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A

TREATISE

ON

CRIMES

AND

MISDEMEANORS.

BOOK THE FOURTH.

OF OFFENCES AGAINST PROPERTY, PUBLIC OR PRIVATE.

CHAPTER THE FIRST.

Of Burglary (1) Ir is laid down in the more ancient authorities that the Definition offence of burglary may be committed by the felonious of the ofbreaking and entering of a church, and the walls or gates of a town, in time of peace, as well as by the felonious

.

a

(1) New York.—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 by fence or inclosure, is not burglary, and per curiam, “ the store was not within the curtiloge, as there was no fence or yard, inclosing the dwelling house and store, so as to bring them within one enclosure. This brings the case within that of the King v. Garland (Leach 130) and distinguishes it from Gibson's case (Leach 287.) The People v. Parker, 4 Jobns. Rep. 424.

New JERSEY.—The following points were decided in the case of the State v. Wilson, (1 Cox's Rep. 439.). 1. If a man lifts up the latch of an outward door, or if the out-ward door being open, he enters and unlatches or

1

VOL. II.

breaking and entering of a private house. (a) But the *more material enquiry at the present day relates to the breaking and entering of private houses, or, in the language of the books, the mansion houses of individuals : and this species of the offence appears to be well described, as - A breaking and entering the mansion-house of another, in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. (b)

c. 10.

a Staundf. P. C. 30. 22 Ass. pl. 95. Britt. thinks that the word burglaria was brought

Dalt. c. 99. Croin, 31. Spelm. in here by the Normans, as he does not find it rerb. Burglaria. In 3 Inst, 64, Lord Coke amongst the Saxons : and be says that burgives as a reason for considering the break- glalores, or burgatores, were so called, quod. ing and entering a church as a burglary, that dum alii per campos latrocinantur eminus, the church is domus mansionalis omnipotentishi burgos pertinaciùs effringunt, et depræDei : but Hawkins says that he does not find dantur. The crime, however, appears to this nicety countenanced by the more ancient have been noticed in our earliest laws, in the authors; and that the general tevor of the common genus of offences denominated Hanold books seems to be that burglary may be secken ; and by the ancient laws of Canutus, committed in breaking houses, or churches, or and of H. 1. to have been punishable with the walls, or gates, of a town. 1 Hawk. P. death. LI. Canuti, c, 61. Hen. I. c. 13. C. c. 38. s. 17. And in 4 Black. Com. 224. 1 Hale, 547. citing Spelm. Gloss. tit. Hamit is stated that breaking open a church is un- secken, and ibid. tit. Burglaria. Originally, doubtedly burglary.

the circumstance of lime, which is now of 63 Inst. 63, 1 Hale 549. Sum, 79. 1 the very essence of the offence, does not Hawk. P. C. c. 38. s. 1. 4 Black. Com. 224, seem to have been material ; and the malig2 East. P. C. c. 15. s. I. p. 484. 1 Burn. nity of the crime was supposed to consist Just. Burglary, S. 1. The word burglar is merely in the invasion on the right of habitasupposed to have been introduced from Ger- tion, to which the laws of England have almany the Saxons; and to be derived from ways shewn an especial regard, herein agreethe German, burg, a house, and larron, a ing with the sentiments of ancient Rome, as thief; the latter word being from the Latin expressed in the words of Cicero : Quid enlatro. 1 Burn. Just. Burgl. 5. 1. 2 East. P. im sanctius, quid omni religione munitius, C. c. 15. s. I. p. 484. But Sir H. Spelman quàm domus uniuscujusque civium? Hic

unlocks a chamber door, it is such a breaking as is necessary to enter into the crime of burglary.

2. If all the doors are open, and a thief enters, though he should afterwards break open a chest or cupboard, it is not such a breaking as to constitute burglary.

3. Before one can be convicted of burglary, there ought to be evidence to prove that the doors were shut, and were opened by the prisoner, or by his concurrence.

4. If one takes the goods of another out of the place where they were put, though he is detected before they are actually carried away, the larceny is complete. 1 Cox's Rep. 439.

PENNSYLVANIA.-In an indictment for burglary, the word mansion-house, is a good description of the premises : the court say, " the house is sufficiently

, described as a dwelling house, by the word mansion.” Commonwealth v. Pennock, 3 Serg. & R. 199.

