The Court charged the jury that a burglary was defined to be a breaking and entering the-mansion / house of another, in the night,with intent to commit a felony, whether such intent he executed or not.- That this case depended principally whether there was a breaking and entry in the night time. The evidence was, that the prisoners were [374]*374found in possession of goods taken from the house of Mr. pearsoi¡ on t^e njght of the 26th of April ; and that it was in proof before the Court and jury the entry was madeint0 house by forcing open the window shutter, which was thrown to, and left without being fastened ; that it was whether the window sash was raised or not; that if the jury were of opinion it was not raised when the family retired to bed, the raising it for the purpose of entering into the house, would be a breaking.
And that the other question, whether the act was committed in the night time, was a proper one for the jury to decide. The prisoners were found in possession of the property taken from the house, the same morning, about day-light, near one quarter of a mile from the house.— They were found in possession of an instrument well adapted, and which was probably used to open the window; that it would seem, from the'evidence, that the act must have been committed in the night time, , as they were arrested about day-light, in Torbet street, a considerable distance from the place where the felony "was committed, and left it to the jury, under all the circumstances of the case, whether the prisoners were guilty of breaking and entering the house of Mr. Pearsoll in the night time, with intent to commit a felony.
The jury found Brown guilty of burglary, and Edwards guilty of grand larceny.
¡Note.—The above definition of burglary agrees with the books. See 3 Inst. 63. 1 Hawk. 101. Wils. Lee. vol, 3, p. 63.
It is laid down that there must be:
1. A breaking and entering.
8. Must be in the mansion or dwelling house’of another.
[375]*3753. It must be in the nighttime, with intention to commit a felony.
1. There must be a breaking and entering. The breaking and entry, however, need not be by force, it need not be actual, but may be implied in law, as where a man comes down a chimney, or unlocks a door; lifts the latch, or obtains an entry in by fraud, or by colour 0f law, &c. In each of these cases, the breaking is implied. Hawk. P. C. 102. Kelynge, 42, 63. Bac. abr. vol. 1. p. 333, tit. burglary, letter A. So entering the house either in the day or night, with intent to commit a felony, and breaking out in the night, is burglary. 12 Ann Stat. 1 cap. 7. 2 Stra. 881.
Where a servant opened his lady’s chamber, which was fastened with a spring lock, with a design to lavish her, it was held to be burglary. 1 Stra. 481.
If a servant in the house in the night time, open the street door, and let in another person who robs the house, and afterwards the servant opens the door and lets out the other person, it is burglary in both, although the servant did not go out of the house. 2 Stra. 880. Removing a stick of wood from an inner cellar door, and turning abut-ton, by which the door was fastened, in the night, with a felonious intent, is a sufficient breaking of a house to constitute burglary, though the outer cellar door may not have been fastened. City Hall Rec. vol. 4, p. 62; but see Coxe’s Rep. 439. Post. 108. East. P. C. 489.
It is burglary to break out of a house, into which the thief entered in the night with an intent to steal, though he did not break in entering.
To cut a hole in the night time in the window shutters of a shop, part of a dwelling house, and by putting the hand through the hole, to take out goods, is a sufficient entry to constitute burglary. Post. 107.— East. P. C. 490. ! °
p¡n^ry
Shooting a ball through the window, or boring a hole through the door, are not burglaries. Leach, 452. East, P. C. 490,
The least entry, however, is sufficient, it may be made either with the [376]*376whole or any part of the body; by stepping the foot over the threshold of the door, or inserting the hand or a hook through a window, &c. Fost. 107. Hawk. P. 0.103. Bac. abr. vol. 1, p. 334, title burglary, letter B. Coxe’s Rep. p. 439.
is said by Hawk. b. 9, c. 38, § 11, that it may be a house Wherever a man dwells but for a part of the year, or a house which one has hired to live in, and broughtpart ofthegoodsinto, buthas notyet lodged in, or a chamber in one of the inns of Court wherein a person usually lodges, or a house which a man’s wife hires without his privity, and lives in by herself without him, may be called his dwelling house, and will sufficiently satisfy the words domus mansionalis in the indictment, whether any person were actually therein or not at the time of the offence. 1 Hale, 556. 4 Coke, 40. Kely.. 43. 46. Bac, abr. vol. 1, p.335, tit. burglary, letter E. Blac. Com. vol. 4, p. 285. Wils. Lectures, vol. 3, p. 63. It
Must be the mansion or dwelling house of another.
Also, all outbuildings, as barns, stables, dairy houses, &c. adjoining to a house, are looked upon as part thereof, and consequently bm’glary may be committed in them; but if they are removed at any distance from the house, it seems that it has not been usual' of late to proceed against offences therein as burglaries. Hawk. P. C. vol. 1, p. 163.
It was held the breaking and entering in the night time a bake house, eight or nine yards distant from the dwelling house, and only a palo reaching between them, was burglary. 1 Hale, 558; but see Leach, 171, 2 n.
