Mr. Justice Paxson
delivered the opinion of the court, October 1st 1877.
The assignments of error from the first to the fifth inclusive, refer to the same question and may be considered together. They allege error in the application by the court below of the doctrine of constructive breaking to the facts of this case. We may remark, in passing, of the first assignment, that the defendant’s third point was affirmed. This left him nothing to complain of. The point itself wholly omits any reference to the felonious intent existing in the mind of the defendant when he rang the door-bell. Without this the point was without point. An entering of the character referred to would not be burglarious in the absence of any design to commit a felony. In affirming it the learned judge of the court below ruled the law more favorably to the defendant than he had a right to claim.
Without going into extended details, there was abundant evidence to show a conspiracy between the defendant (plaintiff in error) and his confederate, Rolland, to rob the bank. This design had evidently existed for a period of some weeks, and the plan carefully arranged. There were well-matured preparations for disguise and flight; masks and gowns, and a horse saddled, and kept waiting near at hand; a pistol and dirk for defence or attack if necessary, and gags to silence those who might be in the bank. There was a completeness of preparation that marks the experienced and accomplished burglar. This was especially the case with Rolland, who appears to have cultivated pleasant social relations with many of the citizens of Chambersburg, and particularly with Mr. Messersmith, the cashier of the bank intended to be plundered. This enabled him to become familiar with the plan of Mr. Messersmith’s house and banking-room. The evidence was abundant to justify the conclusion that the object of all this social intercourse was to throw the cashier off his guard. To furtHüb inspire confidence, Rolland gave him one or more sealed packages, represented to contain valuables, but which were of course but waste paper. It was a cunningly-devised scheme — planned with skill, and executed with boldness. It would have succeeded in all probability but for Mr. [63]*63Messersmith’s manly and stubborn resistance. This was probably unloolced for in vieAV of the disposition of the modern cashier to hand over the keys upon demand. The defendant and his confederate having thus laid and matured their plans, the next step was to effect an entrance into the bank. Mr. Kindlino states how this was done:—
“ I reside in the bank with Mr. Messersmith; I was in bank on night of 24th of March last; I answered the call of the bell; between eight and nine o’clock that night a bell rang from the outside ; I was in the main hall when the bell rang; it was then night time; the door was fastened with a dead-latch ; it could not have been opened from the outside; I sprung back the dead-latch; I found two men there ; one I recognised as Holland; he asked me whether Mr. Messersmith was in; I said no, he had just walked out; he said he was sorry, that he had a friend from New York that Avanted to transact some business with him, and he introduced a Mr. Johnston; defendant is the man; he said he Avould call later in the evening; I said it Avas a disagreeable evening, and Rolland said yes, Ave may have some sleighing yet; then they left. Shortly after Mr. Messersmith came; Ave talked in the parlor; I did not tell Mr. Messersmith that these parties had been there to see him ; I went up-stairs, and Mr. Messersmith to his office ; some time after, fifteen or twenty minutes, I heard the bell ring again ; I answered it a second time; the dead-latch Avas down; the door was locked ; it was at front door, leading from the street into the hall of the house; 1 opened the door and found there Rolland and the man he had before introduced as Johnston; he asked me if Mr. Messersmith was in, and I said he was; they came in and put their hats on the rack; Johnston had an overcoat; took that off and hung it up; they had an umbrella this time ; I led the way through the hall into the dining-room; they followed to Messersmith’s office; I opened the door of the cashier’s room, leading from the dining-room in, and saw Messersmith at the grate with his back toAvards the door.”