MASSACHUSETTS.-Burglary was a capital offence in this state, until the Statute of 1805, Chap. 101 ; by which Statute the punishment was reduced to hard labour for life, when committed by a person without being armed with a dangerous weapon, or without arming himself in the house with a dangerous weapon, and without committing an assault upon any person lawfully being in such house. Where the offence is committed with these circumstances of aggravation, it is still punished capitally.

*Pursuing the order of this definition, we may consider, I. Of the breaking and entering: II. Of the mansion-house : III. Of the time; namely, the night: IV. Of the intent to commit a felony

sary.

1. Notwithstanding some loose opinions to the contrary, A breaking which may have been formerly entertained, it is now well in are settled that both a breaking and entering are necessary to boy:b neces. complete the offence of burglary. (c)

With respect to the breaking, it is agreed that it is not every entrance into a house, in the nature of a mere trespass, which will be sufficient, or satisfy the language of the indictment, felonicè et burglariter fregit. (d) Thus, if a man enter into a house by a door, or window, which he finds open, er through a hole, which was made there before, and steal goods; or draw goods out of a house through such door, window, or hole, he will not be guilty of burglary. (e) There must either be an actual breaking of some part of the house, in effecting which more or less of actual force is employed; or a breaking by construction of law, where an entrance is obtained by threats, fraud, or conspiracy.

An actual breaking of the house may be by making a of an achole in the wall; by forcing open the door; by putting back, tual break

ing. picking, or opening the lock with a false key ; by breaking the window; by taking a pane of glass out of the window; by drawing or bending the nails, or other fastening; or by putting back the leaf of a window, with an instrument. And even the drawing or lifting up the latch, where the *door is not otherwise fastened ; the turning the key where [* 902] the door is locked on the inside; or the unloosing any other fastening, which the owner has provided, will amount to a breaking. (f)

It was doubted on one occasion whether a thief, getting into a house by creeping down the chimney, could be found guilty of burglary, as the house, being open in that part, could not be said to have been actually broken; (g) but it

*

are sunt, hic foci-hoc perfugium est ila sanc- d 3 Inst. 64. 1 Hawk. P. C. c. 38. S. 4, tum omnibus, ut inde abripi neminem fas sil. 1 Hale 551, 552. The learned editor of Bacon's Abridgment e Id. Ibid. For if a person leaves his says that his researches had not enabled him doors or windows open, it is his own folly to discover at wlaat particular period time and negligence ; and if a man enters therein was first deemed essential to the offence; but it is no burglary. 4 Black. Com. 226. that it must have been so settled before the f 1 Hale 552. 3 Inst. 64. Sum. 80. 1 reiga of E. VI., as in the fourth year of that Hawk, P. C. c. 38. s. 6, 2 East, P. C. c. 15. king it is expressly laid down that it shall 9. 3. p. 487. not be adjudged burglary, nisi ou le infrein- g i Hale 552, where the learned author der del meason est per noclem, (Bro. tit. says that he was doubtful whether it was Corone, pl. 185) and that, two years before, burglary, and so were some others; but that per noclem is introduced (ld. pl. 180.) as of upon examination it appeared that in the course in the mention of the offence. 1 Bac. creeping down of the prisoner, some of the Ab. Burglary, 539. (ed. 1807.) And see 3 bricks of the chimney were loosened, and fell Inst. 65.

down in the room, which put it out of quesc i Hawk. P. C. c. 38, s. 3. i Hale 551. tion; and direction was given to find it burA Black.Com, 226.

glary.

case.

where

appears to be now agreed that such an entry into a house will amount to a breaking, on the ground that the house is

as much closed as the nature of things will permit. (1) Brown's

A case is reported, in which the breaking was holden to Breaking,

be sufficient, though there was no interior fastening to the

doors which were opened. It appeared that the place there were which the prisoner entered was a mill, under the same roof, fastenings.

and within the same curtilage, as the dwelling house: that through the mill there was an open entrance, or gateway, capable of admitting waggons, and intended for the purpose of loading them more easily with flour, by means of a large aperture, or hatch, over the gateway, communicating with the floor above; and that this aperture was closed by folding doors, with hinges, which fell over it, and remained closed by their own weight, but without any interior fastening; so that persons on the outside, under the gateway, could push them open at pleasure, by a moderate exertion of strength. It was proved that the prisoner entered the

mill in the night, by so pushing open the folding doors, with [* 903] *the intention of stealing flour: and this was holden to be a

sufficient breaking by the learned judge, who tried the prisoner; and the prisoner was accordingly convicted of burglary.(i)

