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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 to 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 out 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 arm 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 (é). 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 (ƒ).
Proof of the breaking-chimnies.] It was one time considered doubtful whether getting into the chimney of a house in the night-time, with intent to commit felony was a sufficient breaking to constitute burglary. 1 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 (g) (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 burgla ry. Commonwealth v. Stephenson, 8 Pick. 354.
(2) Robertson's case, 4 Rogers' Rec. 63.
(a) 2 Eng. C. C. 327. (b) 1 Ibid. 355. (e) Ibid. 451. (d) Eng. Com. L. Rep. xxxii. 577. (e) Id. xii. 292. (f) Id. xxxii. 463. (g) 1 Eng. C. C. 450.
*Proof of the breaking-fixtures, cupboards, &c.] The breaking open a movable chest or box in a dwelling-house, in the night-time, is not such a breaking as will make the offence burglary, for the chest or box is no part of the mansion-house. Foster, 108; 2 East, P. C. 488 (1). Whether breaking open the door of a cupboard let into the wall of a house, be burglary or not, does not appear ever to have been solemnly decided. In 1690, a case in which the point arose, was reserved for the opinion of the judges, and they were equally divided upon it. Foster, 108. Lord Hale says that such a breaking will not make a burglary at common law. 1 Hale, P. C. 527. Though, on the authority of Simpson's case, Kel. 31; 2 Hale, P. C. 358, he considers it a sufficient breaking within the stat. 39 Eliz. c. 15. In the opinion of Mr. Justice Foster, however, Simpson's case does not warrant the latter position. Foster, 108; 2 East, P. C. 489. And see 2 Hale, P. C. 358 (n.) Mr. Justice Foster concludes that such fixtures as merely supply the place of chests and other ordinary utensils of household, should for this purpose be considered in no other light than as mere movables. Foster, 109; 2 East, P. C. 489.
Proof of the breaking-walls.] Whether breaking a wall, part of the curtilage, is a sufficient breaking to constitute burglary, has not been decided. Lord Hale, after citing 22 Assiz. 95, which defines burglary to be," to break houses, churches, walls, courts, or gates, in time of peace," says" by that book it should seem that if a man hath a wall about his house for its safeguard, and a thief in the night breaks the wall or the gate thereof, and finding the doors of the gate open enters into the house, this is burglary; but otherwise it had been, if he had come over the wall of the court and found the door of the house open, then it had been no burglary." 1 Hale, P. C. 559. Upon this passage an annotator of the Pleas of the Crown observes, "This was anciently understood only of the walls or gates of the city (vide Spelman, in verbo Burglaria.) If so, it will not support our author's conclusion, wherein he applies it to the wall of a private house." Id. (n.) ed. 1778. It has been likewise observed upon this passage, that the distinction between breaking, and coming over the wall or gate is very refined, for if it be part of the mansion, for the purpose of burglary, and be inclosed as much as the nature of the thing will admit of, it seems to be immaterial whether it be broken or overleaped, and more properly to fall under the same consideration as the case of a chimney; and if it be not part of the mansion-house for this purpose, then whether it be broken or not is equally immaterial; in neither case will it amount to burglary. 2 East, P. C. 488. In these observations another writer of eminence concurs. 2 Russell, 5.
Proof of the breaking-gates.] Where a gate forms part of the outer fence of a dwelling-house only, and does not open into the house, or into some building parcel of the house, the breaking of it will not constitute burglary. Thus, where large gates opened into a yard in [*307] which was situated the dwelling-house and warehouse of the prosecutors, the warehouse extending over the gateway, so that when the gates were shut the premises were completely enclosed, the judges were unanimous
(1) State v. Wilson, 1 Coxe, 439.
that the outward fence of the curtilage, not opening into any of the buildings, was no part of the dwelling-house. Bennett's case, Russ. and Ry. 289 (a). So where the prisoner opened the area gate of a house in London with a skeleton-key, and entered the house by the door in the area, which did not appear to have been shut, the judges were all of opinion that breaking the area gate was not a breaking of the dwelling-house, as there was no free passage in time of sleep from the area into the dwellinghouse. Davis' case, Russ. and Ry. 322 (b).
