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Offence at common law
House divided without in: Statutes 7 & 8 Geo. 4, c. 29, and 7 Wm.
ternal communication,and 4 and 1 Vict. c. 86
• 315 Burglary and assault, with intent to mur
occupied by same der, &c.
316 Evidence in burglary
Where there is an internal Proof of the breaking
communication but the General instances
parts are occupied by seveDoors
ral, under distinct titles - 317 Windows
. 317 Chimnies
By wife or family . 319
By clerks or agents of public
- 319 Gates .
By servants--occupying as
Occupying as tenants 324
Outbuildings and ourtilage 326 Proof of the entry
308 Proof of the offence having been commitIntroduction of fire-arms or instru- ted in the night-time
309 Proof of the intent to commit felony-fel. By firing a gun into the house 310
ony at common law or by statute 328 Constructive entry-by one of se
Variance in statement of
329 veral 310 | Minor offence, larceny, &c.
330 Proof of the premises being a mansion. Proof of the breaking out of a dwellinghouse 310 house, &c.
312 Proof, upon plea of autrefois acquit . 331 Temporary or permanent 314
Offence at common law.) Burglary is a felony at common law, and a burglar is defined by Lord Coke as “ he that in the night-time breaketh and entereth into a mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not.” 3 Inst. 63. And this definition is adopted by Lord Hale. i Hale, P. C. 549; Hawk. P. C. b. 1, c. 38, s. 1.
Statute 7 and 8 Geo. 4, c. 29, &c.] By the 7 and 8 Geo. 4, c. 29, s. 11, it was enacted, " That every person convicted of burglary shall suffer death as a felon;" and it is thereby declared, “ that if any person shall enter the dwelling-house of another, with intent to commit felony; or being in such dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night-time, such person shall be deemed guilty of burglary."
By the 7 Wm. 4 and i Vict. 86, s. 1, so much of the above act as relates to the punishment of any person convicted of burglary, and of principals in the second degree, and of accessaries before and after the fact in that offence, is repealed; and by s. 2, it is enacted, “ that whosoever shall be convieted of the crime of burglary shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the
natural life of such offender, or for any term not less than ten years, or to be imprisoned for any term not exceeding three years."
By s. 7, “where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of *such imprisonment, or of [ *302 ) such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet."
As to the punishment of principals in the second degree and accessaries under the above act, (s. 6.) see ante, p. 207.
Burglary and assault, with intent to murder, &c.] By the 7 Wm. 4 and 1 Vict. c. 86, s. 2,“ whosoever shall burglariously break and enter into any dwelling-house, and shall assault, with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike any person, shall be guilty of felony, and being convicted thereof shall suffer death.”
This sentence may be recorded, ante, p. 224.
The evidence to support an indictment under this section of the statute, will be the same as that required on an indictment for simple burglary, see post; and in addition the prosecutor must prove that the prisoner assaulted the party named in the indictment, then being in the house, with intent to murder, which intent may be inferred from the circumstances. If, instead of assaulting with intent to murder, the charge be that the prisoner stabbed, cut, wounded, beat, or struck some person, proof must be given of such stabbing, &c. The latter part of the section does not seem to require that the person stabbed, &c. shall be in the dwellinghouse at the time that the violence is used towards him.
Where the indictment charged the prisoners with a burglary and with striking David James, and it appeared in evidence that the name of the person struck was Jones, it was held that the capital offence was not proved, and the prisoners were convicted of the burglary only. Parfitt's case, 8 C. and P. 288 (a), ante, p. 98.
Evidence in burglary.] Upon the trial of an indictment for the offence of burglary, the prosecutor must prove, 1, the breaking; 2, the entering; 3, that the house broken and entered was a mansion-house ; 4, that the breaking and entry were in the night-time ; 5, that the breaking and entering were with intent to commit a felony.
The offence of breaking out of a mansion-house in the night-time will be separately treated.
Proof of the breaking.) What shall constitute a breaking is thus described by Hawkins :-"It seems agreed, that such a breaking as is im. plied by law in every unlawful entry on the possession of another, whether it be open or be inclosed, and will maintain a common indictment, or action of trespass quare clausum fregit, will not satisfy the words felonice et burglariter, except in some special cases, in which it is accom
(a) Eng. Com. Law Rep. xxxiv. 393.
panied with such circumstances as make it as heinous as an actual breaking. And from hence it follows, that if one enter into a house by a door which he finds open, or through a hole which was made there before, and [ *303) steal goods, &c., *or draw any thing out of a house through a door or window which was open before, or enter into the house through a door open in the day-time, and lie there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary.” Hawk. P. C. b. 1, c. 38, s. 4, 5.