But a different doctrine appears to have been holden by case. The the judges, in a case where, though there were interior fasta trap-door enings to the place broken open, which was the trap-door, or or flap of a flap of a cellar, yet the fastenings were not in use at the cellar being time; and the trap-door or flap remained closed only by the by the compression

compression caused by its natural weight. The prisoner only caused was indicted for stealing some bottles of wine in a dwellingby its natu: house, and afterwards burglariously breaking out of the ral weight; it was hol-' house. It appeared in evidence, that the wine was taken den that from a bin in the cellar of the house, which was a publicthe opening house, and removed by the prisoner from the bin to the trapconstitute a door, or flap, of the cellar, in getting out of which he was sufficient

apprehended. The cellar was closed on the outside, next the breaking.

street, only by the flap, which had bolts belonging to it, for the purpose of bolting it on the inside, and was of considerable size, being made to cover the opening through which the liquors consumed in the public-house were usually let down into the cellar. The flap was not bolted on the night in question : but it was proved to have been down; in which situation it would remain, unless raised by considerable force. When the prisoner was first discovered, his head and shoulders were out of the flap; and upon an attempt being made to lay hold of him, he made a spring, got quite out, and ran away, when the flap fell down, and closed in its usual way,

Callon's

.

h Crompt 32, (6) Dalt. 253. 1 Hawk. P. C. c. 38, s. 6. 2 East, P. C. c. 15. s. 2. P. 485,

i Brown's case, Winlon, Spr. Ass. 1999, car, Buller, J. 2 East, P. C. c. 15, s. 3. p. 487 k Callou's case, cor. Lord Ellenborough, C. J., O. B. November, 1809. MS.

guard.

by its own weight. Upon this evidence it was doubted whether there was a sufficient breaking to constitute the crime of burglary; and the prisoner having been convicted, the question was saved by the learned judge who presided at the trial, for the opinion of the twelve judges, who are understood to have holden the conviction *bad, on the ground that [* 904] there was not a sufficient breaking. (k)

The book 22 Assiz. 95., in which burglary is defined as Breaking a the breaking of houses, churches, walls, courts, or gates in wall, built time of peace, is referred to by Lord Hale, as seeming to lead house for to the conclusion, that where a man has a wall about his its safehouse for its safeguard, if a thief should in the night-time break such wall, or the gate thereof, and finding the doors of the house open, should enter the house, it would be burglary; though it would be otherwise if the thief should get over the wall of the court, and so enter through the open doors of the house. (1) But upon this it has been remarked, that the doctrine referred to by Lord Hale was anciently understood only as relating to the walls or gates of a city; and does not, therefore, support his conclusion, when he applies it to the wall of a private house. (m) And the distinction between breaking and coming over the gate or wall is spoken of by an able writer as being over-refined : for if, as he observes, the gate or wall 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 that if it be not part of the mansion-house for this purpose, then whether it be broken or not is equally immaterial, as in neither case will it amount to burglary. (n)

It should be observed, that the breaking requisite to con- The breakstitute a burglary, is not confined to the external parts of the ing may be house, but may be of an inner door, after the offender has door of the entered by means of a part of the house which he has found house. open. Thus, if A. enter the house of B. in the night time, the outward door being open, or by an open window, *and, 905] when within the house, turn the key of a chamber door, or unlatch it, with intent to steal, this will be burglary.(o) And it will also amount to burglary if a servant in the night time open the chamber door of his master or mistress, whether latched or otherwise fastened, and enter for the purpose committing murder or rape, or with any other felonious design; or if any other person, lodging in the same house, or in a public inn, open and enter another's door, with such evil

of an inner

of

1 1 Hale 559.
m Note (n) 1 Hale 559, ed. 1800,

n 2 East. P. C. c. 15. s. 3. p. 488.

0 1 Hale 553. 1 Hawk. P.C. c. 38. s. 6. Johnson's case, Mich, T. 1786, 2 East, P. C. c. 15. s. 4. p. 488.

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