Fourth count. form of the statute, &c. and against the peace, &c. And the jurors, &c. do further present, that the said D. D. being such ill designing and disorderly person, and of such wicked and malicious mind as aforesaid, after the said, &c. aforesaid, to wit, on the said, &c. with force and arms, at, &c. aforesaid, one other mare of the value of twenty pounds of the cattle, goods, chattels and property of the said W. A. there then being, feloniously, unlawfully, wilfully and maliciously then and there did kill and destroy, that is to say, by poison, to the great damage of him the said W. A. against the form of the statute, &c. and against the peace, &c. 517 CHAPTER XVI. INDICTMENTS FOR OFFENCES TO HABITA- BURGLARY. (e) PRELIMINANY NOTES. [*1090] fence, The word burglary is a compound of the Saxon terms The of burgh a house, and laron theft; and originally signified no more than the robbery of a dwelling. But it is now defined to be the breaking and entering the house of another in the night time with intent to commit a felony, whether the felony be actually committed or not. Jac. Dic. Burglary, 3 Inst. 63. The circumstances essential to be considered, are—in what place it must be done-at what time-by what meansand with what intention; and these points we will separately consider. Place in which bur. glary may I. In what place burglary may be committed. It must, in general, be committed in a mansion house; though the ancient books speak of it also in relation to the walls of a town, be comand it has always been holden, that it may take place in a mitted. church or chapel. The latter is placed by Lord Coke, on the ground that a consecrated place is the mansion house of God, 3. Inst. 64. but this idea is opposed by Hawkins, and seems to rest on very unsubstantial foundations, Hawk. b. 1. (e) As to this offence in general, see 3 Inst. 63 to 66. 1 Hale 547 to 565. Hawk. b. 1. c. 38. Com. Dig. Justices P. 2. &c. Bac. Abr. Burgla ry. 2 East, P. C. 481 to 523. 4 Bla- [*1091] c. 38. s. 17. The principal question is, however, at the present day, what is to be deemed a dwelling house. And, from all the cases it appears, that it must be a place of actual residence. Thus a house under repair, in which no one lives, though the owner's property is deposited there, is not a place in which burglary can be committed; for it cannot be deemed his dwelling house, until he has taken possession with intent to inhabit it, 1 Leach, 185. Nor will it make any difference if one of the workmen engaged in the repairs, sleep there, in order to protect it, 1 Leach, 186, notis. Nor, though the house is ready for the reception of the owner, and he has sent his property into it preparatory to his own removal, will it become for this purpose, his mansion, 2 Leach, 771. So, if the landlord of a house purchase the furniture of his out going tenant, and procure a servant to sleep there, in order to guard it, but without any intention of making it his own residence, a breaking into the house will not amount to burglary, 2 Leach, 876. But if the agent of a public company reside at a warehouse belonging to his employers, this crime may be committed by breaking it, and he may be laid as the owner, 2 Leach, 931. And it seems that if a man die in his house, and his executors put servants in it, and keep them there at board wages, burglary may be committed in breaking it, and it may be laid to be the execu tors' property, 2 East P. C. 499. It seems quite settled that the proprietor of the house need not be actually within it at the time the offence is committed, provided it is one of his regular places of abode. For if he leaves it animo revertendi, though no person resides in his absence, it will still be his mansion. As if a man has a house in town, and another in the country, aud goes to the latter in the summer, the nocturnal breaking into either with a felonious design, will be burglarious, Fost. 77. But if the occupier of a house removes from it with his whole family, and takes away so much of his goods as to leave nothing fit for the accommodation of inmates, and has no settled idea of returning to it, but rather intends to let it, the offence will be merely larceny, Fost. 76. And the mere casual use of a tenement will not suffice; and, therefore, the circumstance of a servant sleeping in a barn, or porter in a warehouse, for particular and temporary purposes, will not so operate as to make a violent entry in the night, in order to steal, a burglary, 1 Hale, 557, 8. "Every house for the dwelling and habitation of man," observes lord Coke, " is taken to be a mansion house, wherein burglary may be committed," 3 Inst. 64. So even a loft, over a stable used for the abode of a coachman, which he rents for his own use and that of his family, is a place which may be burglariously broken,* 1 Leach, 305. So also bur- [*1092] glary may be committed in a lodging room, 1 Leach, 89. or in a garret used for a workshop, and rented together with an apartment for sleeping, and if the landlord does not sleep under the same roof, the place may be made as the mansion of the lodger, 1 Leach, 237. So to this purpose chambers in a college or inn of