Proof of breaking-general instances. Proof of breaking a window, taking a pane of glass out by breaking or bending the nails or other fastenings, the drawing a latch, when a door is not otherwise fastened, picking open a lock with a false key, putting back the lock of a door or the fastening of a window, with an instrument, turning the key where the door is locked on the inside, or unloosing any other fastening which the owner has provided : these are all proofs of a breaking. 2 East, P. C. 487; 2 Russ. 3 (1).
Proof of the breaking-doors.) Entering the house through an open door is not, as already stated, such a breaking as to constitute a burglary. Yet if a defendant enters the house in the night-time, through an open door or window, and when within the house turns the key of, or unlatches, a chamber door, with intent to commit felony, it is a burglary. 1 Hale, P. C. 553 (2). So where the prisoner entered the house by a back-door which had been left open by the family, and afterwards broke open an inner door and stole goods out of the room, and then unbolted the street-door on the inside and went out; this was held by the judges to be burglary. Johnson's case, 2 East, P. C. 488. So where the inaster lay in one part of the house, and the servants in another, and the stair-foot door of the master's chamber was latched, and the servant in the night unlatcheď that door, and went into his master's chamber with intent to murder him, it was held burglary. Haydon's case, Hutt. 20, Kel. 67; 1 Hale, P. C. 554; 2 East, P. C. 488.
Whether the pushing open the flap or flaps of a trap-door, or door in a floor, which closes by its own weight, is a sufficient breaking, was for some time a matter of doubt. In the following case it was held to be a breaking. Through a mill (within a curtilage,) was an open entrance or gateway, capable of admitting wagons, intended for the purpose of loading them with flour, through a large aperture communicating with the floor above. This aperture was closed by folding doors with hinges, which fell over it and remained closed with their own weight, but without any interior fastenings, so that persons without, under the gateway, could push them open at pleasure. In this manner the prisoner entered with intent to steal ; and Buller, J., held that this was a sufficient breaking to constitute the offence of burglary. Brown's case, 2 East, P. C. 487. In another case, upon nearly similar facts, the judges were equally divided in opinion. The prisoner broke out of a cellar by lifting up a heavy flap, whereby the cellar was closed on the outside next the street. The fap had bolts, but was not bolted. The prisoner being
(1) So removing a stick of wood from an inner cellar door and turning a button. Smith's case, 4 Rogers' Rec. 63.
(2) State v. Wilson, 1 Coxe, 439.
convicted of burglary, upon a case reserved, six of the judges, including Lord Ellenborough, C. J. and Mansfield, *C. J., thought that this was a sufficient breaking ; because the weight was intended as a security, this not being a common entrance ; but the other six judges thought the conviction wrong. Callan's case, Russ. and Ry. 157 (a). It has been observed, that the only difference between this and Brown's case (supra) seems to be, that in the latter, there were no internal fastenings, which in Callan's case there were ; but that in neither case were any in fact used, but that the compression or fastening, such as it was, was produced by the mere operation of natural weight in both cases. Russ. and Ry. 158 (n.) (b). The authority of Brown's case has been since followed, and that decision may now be considered to be law. Upon an indictment for burglary, the question was, whether there had been a sufficient breaking? There was a cellar under the house, which communicated with the other parts of it by an inner staircase. The entrance to the cellar from the outside was by means of a flap which let down ; the flap was made of two-inch stuff, but reduced in thickness by the wood being worked up. The prisoner got into the cellar by raising the flap-door. It had been from time to time fastened with nails, when the cellar was not wanted. The jury found that it was not nailed down on the night in question. The prisoner being convicted, on a case reserved, the judges were of of opinion that the conviction was right. Russell's case, 1 Moody, C. C. 377 (c). See Lawrence's case, 4 C. and P. 231 (d). Post, p. 332.
