Qu. As to ing of cup intent. (p) But it has been questioned whether, if a lodger in an inn should, in the night time, open his chamber door, steal goods, and go away, the offence would be burglary; on the ground of his having a kind of special property and interest in his chamber, and the opening of his own door being therefore no breaking of the innkeeper's house. (q) It is clear that the breaking open of a chest, or box, by a the break- thief who has entered by means of an open door or window, boards, &c. is not a kind of breaking which will constitute burglary, fixed to the because such articles are no part of the house. (r) But the freehold. question with respect to the breaking of cupboards, and other things of a like kind, when affixed to the freehold, has been considered as more doubtful. Thus, at a meeting of the judges, upon a special verdict, to consider the point, whether breaking open the door of a cupboard let into the wall of the house were burglary or not, it appears that they were divid[906] ed upon the question. (s) But Lord *Hale says, that such breaking is not burglary at common law. (t) And Mr. J. Foster thinks that, with regard to cupboards, presses, lockers, and other fixtures of the like kind, a distinction should be taken, in favour of life, between cases relative to mere property, and such wherein life is concerned. He says, "In questions between the heir or devisee, and the executor, those fixtures may, with propriety enough, be considered as annexed to, and parts of the freehold. The law will presume, that it was the intention of the owner, under whose bounty the executor claims, that they should be so considered; to the end that the house might remain to those who, by operation of law, or by his bequest, should become entitled to it, in the same plight he put it, or should leave it, entire and undefaced. But in capital cases, I am of opinion that such fixtures which merely supply the place of chests, and other ordinary utensils of household, should be considered in no other light than as mere moveables, partaking of the nature of those utensils, and adapted to the same use.” (u) Of a breaking out of the house. Though it was said to be the law, that the entering into the house of a person, without breaking it, with an intent to commit some felony, and afterwards breaking the house in the night-time to get out, was burglary; yet, the doctrine was questioned by great authority: (x) and it was p 1 Hale 553, 554, 4 Blac. Com. 227. Binglose's case, 2 W. and M. MS. Denton, cited 2 East. P. C. c. 15. s. 4. p. 488. Gray's case, 1 Str. 481. Sum. 82, 84. 1 Bac. Ab. Burglary. (A) q 1 Hale 554. But upon this it is observed, that if another person should open such lodger's door burglariously, it must be laid to be the mansion of the innkeeper, and that a guest may commit larceny of the things delivered to his charge. 2 East. P. C. c. 15. s. 4. p. 488. r 1 Hale 523, 524, 555. 1 East, P. C. c. 15. s. 5. p. 488, 489. s Fost. 108. citing MS. Denton. The meeting of the Judges was in January 1690. t Hale 527. u Fost. 109. And see 2 East. P. C. c. 15. s. 5. p. 439. x By Lord Holt and Trevor, C. J. in Clarke's case, O. B. 1707. 2 East. P. C. c. 15. s. 6. p. 490. And the question is also stated in 1 Hale 554. where he says, "If a man enter in the night time by the doors thought expedient to remove the doubt by legislative enactment. *The statute 12 Anne, stat. 1. c. 7. s. 3. (reciting [* 907] that there had been some doubt upon the subject) declares and enacts, "that if any person shall enter into the mansion or dwelling house of another by day or by night, without breaking the same, with an intent to commit felony, or being in such house shall commit any felony, and shall in the night time break the said house to get out of the same, such person is and shall be adjudged and taken to be guilty of burglary, and shall be ousted of the benefit of his and her clergy, in the same manner as if such person had broke and entered the said house in the night time, with an intent to commit felony there." ing by con Having mentioned these points relating to an actual break- Of a breaking, we may now enquire concerning a breaking by con- struction of struction of law, where an entrance is obtained by threats, law. fraud, or conspiracy. threats. Where in consequence of violence commenced or threaten- By ed, in order to obtain entrance to a house, the owner, either from apprehension of the violence, or in order to repel it, opens the door, and the thief enters, such entry will amount to a breaking in law: (y) for which some have given as a reason that the opening of the door by the owner, being occasioned by the felonious attempt of the thief, is as much imputable to him as if it had been actually done by his own hands. (z) But if, upon a bare assault upon a house, the owner fling out his money to the thieves, it will not be burglary; (a) though if the money were taken up in the owner's presence, it is admitted that it would be robbery. (b) And though the assault were so considerable as to break a hole in the house; yet if there were no entry by the thief, but only a carrying away of the money thrown out to him by the owner, the offence could not, it should seem, be burglary, though certainly robbery. (c) 908] Where an act is done in fraudem legis, the law gives no By fraud. benefit thereof to the party. Thus if thieves, having an intent to rob, raise hue and cry, and bring the constable, to whom the owner opens the door, and they, when they come open, with the intent to steal, and is pursued, whereby he opens another door to make his escape; this, I think, is not burglary, against the opinion of Dalt. p. 253. (new edit. p. 487.) out of Sir Francis Bacon; for fregil et. exivit, non fregit et intravit." Lord Bacon thought it was burglary. Elem. 65. y Crompt. 