It is not burglary to break in the night an out house occupied with a dwelling house, but separated therefrom by an open passage eight feet wide, and not connected with the dwelling house by any fence inclosing both the out hous§ and dwelling house. Leach, 171.
A shop adjoining, built close to a house, and under the same roof, (there being a court yard before the house, and shop enclosed by a brick wall, three feet high, which included both the house and shop, and „ in which wall was a gate fastened by a latch, which served as a communication to both house and shop,) is part of the dwelling house, although there be no internal communication between the shop and [377]*377the house, and although no person sleep in the shop. Leach, 396. East. P. C. 491. 508. See also Leach, 221, 222, note (A) 893. East. P. C. 498. Post. 76. 2 Bos. and Pul. 503.
The prosecutor left his house in London and went to Cornwall, with intent to return, and sent his wife and family out of town, and left the key with a friend to look after the house; after he had been gone month, no person being in the house, it was broken open in the night and robbed of divers goods; he returned a month after, with his fami\f', and inhabited there ; adjudged burglary. East. P. C. 496.
Breaking open, in the night time, á store, at the distance of twenty feet from a dwelling house, but not connected with it by fence or inclosure, is not burglary. 4 Johns. Rep. 424. 1
A store, in which no person slept, and from which there was no communication into other rooms in the house occupied by a family, is not such a dwelling 'house as that burglary can be committed therein. City Hall Rec. vol 3, p. 192.
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The Court charged the jury that a burglary was defined to be a breaking and entering the-mansion / house of another, in the night,with intent to commit a felony, whether such intent he executed or not.- That this case depended principally whether there was a breaking and entry in the night time. The evidence was, that the prisoners were [374]*374found in possession of goods taken from the house of Mr. pearsoi¡ on t^e njght of the 26th of April ; and that it was in proof before the Court and jury the entry was madeint0 house by forcing open the window shutter, which was thrown to, and left without being fastened ; that it was whether the window sash was raised or not; that if the jury were of opinion it was not raised when the family retired to bed, the raising it for the purpose of entering into the house, would be a breaking.
And that the other question, whether the act was committed in the night time, was a proper one for the jury to decide. The prisoners were found in possession of the property taken from the house, the same morning, about day-light, near one quarter of a mile from the house.— They were found in possession of an instrument well adapted, and which was probably used to open the window; that it would seem, from the'evidence, that the act must have been committed in the night time, , as they were arrested about day-light, in Torbet street, a considerable distance from the place where the felony "was committed, and left it to the jury, under all the circumstances of the case, whether the prisoners were guilty of breaking and entering the house of Mr. Pearsoll in the night time, with intent to commit a felony.
The jury found Brown guilty of burglary, and Edwards guilty of grand larceny.
¡Note.—The above definition of burglary agrees with the books. See 3 Inst. 63. 1 Hawk. 101. Wils. Lee. vol, 3, p. 63.
It is laid down that there must be:
1. A breaking and entering.
8. Must be in the mansion or dwelling house’of another.
[375]*3753. It must be in the nighttime, with intention to commit a felony.
1. There must be a breaking and entering. The breaking and entry, however, need not be by force, it need not be actual, but may be implied in law, as where a man comes down a chimney, or unlocks a door; lifts the latch, or obtains an entry in by fraud, or by colour 0f law, &c. In each of these cases, the breaking is implied. Hawk. P. C. 102. Kelynge, 42, 63. Bac. abr. vol. 1. p. 333, tit. burglary, letter A. So entering the house either in the day or night, with intent to commit a felony, and breaking out in the night, is burglary. 12 Ann Stat. 1 cap. 7. 2 Stra. 881.
Where a servant opened his lady’s chamber, which was fastened with a spring lock, with a design to lavish her, it was held to be burglary. 1 Stra. 481.
If a servant in the house in the night time, open the street door, and let in another person who robs the house, and afterwards the servant opens the door and lets out the other person, it is burglary in both, although the servant did not go out of the house. 2 Stra. 880. Removing a stick of wood from an inner cellar door, and turning abut-ton, by which the door was fastened, in the night, with a felonious intent, is a sufficient breaking of a house to constitute burglary, though the outer cellar door may not have been fastened. City Hall Rec. vol. 4, p. 62; but see Coxe’s Rep. 439. Post. 108. East. P. C. 489.
It is burglary to break out of a house, into which the thief entered in the night with an intent to steal, though he did not break in entering.