Was there evidence here of a constructive breaking? Of an entrance obtained by artifice and fraud, by means whereof Mr. Messersmith was deceived and the laAV evaded ? The court beloAv said in answer to the defendant’s fourth point: “ If you believe that long before the 24th of March 1876, Rolland had conceived the idea of entering the Bank of Chambersburg with intent to rob or steal, and concocted a plan by which he might effect such purpose ; that he cultivated the acquaintance of the cashier and placed himself on as familiar terms as he could with him and his family, and began to talk to him of the buying of farms, and finally stated that he had a friend whom he wished to have come to Chambers-burg to reside, and spoke of the Stouffer farm and thought it was too small; and on the night in question presented himself with a [64]*64friend, who he stated had some business with the cashier, and if you believe this was false and fraudulent and intended to obtain admission to the house, and that it was by means of this that Rolland and Johnston did in fact obtain admission into the house, then this was such a fraud as amounted to a constructive breaking. If Rolland, by frauds and tricks and artifices, deceived the cashier, and induced him to believe that he was concerned to buy a farm for a friend, and that if he would call at his house with such a friend it would be for that purpose, and that it was thus that he was received into the house, and the whole household was so deceived, and Kind-line opened the door under the influence of Rolland’s deceptions as to his true character and purposes, it was a constructive breaking.” This ruling was not only free from error, but it was more favorable to the defendant than he was entitled to. It was laying an unnecessary burden upon the Commonwealth. If, when Rolland and Johnston rang Mr. Messersmith’s bell, they did so with the intent of entering under the guise of'friendship or the pretence of business, and then robbing the bank, it was a burglarious entry; it was a breaking within the meaning of the law. Nor would it matter that one of the burglars had established such social relations with Mr. Messersmith that he would have been admitted without question. It makes the fraud the greater. The dead-latch was down and the door was locked. The bolts were withdrawn upon the implied if not express assurance that they came there as friends for social intercourse or to transact business. This assurance in either case was a trick and deception. The law is not so impotent as to permit a burglar to enter a house under such circumstances and yet evade the responsibility of his act. We are not asserting any new doctrine nor extending the application of an old one. The principle is fully sustained by the authorities cited in Rolland v. The Commonwealth, 1 Norris 306. In addition I will refer to Sharswood’s Blackstone, vol. 2, p. 226; Wharton’s Crim. Law, vol. 2, § 1539; Roscoe’s Crim. Ev. 346; Bacon’s Abr., tit. Burglary (A.),. 133; Chitty’s Crim. Law, vol. 3, p. 856, where numerous authorities are cited in support of the text. In Ducher v. The State, 18 Ohio 317, the facts were these: Sarah Brown was living in the house with her son, John Ondery. On the night mentioned in. the indictment they were awakened by some one knocking at the door; in answer to which John said, “
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Mr. Justice Paxson
delivered the opinion of the court, October 1st 1877.
The assignments of error from the first to the fifth inclusive, refer to the same question and may be considered together. They allege error in the application by the court below of the doctrine of constructive breaking to the facts of this case. We may remark, in passing, of the first assignment, that the defendant’s third point was affirmed. This left him nothing to complain of. The point itself wholly omits any reference to the felonious intent existing in the mind of the defendant when he rang the door-bell. Without this the point was without point. An entering of the character referred to would not be burglarious in the absence of any design to commit a felony. In affirming it the learned judge of the court below ruled the law more favorably to the defendant than he had a right to claim.
