Punishment of burglary 359 What building within the curtilage shall be deemed part of the dwelling house Entering a dwelling-house in the night with intent to commit felony. Proof of the breaking 359 359 359 360 360 362 363 363 363 364 364 364 364 365 365 366 366 367 367 367 368 Proof of the parish-local description offence having been committed in the night-time *359] *Proof of the breaking out of a dwelling-house, etc. Indictment for being found by night armed with intent to break Nature of offence of having possession of implements of house 381 381 382 384 385 386 386 387 387 388 Offence at common law. Burglary is a felony at common law, and a burglar is defined by Lord Coke as "he that in the night-time breaketh and entereth into a mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not." 3 Inst. 63. And this definition is adopted by Lord Hale.1 549; Hawk. P. C. b. 1, c. 38, s. 1. 1 Hale, P. C. By statute. The former statute on this subject (the 7 & 8 Geo. 4, c. 29) is repealed. The provisions against this offence are contained in the 24 & 25 Vict. c. 96. Burglary by breaking out. By s. 51, "whosoever shall enter the dwelling-house of another with intent to commit any felony therein, or being in such dwelling-house shall commit any felony therein and shall in either case break out of the said dwelling-house in the night, shall be deemed guilty of burglary." Punishment of burglary. By s. 52, "whosoever shall be convicted of the crime of burglary shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement." What building within the curtilage shall be deemed part of the dwelling-house. By s. 53, "no building, although within the same curtilage with any dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house for any of the purposes of this Act, unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and inclosed passage leading from the one to the other." Entering a dwelling-house in the night with intent to commit felony. By s. 54, "whosoever shall enter any dwelling-house in the night, with intent to commit any felony therein, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not less than three [now five] years, or to be impris oned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement." Being found by night armed, etc., with intent to break into any house, etc. By s. 58, "whosoever shall be found by night armed with any dangerous or offensive weapon or instrument whatsoever, with intent to break or enter into any dwelling-house or other building *whatsoever, and to commit any felony therein, or shall be found by night having in his possession without lawful excuse [*360 (the proof of which shall lie on such person) any picklock key, crow 1 A proprietor and clerk of a store, being apprised of an intended burglary therein, took no steps to prevent it, but provided a force to capture them and did so; held that the owner's knowledge did not affect the question of the defendant's guilt. Thompson v. State, 18 Ind. 386. S. jack, bit, or other implement of housebreaking, or shall be found by night having his face blackened, or otherwise disguised, with intent to commit any felony, or shall be found by night in any dwelling-house, or other building whatsoever, with intent to commit any felony therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor." By s. 59, "whosoever shall be convicted of any such misdemeanor, as in the last preceding section mentioned, committed after a previous conviction either for felony or such misdemeanor, shall, on such subsequent conviction, be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding ten years, and not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor." For the definition of night, see 24 & 25 Vict. c. 96, s. 1, post, p. 382. Proof of the breaking. What shall constitute a breaking is thus described by Hawkins: "It seems agreed, that such a breaking as is implied by law in every unlawful entry on the possession of another, whether it be opened or be inclosed, and will maintain a common indictment, or action of trespass quare clausum fregit, will not satisfy the words felonice et burglariter, except in some special cases, in which it is accompanied with such circumstances as make it as heinous as an actual breaking. And from hence it follows, that if one enter into a house by a door which he finds open, or through a hole which was made there before, and steals goods, etc., or draw any thing out of a house through a door or window which was open before, or enter into the house through a door open in the daytime, and lie there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary." Hawk. P. C. b. 1, c. 38, ss. 4, 5. But breaking a window, taking a pane of glass out by breaking or bending the nails or other fastenings, the drawing of a latch, when a door is not otherwise fastened, picking open a lock with a false key, putting back the lock of a door or the fastening of a window, with an instrument, turning the key where the door is locked on the inside, or unloosing any other fastening which the owner has provided; these are all proofs of a breaking. 