To cut a hole in the night time in the window shutters of a shop, part of a dwelling house, and by putting the hand through the hole, to take out goods, is a sufficient entry to constitute burglary. Post. 107.— East. P. C. 490. ! °
p¡n^ry
Shooting a ball through the window, or boring a hole through the door, are not burglaries. Leach, 452. East, P. C. 490,
The least entry, however, is sufficient, it may be made either with the [376]*376whole or any part of the body; by stepping the foot over the threshold of the door, or inserting the hand or a hook through a window, &c. Fost. 107. Hawk. P. 0.103. Bac. abr. vol. 1, p. 334, title burglary, letter B. Coxe’s Rep. p. 439.
is said by Hawk. b. 9, c. 38, § 11, that it may be a house Wherever a man dwells but for a part of the year, or a house which one has hired to live in, and broughtpart ofthegoodsinto, buthas notyet lodged in, or a chamber in one of the inns of Court wherein a person usually lodges, or a house which a man’s wife hires without his privity, and lives in by herself without him, may be called his dwelling house, and will sufficiently satisfy the words domus mansionalis in the indictment, whether any person were actually therein or not at the time of the offence. 1 Hale, 556. 4 Coke, 40. Kely.. 43. 46. Bac, abr. vol. 1, p.335, tit. burglary, letter E. Blac. Com. vol. 4, p. 285. Wils. Lectures, vol. 3, p. 63. It
Must be the mansion or dwelling house of another.
Also, all outbuildings, as barns, stables, dairy houses, &c. adjoining to a house, are looked upon as part thereof, and consequently bm’glary may be committed in them; but if they are removed at any distance from the house, it seems that it has not been usual' of late to proceed against offences therein as burglaries. Hawk. P. C. vol. 1, p. 163.
It was held the breaking and entering in the night time a bake house, eight or nine yards distant from the dwelling house, and only a palo reaching between them, was burglary. 1 Hale, 558; but see Leach, 171, 2 n.
It is not burglary to break in the night an out house occupied with a dwelling house, but separated therefrom by an open passage eight feet wide, and not connected with the dwelling house by any fence inclosing both the out hous§ and dwelling house. Leach, 171.
A shop adjoining, built close to a house, and under the same roof, (there being a court yard before the house, and shop enclosed by a brick wall, three feet high, which included both the house and shop, and „ in which wall was a gate fastened by a latch, which served as a communication to both house and shop,) is part of the dwelling house, although there be no internal communication between the shop and [377]*377the house, and although no person sleep in the shop. Leach, 396. East. P. C. 491. 508. See also Leach, 221, 222, note (A) 893. East. P. C. 498. Post. 76. 2 Bos. and Pul. 503.
The prosecutor left his house in London and went to Cornwall, with intent to return, and sent his wife and family out of town, and left the key with a friend to look after the house; after he had been gone month, no person being in the house, it was broken open in the night and robbed of divers goods; he returned a month after, with his fami\f', and inhabited there ; adjudged burglary. East. P. C. 496.
Breaking open, in the night time, á store, at the distance of twenty feet from a dwelling house, but not connected with it by fence or inclosure, is not burglary. 4 Johns. Rep. 424. 1
A store, in which no person slept, and from which there was no communication into other rooms in the house occupied by a family, is not such a dwelling 'house as that burglary can be committed therein. City Hall Rec. vol 3, p. 192.
Burglary may be committed in a house standing near enough to be used with 'the dwelling house, or enclosed in the same fence with it. 1 Hayw. 102, 242. ■
To enter in the night feloniously, through a chimney into a store, from which chimney there is no entrance into the dwelling part of the house except through the store, is a burglary. City Hall Rec. vol. 4, p. 63.
To break into a store, from which there is a communication into a room occupied for sleeping, by a clerk belonging to the family of the owner of the store, whose family resides at a separate place, is a burglary. Ibid. vol. 5, p. 10.
It must be *n t*lei night !™.e W.lt^1 temon to commit a felony,
It is laid down in all the books, the breaking and entering must be in the night, when the day-light has so far disappeared that the countenance of aman cannot be discerned. As to what shall be accounted night ° for this purpose. Anciently the day was accounted to begin only from sun rising, and to end immediately upon sunset; but it is now [378]*378generally agreed, that if there be day-light enough begun or left, either by the light of the sun or twilight, whereby the countenance of a person may be reasonably discerned, it is no burglary, but that this does not extend to moonlight, for then many midnight burglaries would go unpunished. East. C. L. p. 509. 4 Blac. Com. 224. 1 Hale, 550. 1 Hawk. ch. 38. 1 Bac. Ab. 541.
The indictment for burglary should lay a noctaavter, as the omission of that was held fatal. Chip. Rep. 32.
The breaking and entry must be with an intent to commit a felony; but it seems unnecessary that the intent should be executed. 1 Hale" 559, 561. East. C. L. p. 509. Kel. 30. Hawk. P. C. 105. Bac. Abr, vol. 1, p. 336. tit. Burglary, letter (F.)
The breaking and entering a dwelling house, in the night time, with intent to cut off the ear of an inhabitant, is not a burglary. 7 Mass. Rep. 245 ; but see Van Riper’s case, City Hall Rec. vol. 2, p. 45. It seems the breaking and entering a house in the night, feloniously, is the gist of the offence, rather than the consumatíon of the intent.