Proof of the breaking—windows.] Where a window is open, and the offender enters the house, this is no breaking, as already stated, ante, p. 303. And where the prisoner was indicted for breaking and entering a dwelling-house and stealing therein, and it appeared that he had effected an entrance by pushing up or raising the lower sash of the parlorwindow, which was proved to have been, about twelve o'clock on the same day, in an open state, or raised about a couple of inches, so as not lo afford room for a person to enter the house through that opening, it was said by all the judges that there was no decison under which this could be held to be a breaking Smith's case, 1 Moody, C. C. 178 (e). A square of glass in the kitchen window (through which the prisoners entered) had been previously broken by accident, and half of it was oui when the offence was committed. The aperture formed by the half square was sufficient to admit a hand, but not to enable a person to put his arın in, so as to undo the fastening of the casement. One of the prisoners thrust his arm through the aperture, thereby breaking out the residue of the square, and having so done he removed the fastening of the casement; the window being thus opened the two prisoners entered the house. The doubt which the learned judges (Alderson, J., consulting Patteson, J.,) entertained, arose from the difficulty they had to distinguish satisfactorily the case of enlarging a hole already existing it not being like a chimney, an aperture necessarily left in the original construction of the house), from enlarging an aperture by lifting up further the sash of the window, as in Smith's case, supra; but the learned judges thought it was worth considering whether *in both cases the facts ( *305 ]
(a) 1 Eng. C. C. 157. (b) Ibid. 158. (C) 2 Ibid. 377. (d) Eng. Com. L. Rep. xix. 360.
(e) 2 Eng. C. C. 178.
did not constitute, in point of law, a sufficient breaking. Upon a case reserved, all the judges who met were of opinion that there was a sufficient breaking, not by breaking the residue of the pane, but by unfastening and opening the window. Robinson's case, 1 Moody, C. C. 327 (a).
Where a house was entered through a window upon hinges, which was fastened by two nails which acted as wedges, but notwithstanding these nails the window would open by pushing, and the prisoner pushed it open, the judges held that the forcing the window in this manner was a sufficient breaking to constitute burglary. Hall's case, Russ. and Ry. 355 (b). So pulling down the upper sash of a window which has no fastening, but which is kept in its place by the pulley-weight only, is a breaking, although there is an outer shutter which is not fastened. Haine's case, Russ. and Ry. 451 (c). So raising a window which is shut down close but not fastened, though it has a hasp which might be fastened. Per Park and Coleridge, JJ., Hyam's case, 7 C. and P.441 (d) (1).
Where a cellar-window, which was boarded up, had in it an aperture of considerable size to admit light into the cellar, and through this aperture one of the prisoners thrust his head, and by the assistance of the others thus entered the house, Vaughan, B., ruled that this resembled the case of a man having a hole in the wall of his house large enough for a man to enter, and that it was not burglary. Lewis's case, 2 C. and P. 628 (ė). See also Sprigg's case, infra.
A shutter-box partly projected from a house, and adjoined the side of the shop window, which side was protected by wooden panelling lined with iron; held that the breaking and entering the shutter-box did not constitute burglary. Paine's case, 7 C. and P. 135 (f ).
Proof of the breaking-chimnies.] It was one time considered doubtful whether getting into the chimney of a house in the night-tiine, with intent to commit felony was a sufficient breaking to constitute burglary. I Hale P. C. 552. But it is now settled that this is a breaking : for though actually open, it is as much inclosed as the nature of the place will allow. Hawk. P. C. b. 1, c. 38, s. 6; 2 East, P. C. 485. And accordingly it was so held, in a late case, by ten of the judges, (contrary to the opinion of Holroyd, J., and Burrough, J.) Their lordships were of opinion that the chimney was a part of the dwelling-house, that the getting in at the top was a breaking of the dwelling-house, and that the prisoner, by lowering himself in the chimney, made an entry into the dwelling-house. Brice's case, Russ. and Ry. 450 (8) (2).
But an entry through a hole in the roof, left for the purpose of admitting light, is not a sufficient entry to constitute burglary; for a chimney is a necessary opening and requires protection, whereas if a man chooses to leave a hole in the wall or roof of his house, instead of a fastened window, he must take the consequences. Sprigg's case, 1 Moo. and R. 357.
(1) The windows of a dwelling-house, being covered with a netting of double twine nailed to the sides, top and bottom, it was held, that cutting and tearing down the netting and entering the house through the window, were a sufficient entry and breaking to constitute burglary. Commonwealth o. Stephenson, 8 Pick. 354.
(2) Robertson's case, 4 Rogers' Rec. 63. (a) 2 Eng. C. C. 327. (6) 1 Ibid. 355. (C) Ibid. 451. (d) Eng. Com. L. Rep. xxxii. 577.
(e) Id. xii. 292. (f) ld. xxxii. 463. (g) í Eng. c. C. 450.