Without going into extended details, there was abundant evidence to show a conspiracy between the defendant (plaintiff in error) and his confederate, Rolland, to rob the bank. This design had evidently existed for a period of some weeks, and the plan carefully arranged. There were well-matured preparations for disguise and flight; masks and gowns, and a horse saddled, and kept waiting near at hand; a pistol and dirk for defence or attack if necessary, and gags to silence those who might be in the bank. There was a completeness of preparation that marks the experienced and accomplished burglar. This was especially the case with Rolland, who appears to have cultivated pleasant social relations with many of the citizens of Chambersburg, and particularly with Mr. Messersmith, the cashier of the bank intended to be plundered. This enabled him to become familiar with the plan of Mr. Messersmith’s house and banking-room. The evidence was abundant to justify the conclusion that the object of all this social intercourse was to throw the cashier off his guard. To furtHüb inspire confidence, Rolland gave him one or more sealed packages, represented to contain valuables, but which were of course but waste paper. It was a cunningly-devised scheme — planned with skill, and executed with boldness. It would have succeeded in all probability but for Mr. [63]*63Messersmith’s manly and stubborn resistance. This was probably unloolced for in vieAV of the disposition of the modern cashier to hand over the keys upon demand. The defendant and his confederate having thus laid and matured their plans, the next step was to effect an entrance into the bank. Mr. Kindlino states how this was done:—
“ I reside in the bank with Mr. Messersmith; I was in bank on night of 24th of March last; I answered the call of the bell; between eight and nine o’clock that night a bell rang from the outside ; I was in the main hall when the bell rang; it was then night time; the door was fastened with a dead-latch ; it could not have been opened from the outside; I sprung back the dead-latch; I found two men there ; one I recognised as Holland; he asked me whether Mr. Messersmith was in; I said no, he had just walked out; he said he was sorry, that he had a friend from New York that Avanted to transact some business with him, and he introduced a Mr. Johnston; defendant is the man; he said he Avould call later in the evening; I said it Avas a disagreeable evening, and Rolland said yes, Ave may have some sleighing yet; then they left. Shortly after Mr. Messersmith came; Ave talked in the parlor; I did not tell Mr. Messersmith that these parties had been there to see him ; I went up-stairs, and Mr. Messersmith to his office ; some time after, fifteen or twenty minutes, I heard the bell ring again ; I answered it a second time; the dead-latch Avas down; the door was locked ; it was at front door, leading from the street into the hall of the house; 1 opened the door and found there Rolland and the man he had before introduced as Johnston; he asked me if Mr. Messersmith was in, and I said he was; they came in and put their hats on the rack; Johnston had an overcoat; took that off and hung it up; they had an umbrella this time ; I led the way through the hall into the dining-room; they followed to Messersmith’s office; I opened the door of the cashier’s room, leading from the dining-room in, and saw Messersmith at the grate with his back toAvards the door.”
Was there evidence here of a constructive breaking? Of an entrance obtained by artifice and fraud, by means whereof Mr. Messersmith was deceived and the laAV evaded ? The court beloAv said in answer to the defendant’s fourth point: “ If you believe that long before the 24th of March 1876, Rolland had conceived the idea of entering the Bank of Chambersburg with intent to rob or steal, and concocted a plan by which he might effect such purpose ; that he cultivated the acquaintance of the cashier and placed himself on as familiar terms as he could with him and his family, and began to talk to him of the buying of farms, and finally stated that he had a friend whom he wished to have come to Chambers-burg to reside, and spoke of the Stouffer farm and thought it was too small; and on the night in question presented himself with a [64]*64friend, who he stated had some business with the cashier, and if you believe this was false and fraudulent and intended to obtain admission to the house, and that it was by means of this that Rolland and Johnston did in fact obtain admission into the house, then this was such a fraud as amounted to a constructive breaking. If Rolland, by frauds and tricks and artifices, deceived the cashier, and induced him to believe that he was concerned to buy a farm for a friend, and that if he would call at his house with such a friend it would be for that purpose, and that it was thus that he was received into the house, and the whole household was so deceived, and Kind-line opened the door under the influence of Rolland’s deceptions as to his true character and purposes, it was a constructive breaking.” This ruling was not only free from error, but it was more favorable to the defendant than he was entitled to. It was laying an unnecessary burden upon the Commonwealth. If, when Rolland and Johnston rang Mr. Messersmith’s bell, they did so with the intent of entering under the guise of'friendship or the pretence