court, whose power as to the trial of larceny was before the commencement of this Act limited to petty larceny, shall have power to try every case of larceny, the punishment of which cannot exceed the punishment hereinafter mentioned for simple larceny, and also to try all accessaries to such larceny."

By 3, every person convicted of simple larceny, or of any felony thereby made punishable like simple larceny, shall (except in the cases thereinafter otherwise provided for) be liable to transportation for seven years, or imprisonment not exceeding two years; and, if a male, to one, two, or three public whippings; and by 4, where the sentence is imprisonment, the courts have a discretionary power to award hard labour or solitary confinement in addition. This observation has been introduced here that the reader may observe, how far the present provisions of the law vary from the text, in his progress through this important chapter, and to remind him that the subtle

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 (2). 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, 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. 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 shall extend, is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition.

1. It must be a taking (3). This implies the consent of the owner to

(a) See Book II. p. 8, &c.

distinctions between grand and petty larceny are now entirely abolished.

By61, in every felony punishable under this Act, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree; and every accessary after the fact, (except only a receiver of stolen property,) shall on conviction be liable to imprisonment for any term not exceeding two years; and every person aiding, abetting, counselling, or procuring the commission of any misdemeanor punishable under this Act, shall be liable to be indicted and punished as a principal offender. As to the venue in cases of larceny, see 7 Geo. IV. c. 64, ss. 12 and 13.

grand larceny. Stealing public records, &c. is also the same offence: whether the thief be the officer having custody of them or another; any other than such officer may, however, be punished by fine, or by imprisonment in a state-prison or county jail, or by fine and imprisonment. (Ib. 680.) See ib. as to value of property stolen.

(3) 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. Crim. 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. sed vide East P. C. 562. R. & R. C. C. 215. 4 Taunt. 258. S. C. 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 72

(2) In New-York, the stealing, taking, and carrying away the personal property of an other of the value of 25 dollars or under, is petit larceny, and punishable by imprisonment in a county jail not more than six months, and by fine not more than 100 dollars. Grand larceny is feloniously taking and carrying away personal property worth more than 25 dollars, and is punishable by imprisonment in a state prison for not more than 5 years. But if grand larceny be committed in a dwelling-house, ship, or other vessel, the imprisonment may be for 8 years: if committed in the night, and from the person of another, it may be for 10 years. (2 R. S. 690, § 1: and 679, § 63, &c.) The severing from the soil of another, produce growing thereon worth more than 25 dollars, or from any building, gate, fence, or other railing or enclosure, any part thereof, or any material of which it is formed of like value, and taking and converting the same to one's own use with intent to steal, is also VOL. II.

If a

be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larceny. As if A lends B a horse, and