2 East, P. C. 487; 2 Russ. Cri. 3, 5th ed. 2 By the 24 & 25 Vict. c. 96, s. 54, supra, entering a dwelling-house in the night with intent to commit a felony is made a substantive 1 On the trial of an indictment for breaking and entering a building and stealing therefrom, a number of burglarious tools and implements found together in the possession of the defendant, at the time of his arrest, may be brought into court, and exhibited to the jury, although some of them only, and not the residue, are adapted to the commission of the particular offence in question. Commonwealth v. Williams, 2 Cush. 582. S. 1 So, removing a stick of wood from an inner cellar-door, and turning a button. Smith's Case, 4 Rog. Rec. 63. S. felony. In this case no breaking is necessary, and the offence is not, therefore, strictly speaking, burglary; but from its being in all other respects similar to that offence, it is classed under that head. A count framed on this section will frequently be useful where the breaking is doubtful. Proof of the breaking-doors. Entering the house through an open door is not, as already stated, such a breaking as to constitute a burglary. Yet if the offender enters a house in the night-time, through an open door or window, and when within the house turns *the key of, or unlatches a chamber door with intent to commit felony, it is a burglary.' Hale, P. C. 553. So where the [*361 prisoner entered the house by a back-door which had been left open by the family, and afterwards broke open an inner door and stole goods out of the room, and then unbolted the street door on the inside and went out; this was held by the judges to be burglary. R. v. Johnson, 2 East, P. C. 488. So where the master lay in one part of the house, and the servants in another, and the stair-foot door of the master's chamber was latched, and a servant in the night unlatched that door, and went into his master's chamber with intent to murder him, it was held burglary. R. v. Haydon, Hutt. 20; Kel. 67; 1 Hale, P. C. 554; 2 East, P. C. 488. Whether the pushing open the flap or flaps of a trap-door, or door in a floor, which closes by its own weight, is a sufficient breaking, was for some time a matter of doubt. In the following case it was held to be a breaking. Through a mill (within a curtilage) was an open entrance or gateway, capable of admitting wagons, intended for the purpose of loading them with flour through a large aperture communicating with the floor above. This aperture was closed by folding doors with hinges, which fell over it, and remained closed with their own weight, but without any interior fastenings, so that persons without, under the gateway, could push them open at pleasure. In this manner the prisoner entered with intent to steal; and Buller, J., held that this was a sufficient breaking to constitute the offence of burglary. R. v. Brown, 2 East, P. C. 487. In another case, upon nearly similar facts, the judges were equally divided in opinion. The prisoner broke out of a cellar by lifting up a heavy flap, whereby the cellar was closed on the outside next the street. The flap had bolts, but was not bolted. The prisoner being 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. R. v. Callan, Russ. & Ry. 157. It has been observed, that the only difference between this and R. v. Brown (supra) seems to be, that in the latter there were no internal fastenings, which in Callan's case 1State v. Wilson, 1 Coxe, 439. The pushing open a closed door is a sufficient breaking within the meaning of the law to constitute burglary. State v. Reed, 20 Ia. 413. S. there were, but were not used. of R. v. Brown has been since be considered to be law. Russ. &. Ry. 158 (n.). The authority followed, and that decision may now 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 opinion that the conviction was right. R. v. Russell, 1 Moody, C. C. 377. Unless a distinction can be drawn between breaking into a house and breaking out of it, this case seems to overrule. R. v. Lawrence, 4 C. & P. 231, 19 E. C. L. *Proof of the breaking-windows. Where a window is *362] open, and the offender enters the house, this is no breaking, as already stated, ante, p. 360. 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 parlor window, 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 decision under which this could be held to be a breaking.1 R. v. Smith, 1 Moody, C. C. 178. 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 in his arm, 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 1 In burglary, the mere raising of a partly opened sash so as to admit a person is not a breaking. Commonwealth v. Strupney, 105 Mass. 533. The raising of a window sash which was down and which was the only obstacle to ingress, through the window, and the entry of the accused through the same is a sufficient breaking in law to constitute burglary. Frank v. State, 39 Miss. 705. Removal of an iron grating covering an area, opposite a cellar window is a breaking. People v. Nolan, 22 Mich. 229. 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 burglary. Commonwealth v. Stephenson, 8 Pick. 354. S. |