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 (b).

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. 1 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. 11; 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. 499. (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 ef fected 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 wife, 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. 309.

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. 1 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, s. 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 vide 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

(a) Eng. Com. L. Rep. ii. 293.

ing house, but not connected therewith by any fence inclosing both. The judges held that the prisoner was improperly convicted of burglary. The outhouse being separated from the dwelling-house, and not within the same curtilage, was not protected by the bare fact of its being occupied with it at the same time. Garland's case, 2 East, P. C. 403. So where a manufactory was carried on in the centre building of a great pile, in the wings of which several persons dwelt, but which had no internal communication with these wings, though the roofs of all the buildings were connected, and the entrance to all was out of the same common inclosure; upon the centre building being broken and entered, the judges held that it could not be considered as part of any dwelling-house, but a place for carrying on a variety of trades, and no parcel of the houses adjoining, with none of which it had any internal communication, nor was it to be considered as under the same roof, though the roof had a connection with the roofs of the houses. Eggington's case, 2 East, P. C. 494. The house of the prosecutor was in High-street, Epsom. There were two or three houses there, insulated like Middle-row, Holborn. At the back of the houses was a public passage nine feet wide. Across the passage, opposite to his house, were several rooms, used by the prosecutor for the purposes of his house, viz. a kitchen, a coach-house, a larder, and a brew-house. Over the brewhouse a servant boy always slept, but no one else; and in this room the offence was committed. There was no communication between the dwelling-house and these buildings, except a canopy or awning over the common passage, to prevent the rain from falling on the victuals carried across. [*312] Upon a case reserved, the judges were *of opinion that the room in question was not parcel of the dwelling-house in which the prosecutor dwelt, because it did not adjoin it, was not under the same roof, and had no common fence. Graham, B. dissented, being of opinion that it was parcel of the house. But all the judges present thought that it was a distinct dwelling of the prosecutor. Westwood's case, Russ. and Ry. 495 (a). In the following case, however, the building, though not within the curtilage, and having no internal communication, was held to constitute part of the dwelling-house. The prosecutor, a farmer, had a dwelling-house in which he lived, a stable, a cottage, a cow-house, and barn, all in one range of buildings, in the order mentioned, and under one roof, but they were not inclosed by any yard or wall, and had no internal communication. The offence was committed in the barn, and the judges held this to be a burglary, for the barn, which was under the same roof, was parcel of, and enjoyed with the dwelling-house. G. Brown's case, 2 East, P. C.

493.

A

So in the following case, the premises, broken and entered were not within the same external fence, as the dwelling-house, nor had they any internal communication with it, yet they were held to be part of it. The prosecutor's dwelling-house was situate at the corner of two streets. range of workshops adjoining the house at one side, and standing in a line with the end of the house, faced one of the streets. The roof of this range was higher than the roof of the house. At the end of this range, and adjoining to it, was another workshop projecting further into the street, and adjoining to that a stable and coach-house used with the dwelling-house. There was no internal communication between the workshops and the

(a) 1 Eng. C. C. 495.

dwelling-house, nor were they surrounded by any external fence. Upon a case reserved, the judges were unanimously of opinion that the workshops were parcel of the dwelling-house. Chalking's case, Russ. and Ry. 334 (a), see also Lithgo's case, Id. 357 (b).

In the case about to be mentioned, the premises broken and entered were within the curtilage, but without any internal communication with the dwelling-house. It does not appear whether the decision proceeded upon the same ground as the last case, or whether on the ground that the building in question was within the curtilage. The prosecutor had a factory adjoining to his dwelling-house. There was no internal communication, the only way from the one to the other (within the common inclosures) being through an open passage into the factory passage, which communicated with a lumber-room in the factory, from which there was a staircase which led into the yarn-room, where the felony was committed. On a case reserved, all the judges held that the room in question was properly described as the dwelling-house of the prosecutor. Hancock's case, Russ. and Ry. 171 (c). See also Clayburn's case, Id. 360 (d) (1).