court, where each individual has a distinct property, are considered as separate mansions, though under the same roof, and having a common entrance, 1 Hale, 556. This offence may also take place by breaking open a shop built close to a dwelling house, although no one sleeps in it, and it has no internal communication with the principal mansion, 1 Leach, 357. But where a centre building is allotted to a variety of trades, and there are two wings annexed to it, both of which are used as dwelling houses, and occupied by different persons, the case will be otherwise, and it will be holden not a dwelling house for the purpose; being evidently a distinct tenement, and occupied jointly, while the adjoining houses are the respective abodes of individuals, 2 Leach, 913. With respect to out houses, it is generally laid down by the older writers, that barns, stables, cow houses, are included in the term domus mansionalis, if they are parcel of the messuage, though neither contiguous to it, nor under the same roof, 3 Inst. 64. 1 Hale, 558. And accordingly it was holden that burglary might take place in respect of a building eight or nine yards distant from a dwelling house, and with only a paling between them, 1 Hale, 558. But it was even then laid down, that if the out house was at considerable distance, as if it stood a bow shot from it, so as not to be reasonably esteemed parcel of the principal dwelling, nor within the curtilage, it will not answer to this description, 1 Hale, 144. And in more recent times, it has been decided that an out house several feet from the mansion, and unconnected by any common inclosure is not a place in which burglary can be committed, 1 Leach, 144. Neither is it an offence of this degree to break open a tent or booth erected in a market or fair, though a person should choose to lodge in so slight a tenement, for the law regards thus highly, none but permanent and substantial habitations, 3 Inst. 64. 2dly. At what time the offence must be committed. It is essential to the offence that it should be committed in the night, and the only question is what time will be so considered for this purpose. Anciently the day was accounted to begin from sun-rising, and to end at sun-setting; but it is now agreed that if there be sufficient remains of daylight left to discern the features of a man's face, no breaking can be burglarious, 3 Inst. 63. 1 Hale, 550. 2 Leach, 718. This however, does not extend to moon-light; for, as ob [*1093] served by Mr. Justice Blackstone, "the malignity of the offence does not so properly arise from its being done in the dark, as in the dead of night, when all the creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and rendered his castle defenceless," 4 Bla. Com. 224. Both the breaking and entry must be nocturnal; for if the breaking were in the night and the entry in the day or vice versa, the offence would not amount to burglary, 1 Hale, 551. but if the breaking is on one night, and the entry on another, they together amount to burglary, and it may be supposed that both took place when the entry was effected, 1 Hale, 551. 3dly. What acts are necessary to constitute burglary. There must must be both a breaking and an entry; for the older as well as modern writers universally agree, that both are requisite, 1 Hale, 551. 3 Inst. 64.: we have, therefore, to enquire, what in law is deemed a breaking, and what an entry. The breaking must be actual, and not arising from a mere legal construction, 1 Hale, 551.; so that an entry by an open door or window is not burglarious, though it would make the party a trespasser, if unaccompanied by a felonious design, 3 Inst. 64. The force, however, does not imply a demolition of any part of the walls, or even manual violence; for if the thief descends through a chimney, which cannot be further inclosed, this will amount to burglary, 1 Hale, 552. 4 Bla. Com. 226. And if by threats the offender compels a person to open his door, or induces him to do so to repel the violence attempted on his premises, it will amount to a burglarious breaking, 1 Hale, 553. So if admittance is obtained by fraud, as if thieves with a pretended hue and cry require a constable to go with them to search a man's house, or alledge there are traitors there, after entering bind the constable and the owner, and rob the house, this is burglary, 1 Hale, 552, 3. 2 Leach, 1064. notes. So where the defendant met a servant belonging to a house who kept the key, and by false pretences enticed him to let her in, on which she robbed the premises, the judges came to a similar decision, 2 East, P. C. 485. And it seems to be now settled, that if a servant within a house conspires with another person to let him in, in order to rob his master, both parties are guilty of burglary, 2 Stra. 881. 4 Bla. Com. 227. It is immaterial by what kind of violence the breaking is effected. The opening a casement, breaking a window, picking the lock of the door with a false key, putting back the lock of the door, bolt, or fastening, unlatching a door which is only latched, bending aside nails, or otherwise unloosing fastenings, are all means to a burglarious entry, 1 Hale, 552. |