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*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. i 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.” i 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 ob served 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 o. 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. i 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. (6) Id. 322
imously of opinion that it was a burglary in both, and Cornwall was executed. Cornwall's case, 2 Str. 881 ; 4 BI. 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 judginent of law, the act of all, and all are equally guilty of the burglary.. I 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 ihe 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.
served the prisoner with his finger against part of the glass. The glass fell inside by the force of his finger. The prosecutor added, that standing as he did in the street, he saw the fore-part of the prisoner's finger on the shop-side of the glass. The judges ruled this a sufficient entry. Davis's case, Russ. and Ry. 499 (a).
The getting in at the top of a chimney, as already stated, ante, p. 305, has been held to be a breaking, and the prisoners' lowering himself down the chimney, though he never enters the room, has been held to be an entry. Brice's case, Russ. and Ry. 451 (6).
Proof of entry-introduction of fire-arms or instruments. Where no part of the offender's body enters the house, but he introduces an instrument, whether that introduction will be such an entry as to constitute a burglary, depends, as it seems, upon the object with which the instrument is employed. Thus if the instrument be employed, not merely for the purpose of making the entry, but for the purpose of committing the contemplated felony, it will amount to an entry, as where a man puts a hook or other instrument to steal, or a pistol to kill, through a window, though his hand be not in, this is an entry. 1 Hale, P. C. 555; Hawk. P. C. b. 1, c. 38, s. 11; 2 East, P. C. 490.
But where the instrument is used, not for the purpose of committing the contemplated felony, but only for the purpose of effecting the entry, the introduction of the instrument will not be such an entry as to constitute burglary. Thus where thieves had bored a hole through the door with a centre-bit, and part of the chips were found inside the house, by which it was apparent that the end of centre-bit had penetrated into the house ; yet as the instrument had not been introduced for the purpose of taking the property, or committing any other felony, the entry was ruled to be incomplete. Hughes's case, 2 East, P. C. 491; 1 Leach, 406 ; Hawk. P. C. b. 1, c. 38, s. 12. A glass sash-window was left closed down, but was thrown up by the prisoners; the inside shutters were fastened, and there was a space of about three inches between the sash and the shutters, and the latter were about an inch thick. It appeared that [ *310] *after the sash had been thrown up, a crow-bar had been introduced to force the shutters, and had been not only within the sash, but had reached to the inside of the shutters, as the mark of it was found there. On a case reserved, the judges were of opinion that this was not burglary, there being no proof that any part of the prisoner's hand was within the window. Rust's case, 1 Moody, C. C. 183 (c).
Proof of entry—by firing a gun into the house. It has been already stated, that if a man breaks a house and puts a pistol in at the window with intent to kill, this amounts to burglary. Hale, P. C. 555, ante, p. 309. “But,” says Lord Hale, “if he shoots without the window, and the bullet comes in, this seems to be no entry to make burglary-quære.” Hawkins, however states, that the discharging a loaded gun into a house is such an entry as will constitute burglary; Hawk. P. C. b. 1, c. 38, s. II; and this opinion has been followed by Mr. East and Mr. Serjt. Russell. " It seems difficult," says the former, " to make a distinction between this kind of implied entry, and that by means of an instrument in
(a) 1 Eng. C. C. 199. (b) Id. 451. (c) 2 Eng. C. C. 183.
troduced between the window or threshold for the purpose of committing a felony, unless it be that the one instrument by which the entry is effected is held in the hand, and the other is discharged from it. No such distinction, however, is any where laid down in terms, nothing further appearing than that the entry must be for the purpose of committing a felony.” 2 East, P. C. 490; 2 Russ. 11. It was ruled by Lord Ellenborough, that a man who from the outside of a field discharged a gun into it, so that the shot must have struck the soil, was guilty of breaking and entering it. Pickering v. Rudd, 4 Campb. 220; 1 Stark. 58 (a).
Proof of entry-constructive entry—by one of several.]
It is not necessary in all cases to show an actual entry by all the prisoners; there may be a constructive entry as well as a constructive breaking. A. B. and C. come in the night by consent to break and enter the house of D. to commit a felony; A. only actually breaks and enters the house, B. stands near the door, but does not actually enter, C. stands at the lane's end, or orchard-gate, or field-gate, or the like, to watch that no help come to aid the owner, or to give notice to the others if help comes ; this is burglary in all, and all are principals. 1 Hale, P. C. 555. So where a man puts a child of tender years in at the window of the house, and the child takes goods and delivers them to A., who carries them away, this is burglary in A., though the child that made the entry be not guilty on account of its infancy. Id. And so if the wise, in the presence of the husband, by his threats or coercion break and enter a house in the night, this is burglary in the husband, though the wife, the immediate actor, is excused by the coercion of her husband. Id. 556; and see Jordan's case, ante, p. 303.
Proof of the premises being a mansion-house.] It must be proved *that the premises broken and entered were either a mansion- [ *311 ] house or parcel of a mansion-house. Every house for the dwelling and habitation of man is taken to be a mansion-house, wherein burglary may be committed. 3 Inst. 64-5; 2 East, P. C. 491.
A mere tent or booth erected in a market or fair is not a dwelling-house for the purpose of burglary. Hale, P. C. 557; 4 Bl. Com. 225. But where the building was a permanent one of mud and brick on the down at Weyhill, erected only as a booth for the purposes of a fair for a few days in the year, having wooden doors and windows bolted inside, it was held that as the prosecutor and his wife slept there every night of the fair (during one of which it was broken and entered), this was a dwellinghouse. Smith's case, coram Park, J., 1 Moody and Robinson, 256.
The following cases were decided previous to the 7 & 8 Geo. 3, c. 29, 8. 13, which has prescribed what shall be considered a dwelling-house for the purpose of burglary ; see post, p. 326.
The mere fact of a building in the neighborhood of a dwelling-house being occupied together with the dwelling-house, by the same tenant (not taking into consideration the question of the building being within the same curtilage, as to which wide post,) will not render the former building a dwelling-house in point of law. The prisoner broke and entered an out-house in the possession of G. S., and occupied by him with his dwell
(@) Eng. Com. L. Rep. ii. 293.