Proof of the premises being a mansion-house-occupation.] It must appear that the premises in question were, at the time of the offence, occupied as a dwelling-house. Therefore, where a house *was under [313] repair, and the tenant had not entered into possession, but had deposited some of his goods there, but no one slept in it, it was held not to be a mansion-house, so as to make the breaking and entering a burglary. Lyon's case, 1 Leach, 185; 2 East, P. C. 497. Nor will the circumstances of the prosecutor having procured a person to sleep in the house, (not being one of his own family) for its protection, make any difference. Thus where a house was newly built and finished in every respect, except the painting, glazing, and flooring of one garret, and a workman, who was constantly employed by the prosecutor, slept in it for the purpose of protecting it, but no part of the prosecutor's domestic family had taken possession, it was held at the Old Bailey, on the authority of Lyon's case, (supra,) that it was not the dwelling-house of the prosecutor. Fuller's case, 1 Leach, 186, (n.) So where the prosecutor took a house, and deposited some of his goods in it, and not having slept there himself procured two persons (not his own servants) to sleep there for the purpose of protecting the goods, it was held at the Old Bailey, that as the prosecutor had only in fact taken possession of the house so far as to deposit certain articles of his trade therein, but had neither slept in it himself, nor had any of his servants, it could not in contemplation of law be called his dwelling-house. Harris's case, 2 Leach, 701; 2 East, P. C. 498. See also Hallard's case, coram Buller, J., 2 Leach, 701 (n.) Norreg Thompson's case, 2 Leach, 771. The following case, decided upon the construction of the statute 12 Anne, c. 7, is also an authority on the subject of burglary. The prose

(1) The breaking open in the night time of a store at the distance of twenty feet from a dwelling-house, but not connected with it, is not burglary. People v. Parker, 4 Johns. 424; nor when the only connection is a fence. State v. Ginns, 1 N. & M'C. 583. But it has been held that it may be committed in a house standing near enough to the dwelling-house to be used with it as appurtenant to it, or standing in the same yard, whether the yard be open or enclosed. State v. Twitty, 1 Hayw. 102. State v. Wilson, Id. 242. So in a store where there is a room communicating where a clerk sleeps. Wood's case, 5 Rogers's Rec. 10.

(a) 1 Eng. C. C. 334. (b) 1 Ibid. 357. (c) 1 Ibid. 171. (d) 1 Ibid. 360.

cutor, a publican, had shut up his house, which in the day-time was totally uninhabited, but at night a servant of his slept in it to protect the property left there, which was intended to be sold to the incoming tenant, the prosecutor having no intention of again residing in the house himself. On a case reserved, the judges were of opinion, that as it clearly appeared by the evidence of the prosecutor, that he had no intention whatever to reside in the house, either by himself or his servants, it could not in contemplation of law be considered as his dwelling-house, and that it was not such a dwelling-house wherein burglary could be committed. Davies's, alias Silk's case, 2 Leach, 876; 2 East, P. C. 499.

Where no person sleeps in the house, it cannot be considered a dwelling-house. The premises where the offence was committed consisted of a shop and parlor, with a staircase to a room over. The prosecutor took it two years before the offence committed, intending to live in it, but remained with his mother who lived next door. Every morning he went to his shop, transacted his business, dined, and staid the whole day there, considering it as his home. When he first bought the house he had a tenant, who quitted it soon afterwards, and from that time no person had slept in it. On a case reserved, all the judges held that this was not a dwelling-house. Martin's case, Russ. and Ry. 108 (a).

It seems to be sufficient if any part of the owner's family, as his domestic servants, sleep in the house. A. died in his house. B. *his [*314] executor put servants into it, who lodged in it, and were at board wages, but B. never lodged there himself. Upon an indictment for burglary, the question was, whether this might be called the mansion-house of B.? The court inclined to think that it might, because the servants lived there; but upon the evidence there appeared no breach of the house. Jones' case, 2 East, P. C. 499.

"If

Proof of the premises being a dwelling-house-occupation-tempory or permanent.] A house is no less a dwelling-house, because at certain periods the occupier quits it, or quits it for a temporary purpose. A.," says Lord Hale, " has a dwelling-house, and he and all his family are absent a night or more, and in their absence, in the night, a thief breaks and enters the house to commit felony, this is burglary. 1 Hale, P. C. 556; 3 Inst. 64. So if A. have two mansion-houses, and is sometimes with his family in one, and sometimes in the other, the breach of one of them, in the absence of his family, is burglary. Id. 4 Rep. 40 a. Again, if A. have a chamber in a college or inn of court, where he usually lodges in term time, and in his absence in vacation his chamber or study is broken open, this is burglary. Evans and Finche's case, Cro. Car. 473; 1 Hale, P. C. 556. The prosecutor being possessed of a house in Westminster, in which he dwelt, took a journey into Cornwall, with intent to return, and move his wife and family out of town, leaving the key with a friend to look after the house. After he had been absent a month, no person being in the house, it was broken open, and robbed. He returned a month after with his family and inhabited there. This was adjudged burglary, by Holt, C. J., Treby, J., and four other judges. Murry's case, 2 East, P. C. 496; Foster, 77.

In these cases the owner must have quitted his house animo revertendi,

(a) 1 Eng. C. C. 108.