of business, and then robbing the bank, it was a burglarious entry; it was a breaking within the meaning of the law. Nor would it matter that one of the burglars had established such social relations with Mr. Messersmith that he would have been admitted without question. It makes the fraud the greater. The dead-latch was down and the door was locked. The bolts were withdrawn upon the implied if not express assurance that they came there as friends for social intercourse or to transact business. This assurance in either case was a trick and deception. The law is not so impotent as to permit a burglar to enter a house under such circumstances and yet evade the responsibility of his act. We are not asserting any new doctrine nor extending the application of an old one. The principle is fully sustained by the authorities cited in Rolland v. The Commonwealth, 1 Norris 306. In addition I will refer to Sharswood’s Blackstone, vol. 2, p. 226; Wharton’s Crim. Law, vol. 2, § 1539; Roscoe’s Crim. Ev. 346; Bacon’s Abr., tit. Burglary (A.),. 133; Chitty’s Crim. Law, vol. 3, p. 856, where numerous authorities are cited in support of the text. In Ducher v. The State, 18 Ohio 317, the facts were these: Sarah Brown was living in the house with her son, John Ondery. On the night mentioned in. the indictment they were awakened by some one knocking at the door; in answer to which John said, “ Come in.” The persons outside pulled the latch-string without being able to open the door, when they stated that they could not come in. John then got up and opened the door, when two men walked into the house. After they had entered one of them nearly closed the door and stood by it; the other stated that they had a warrant for John Ondery from the prosecuting attorney of Pickaway county. John asked for time to put on his clothes, and after he had done so, one of the men told him that they wanted his money, and asked for his mo[65]*65tlier’s money. John said it was in a chest. They told her to get the key, which she did. They tried to open the chest, where John told them the money was, and being unable to do so, with threats of violence induced her to do it, and then took from the chest the money described in the indictment: Meld, that this was a constructive breaking under the Ohio statute, which provides against & forcible breaking and entering. It will be observed, in the case above cited, that the door was opened in obedience to a knock. Not a word was said by way of inducement to open it; yet it was a manifest trick and fraud. When a person rings the door-bell of a house, the owner has a right to presume that his visitor calls for the purpose of friendship or business. If, in obedience to the summons, he withdraws his bolts and bars, and the visitor enters to commit a felony, such entry is a deception and fraud upon the owner and constitutes a constructive breaking.
That portion of the charge of the learned judge of the court below, which forms the subject of the sixth assignment of error,' was certainly a strong expression of opinion, but taking it in connection with the entire charge did not amount to a binding instruction. It really amounted to no more than saying that if the jury believed the evidence, he did not see how they could fail to convict upon the third count. This was not error under the facts of this case. The evidence for the Commonwealth was overwhelming. It stood unchallenged and uncontradicted by the prisoner. The jury had no right to disregard the evidences and the case was precisely of that class to which Mr. Justice Strong referred in Kilpatrick v. The Commonwealth, 7 Casey 198, when he said “ a judge may rightfully express his opinion respecting the evidence, and it may sometimes be his duty to do it, yet not so as to withdraw it from the consideration and decision of the jury.” If the case wore in the least doubtful upon the evidence ; if there had been anything for the jury to hesitate about, there might have been more force in this assignment of error. As it stands the defendant could not have been injured by that portion of the charge complained of.
The seventh and last assignment alleges error in the sentence. The prisoner was sentenced upon the second count, charging burglary. He was also sentenced upon the third count, which charges, an entry without breaking. Both sentences take effect from the same date, so that the sentence upon the third count imposes no additional imprisonment. It was probably imposed by the learned judge of the court below in order to avoid bringing the prisoner up. for re-sentence in case this court reversed the judgment on the second count. It was, however, technical error, and as we have sustained the judgment on the second count, the judgment on the third count must be reversed. The offence of entering was merged in the higher offence of breaking and entering; the greater includes the less. Commonwealth v. Birdsall, 19 P. F. Smith 482, does not [66]*66apply. There the different counts in the indictment showed different offences. Here the offence was the same, and this appears from the indictment itself.
So much of the judgment of the Oyer and Terminer as imposes an imprisonment of six years and four months under the second count of the indictment is affirmed, and so much of the judgment as imposes imprisonment of three years and ten months under the third count of said indictment is reversed.