Proof of breaking-constructive breaking-fraud.] In order to constitute such a breaking as will render the party subject to the penalties of burglary, it is not essential that force should be employed. There may be a constructive breaking by fraud, conspiracy, or threats, which will render the person who is party to it equally guilty as if he had been guilty of breaking with force. Where, by means of fraud, an entrance is effected into a dwelling-house in the night-time, with a felonious intent, it is burglary. Thieves came with a pretended hue and cry, and requiring the constable to go with them to search for felons, entered the house, bound the constable and occupier, and robbed the latter. So where thieves entered a house, pretending that the owner had committed treason; in both these cases, though the owner himself opened the door to the thieves, it was held burglary. 1 Hale, P. C. 552, 553. The prisoner knowing the family to be in the country, and meeting the boy who kept the key of the house, desired him to go with her to the house, promising him a pot of ale. The boy accordingly let her in, when she sent him for the ale, robbed the house and went off. This being in the night time, was held by Holt, C. J., Tracy, and Bury, to be burglary. Hawkins's case, 2 East, P. C. 485. By the same reasoning, getting possession of a dwelling-house by a judgment against the casual ejector, obtained by false affidavits, without any color of title, and then rifling the house, was ruled to be within the statute against breaking the house and stealing goods therein. 2 East, P. C. 485. So where persons designing to rob a house, took lodgings in it, and then fell on the landlord and robbed him. Kel. 52, 53; Hawk. P. C. b. 1, c. 38, s. 9.
Proof of the breaking-constructive breaking—conspiracy.] A breaking may be effected by conspiring with persons within the house, by whose means those who are without effect an entrance. Thus if A., the servant of B., conspire with C. to let him in to rob B., and accordingly A. in the night-time opens the door and lets him in, this, according to Dalton (cap. 99), is burglary in C. and larceny in A. But according to Lord Hale, it is burglary in both; for if it be burglary in C. it must necessarily [ *308] be so in A., *since he is present and assisting C. in the committing of the burglary. 1 Hale, P. C. 553. John Cornwall was indicted with another person for burglary, and it appeared that he was a servant in the house, and in the night-time opened the street-door and let in the other prisoner, who robbed the house, after which Cornwall opened the door and let the other out, but did not go out with him. It was doubted on the trial whether this was a burglary in the servant, he not going out with the other; but afterwards, at a meeting of all the judges, they were unan
(a) 1 Eng. C. C. 289. (b) Id. 322
imously of opinion that it was a burglary in both, and Cornwall was executed. Cornwall's case, 2 Str. 881; 4 Bl. Com. 227; 2 East, P. C. 486.
Proof of breaking-constructive breaking-menaces.] There may also be a breaking in law, where, in consequence of violence commenced or threatened, in order to obtain entrance, the owner, either from apprehension of force, or with a view more effectually to repel it, opens the door, through which the robbers enter. 2 East, P. C. 480. But if the owner only throw the money out of the house to the thieves who assault it, this will not be burglary. Id. Hawk. P. C. b. 1, c. 38, s. 3. Though if the money were taken up in the owner's presence, it would be robbery. But in all other cases where no fraud or conspiracy is made use of, or viclence commenced or threatened, in order to obtain an entrance, there must be an actual breach of some part or other of the house, though it need not be accompanied with any violence as to the manner of executing it. 2 East, P. C. 486; Hale, Sum. 80.
Proof of breaking-constructive breaking-by one of several.] Where several come to commit a burglary, and some stand to watch in adjacent places, and others enter and rob, in such cases the act of one is, in judgment of law, the act of all, and all are equally guilty of the burglary 1 Hale, P. C. 439, 534; 3 Inst. 63; 2 East, P. C. 486. So where a room-door was latched, and one person lifted the latch and entered the room, and concealed himself for the purpose of committing a robbery there, which he afterwards accomplished. Two other persons were present with him at the time he lifted the latch to assist him to enter, and they screened him from observation by opening an umbrella. It was held by Gaselee, J., and Gurney, B., that the two were, in law, parties to the breaking and entering, and were answerable for the robbery which took place afterwards, though they were not near the spot at the time it was perpetrated. Jordan's case, 7 C. and P. 432 (a).
Where the breaking is one night, and the entering the night after, a person present at the breaking, though not present at the entering, is, in law, guilty of the whole offence. Id.
Proof of the entry.] It is not sufficient to show a breaking only; the prosecutor must also prove an entry as well as a breaking, and both must be in the night and with intent to commit a felony, otherwise *it [ *309 ] is no burglary. 1 Hale, P. C. 555. If any part of the body be within the house, hand or foot, this is sufficient. Foster, 108; 2 East, P. C. 490. Thus where the prisoner cut a hole through the window-shutters of the prosecutor's shop, and putting his hand through the hole, took out watches, &c., but no other entry was proved, this was held to be burglary. Gibbon's case, Foster, 108. So where the prisoner broke a pane of glass in the upper sash of a window (which was fastened in the usual way by a latch) and introduced his hand within, for the purpose of unfastening the latch, but while he was cutting a hole in the shutter with a centre-bit, and before he could unfasten the latch, he was seized, the judges held this to be a sufficient entry to constitute a burglary. Bailey's case, Russ. and Ry. 341 (b). The prosecutor standing near the window of his shop, ob
(a) Eng. Com. L. Rep. xxxii. 572. (b) 1 Eng. C. C. 341.