32. (a) 1 Hale 553. 2 East. P. C. c. 15. s. 2. p. 486. ≈ 1 Hawk. P. C. c. 38. s. 7. a 1 Hawk. P. C. c. 38. s. 3. b Sum. 81. 2 East. P. C. c. 15. s. 2. p. 436. c 1 Hale 555, but he says, that some have held it burglary, though the thief never enter ed the house; and that it is reported to have been so adjudged by Saunders, chief baron. Crompt. 31. b. Lord Hale subjoins to this doctrine tamen quære; and certainly, as a part of the statement of the case is, that there was no entry into the house, and as an entry is, as will be presently shewn, as essential a part of the offence as the breaking, it seems difficult to discover the ground on which it could have been ruled to be burglary. The editor of Lord Hale (ed. 1800) states in a note, that it was adjudged by Montague, chief justice of the C. B. and that Saunders only related it. in, bind the constable, and rob the owner, it is burglary. (d) And, upon the same principle, the getting possession of a dwelling house by a judgment against the casual ejector, obtained by false affidavits without any colour of title, and then rifling the house, was ruled to be within the statute against breaking the house, and stealing the goods therein. (e) So if a man go to a house under pretence of having a search warrant, or of being authorised to make a distress, and by these means obtain admittance, it is, if done in the nighttime, a sufficient breaking and entering, to constitute burglary, or, if done in the day-time, house-breaking. (ƒ) If admission to a house be gained by fraud, not carried on under the cloak of legal process, as by a pretence of business, it will also amount to a breaking by the construction of law. Accordingly it was adjudged, that where thieves came to a [909] house in the night-time, with intent to commit a robbery, and knocked at the door, pretending to have business with the owner, and, being by such means let in, robbed him, they were guilty of burglary. (g) And so where some persons took lodgings in a house, and afterwards, at night, while the people were at prayers, robbed them: it was considered, that the entrance into the house being gained by fraud, with an intent to rob, the offence was burglary. (h) For the law will not endure to have its justice defrauded by such evasions. (i) By conspiracy. A case is also reported, where the entrance to the house was gained by deluding a boy who had the care of it. It appeared upon the evidence, that the prisoner was acquainted with the house, and knew that the family were in the country; and that upon meeting with the boy who kept the key, she desired him to go with her to the house; and, by way of inducement, promised him a pot of ale. The boy accordingly went with her, opened the door, and let her in; upon which she sent him for the pot of ale, and, when he was gone, robbed the house, and went away. And this being in the night time, it was adjudged that the prisoner was clearly guilty of burglary. (k) The breaking may also be by conspiracy. Thus where a servant conspired with a thief to let him into his master's house to commit a robbery, and in consequence of such agreement, opened the door or window in the night time, and let him in; this, according to the better opinion, was considered to be burglary in both the thief and the servant. () d 3 Inst. 64. 1 Hale 552, 553. Sum. 81. Crompt. 32 b. Kel. 44, 82. 1 Hawk. P. C. c. 38. s. 10. 4 Black. Com. 226. e Farre's case, Kel. 43. f Per Cur. in Gascoigne's case, 1 Leach 284. g Le Mott's case, Kel. 42. 1 Hawk. P. C. c. 38. s. 8. h Casey and Cotter (case of) Kel. 62, 63, 1 Hawk. P. C. c. 38, s. 9. referred to by the court, in giving judgment in Semple's case, 1 Leach 424. i 1 Hawk. P. C. c. 38. s. 9. 4 Black. Com. 227. 2 East. P. C. c. 15, s. 2. p. 485. k Hawkins's (Ann) case, O. B. 1704. 1 East. P. C. c. 15. s. 2. p. 485, cited from MS. Tracy 80. and MS. Suin. 1 Hale 553. 1 Hawk. P. C. c. 38. s. 14. 