A TREATISE ON CRIMES AND MISDEMEANORS. BOOK THE FOURTH. OF OFFENCES AGAINST PROPERTY, PUBLIC OR PRIVATE. CHAPTER THE FIRST. Of Burglary. It is laid down in the more ancient authorities that the Definition of offence of burglary may be committed by the felonious the offence. breaking and entering of a church, and the walls or gates of a town, in time of peace, as well as by the felonious breaking and entering of a private house. (a) But the (a) Staundf. P. C. 30. 22 Ass. pl. 95. Britt. c. 10. Dalt. c. 99. Crom. 31. Spelm. in verb. Burglaria, In 3 Inst. 64, Lord Coke gives as a reason for considering : 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) Dei: but Hawkins says that he does not find this nicety countenanced by the more ancient authors; and that the general tenor of the old books seems to be that burglary may be committed in breaking houses, or churches, or the walls, or gates, of a town. 1 Hawk. P. C. c. 38. s. 17. And in 4 Black. Com. 224. it is stated that breaking open a church is undoubtedly burglary. (b) 3 Inst. 63. 1 Hale 549. Sum. 79. 1 Hawk. P. C. c. 38. s. 1. 4 Black. Com. 224. 2 East. P. C. c. 15. s. 1. p. 484. 1 Burn. Just. Burglary, S. 1. The word burglar is supposed to have been introduced from Germany by the Saxons; and to be derived from the German, burg, a house, and larron, a thief; the latter word being from the Latin latro. 1 Burn. Just. Burgl. S. 1. 2 East. P. C. c. 15. s. 1. p. 484. But Sir H. Spelman thinks that the word burglaria was brought here by the Normans, as he does not find it amongst the Saxons: and he says that burglatores, or burgatores, were so called, quod dum alii per campos latrocinantur eminus, hi burgos pertinaciùs effringunt, et deprædantur. The crime, however, appears to have been noticed in our earliest laws, in the common genus of offences denominated Hamsecken; and by the ancient laws of Canutus, and of H. I. to have been punishable with death. Ll. Canuti, c. 61. Hen. I. c. 13. 1 Hale, 547. citing Spelm. Gloss. tit. Hamsecken, and ibid. tit. Burglaria. Originally, the circumstance of time, which is now of the very essence of the offence, does not seem to have been material; and the malignity of the crime was supposed to consist merely in the invasion on the right of habitation, to which the laws of England have always shewn an especial regard, herein agreeing with the sentiments of ancient Rome, as expressed in the words of Cicero: Quid enim sanctius, quid omni religione munitius, quàm domus uniuscujusque civium? Hic aræ sunt, hic foci-hoc perfugium est ita sanctum omnibus, ut inde abripi neminem fas sit. The learned editor of Bacon's Abridgment says that his researches had not enabled him to discover at what particular period time was first deemed essential to the offence; but that it must have been so settled before the reign of E. VI., as in the fourth year of that king it is expressly laid down that it shall not be adjudged burglary, nisi ou le infreinder del meason est per noctem, Pursuing the order of this definition, we may consider, I. Of the breaking and entering: II. Of the mansionhouse: III. Of the time; namely, the night: IV. Of the intent to commit a felony. and entering are both ne I. Notwithstanding some loose opinions to the contrary, A breaking which may have been formerly entertained, it is now well settled that both a breaking and entering are necessary to 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, or 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 hole in the wall; by forcing open the door; by putting back, 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 (Bro. tit. Corone, pl. 185) and that, two years before, per noctem is introduced (Id. pl. 180.) as of course in the mention of the offence. 1 Bac. Ab. Burglary, 539. (ed. 1807.) And see 3 Inst. 65. (c) 1 Hawk. P. C. c. 38. s. 3. 1 Hale 551. 4 Black. Com. 226. (d) 3 Inst. 64. 1 Hawk. P. C. c. 38. s. 4. 1 Hale 551, 552. (e) Id. Ibid. For if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein it is no burglary. 4 Black. Com. 226. cessary. Of an actual breaking. Brown's case. Breaking, where there were no interior fastenings, door is not otherwise fastened; the turning the key where 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 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. (h) A case is reported, in which the breaking was holden to be sufficient, though there was no interior fastening to the doors which were opened. It appeared that the place which the prisoner entered was a mill, under the same roof, 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 fasten ing; 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 (f) Hale 552. 3 Inst. 64. Sum. 80. 1 Hawk. P, C. c. 38. s. 6. 2 East. P. C. c. 15. s. 3. p. 487. (g) 1 Hale 552, where the learned author says that he was doubtful whether it was burglary, and so were some others; but that upon examination it appeared that in the creeping down of the prisoner, some of the bricks of the chimney were loosened, and fell down in the room, which put it out of question; and direction was given to find it burglary. (h) Crompt. 32, (b) Dalt. 253. 1 Hawk. P. C. c. 38. s. 6. 2 East, P. C. c. 15. s. 2. p. 485. |