4 Black. Com. 227. In Dalt. c. 99. p. 253. (later ed. p. 487.) it is supposed only to be *And this doctrine is confirmed by a subsequent decision. Two men were indicted for burglary; and, upon the evidence, it appeared, that one of them was a servant in the house where the offence was committed; that in the night time he opened the street door, let in the other prisoner, and shewed him the side-board, from whence the other prisoner took the plate; that he then opened the door, and let the other prisoner out; did not go out with him, but went to bed. And upon these facts being found specially, all the judges were of opinion, that both the prisoners were guilty of burglary; and they were accordingly executed. (m) vants. It may be here mentioned, that in the case of a servant By seropening a door of his master's house for a felonious purpose, without any plan or conspiracy with other persons to commit a robbery, it seems to have been considered, that the question whether such act will amount to a breaking must depend upon the point, whether the door might have been opened by the servant in the course of his trust and employment. Thus, it is said, that if a servant unlatch a door, or turn a key in a door of his master's house, and steal property out of the room; such opening of the door, being within his trust, is not a breaking: but that if a servant break open a door, whether outward or inward, (as a closet, study, or counting house,) and steal goods, such opening, not being within his trust, will amount to a breaking of the house, either within the statutes relating to the breaking of dwelling houses in the day time, or within the law of burglary. (n) cessary to With respect to the entering necessary to constitute bur- of the englary; it is agreed, that any, the least, entry either with the tering newhole or any part of the body, hand, or foot, or with any constitute instrument or weapon, introduced for the purpose of com- a burglary. mitting *a felony, will be sufficient. (0) Thus, where the prison- [* 911] er, in the night time, cut a hole in the window shutters of the prosecutor's shop, which was part of the dwelling-house, and putting his hand through the hole, took out watches and other things, which hung in the shop, within his reach, it was holden to be burglary. (p) So, if a thief breaks the window of a house in the night time, with an intent to steal, and puts in a hook or other engine, to reach out goods; or puts a pistol in at the window with intent to kill; this is burglary, though his hand be not within the window. (q) And, in a case where thieves came in the night to rob A., who perceiving it opened his door, issued out, and struck one of the Discharging a gun, &c. on the outside of the house. Introduction of an instrument, in the act thieves with a staff, when another of them, having a pistol in his hand, and perceiving persons in the entry ready to interrupt them, put his pistol within the door, over the threshold, and shot, in such manner that his hand was over the threshold, but neither his foot nor any other part of his body, it was adjudged burglary by great advice. (r) Though it is admitted that a person putting a pistol in at a window with intent to kill, thereby makes a sufficient entry, to constitute a burglary, yet it has been questioned whether if he should shoot without the window, and the bullet come in, the entry would be sufficient. (s) It is, however, elsewhere laid down, that to discharge a loaded gun into a [* 912] house is a sufficient entry. (t) And a learned *writer has observed, that it seems difficult to make a distinction between this kind of implied entry, and that which is effected by means of an instrument introduced within the window or threshold, for the purpose of committing a felony; unless it be that the one instrument by which the entry is effected is holden in the hand, and the other discharged from it: but that no such distinction is any where laid down in terms. (u) It appears, however, that the mere introduction of an instrument, in the act of breaking the house, will not make a sufficient entry; but that the instrument by which the entry of breaking is effected must be introduced for the purpose of committing a the house. felony. So that where a thief broke a hole in a house, intending to rob the owner, but had not otherwise entered, when the owner for fear threw out his money to him, and he went off with it; the better opinion appears to have been, that it was not burglary. (x) In another case it appeared in evidence that the prisoners had bored a hole with an instrument called a centre-bit through the pannel of a house door, near to one of the bolts by which it was fastened; and that some pieces of the broken pannel were found withinside the threshold of the door; but it did not appear, that any instrument except the point of the centre-bit, or that any part of the bodies of the prisoners had been withinside the house, or that the aperture made was large enough to admit a man's hand: and the court held this not to be a sufficient entry. (y) Where a glass window was broken, and the window opened with the hand, but the shutters in the inside were not broken, it was ruled to be burglary, but considered as going to the extremity of the law. (≈) r 1 Hale 553. Crompt. 32 (a) 2 East. P. C. c. 15. s. 7. p. 490. s 1 Hale 555, where it is said that this seems to be no entry, to make a burglary : but a quære is added. t 1 Hawk. P. C. c. 38. s. 11,; and it appears to have been ruled by Lord Ellenborough, C. J. that a person discharging a gun from the outside of a field, into it, so as that the shot must have struck the soil, was guilty of breaking and entering the field. See Pick- u 1 East. P. C. c. 15. s. 7. p. 490. y Hughes and others (case of) O. B. 1785. 1 Leach 406. 1 Hawk. P. C. c. 38. s. 12. 2 East. P. C. c. 15. s. 7. p. 491. z Roberts's, alias Chambers's case, O. B. 1702. 1 East. P. C. c. 15, s. 3. p. 487. It was |