Evidence in burglary.] Upon the trial of an indictment for the offence of burglary, the prosecutor must prove, 1, the breaking; 2, the entering; 3, that the house broken and entered was a mansion-house; 4, that the breaking and entry were in the night-time; 5, that the breaking and entering were with intent to commit a felony. The offence of breaking out of a mansion-house in the night-time will be treated of separately. 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 open 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 steal goods, &c., 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 day-time, 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.(1) Proof of breaking-general instances.] Proof of breaking a window, taking a pane of glass out by breaking or bending the nails or other fastenings, the drawing 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 [*341] 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; 1 Russ. by Grea. 786.(2) 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. 1 Hale, P. C. 553.(3) So where the 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 streetdoor on the inside and went out; this was held by the judges to be burglary. Johnson's case, 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. Haydon's case, Hutt. 20; Kel. 67; 1 Hale, P. C. 544; 2 East, P. C. 488. Whether the pushing open the flap or flaps of a trap-door, or door in a floor, (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 Caskeny, 582. (2) So, removing a stick of wood from an inner cellar-door, and turning a button. Smith's case, 4 Rogers's Rec. 63. (3) State v. Wilson, 1 Coxe, 439. which closes by its own weight, is 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. Brown's case, 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. Callan's case, Russ. & Ry. 157.b It has been observed, that the only difference between this and Brown's case (supra,) seems to be, that in the latter there were no internal fastenings, which in Callan's case there were; but that in neither case were any in fact used, but that the compression or fastening, such as it was, was produced by the mere operation of natural weight in both cases. Russ. & Ry. 129, (n). The authority of Brown's case has been since followed, and that decision may now be considered to be law. 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 [ *342 ] *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. Russell's case, 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, post, p. 369. Proof of the breaking-windows.] Where a window is open, and the offender enters the house, this is no breaking, as already stated, ante, p. 340. 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 parlour-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. Smith's case, 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 1 Eng. C. C. 157. Eng. C. L. Reps. xix. 360. • Id. 158. 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 a chimney, an aperture necessarily left in the original construction of the house), from enlarging an aperture by lifting up further the sash of the window, as in Smith's case, supra; but the learned judges thought it was worth considering whether in both cases the facts did not constitute, in point of law, a sufficient breaking. Upon a case reserved, all the judges who met were of opinion that there was a sufficient breaking, not by breaking the residue of the pane, but by unfastening and opening the window. Robinson's case, 1 Moody, C. B. 327. See R. v. Bird, 9 C. & R. 44.h Where a house was entered through a window upon hinges, which was fastened by two nails which acted as wedges, but notwithstanding these nails the window would open by pushing, and the prisoner pushed it open, the judges held that the forcing the window in this manner was a sufficient breaking to constitute burglary. Hall's case, Russ. & Ry. 355. So pulling down the upper sash of a window which has no fastening, but which is kept in its place by the pulley-weight only, is a breaking, although there is an outer shutter which is not fastened. Haine's case, Russ. & Ry. 451. So raising a window which is shut down close, but not fastened, though it has a hasp which might be fastened. Per Park and Coleridge, J. J., R. v. Hyam, 7 C. & P. 441.(1)* Where a cellar-window, which was boarded up, had in it an aperture of considerable size to admit light into the cellar, and through this aperture [ *343] one of the prisoners thrust his head, and by the assistance of the others thus entered the house, Vaughan, B., ruled that this resembled the case of a man having a hole in the wall of his house large enough for a man to enter, and that it was not burglary. Lewis's case, 2 C. & P. 628.1 See also Sprigg's case, infra. A shutter-box partly projected from a house, and adjoined the side of the shopwindow, which side was protected by wooden panelling lined with iron; held that the breaking and entering of the shutter-box did not constitute burglary. Paine's case, 7 C. & P. 135.TM Proof of the breaking-chimnies.] It was one time considered doubtful whether getting into the chimney of a house in the night-time, with intent to commit a felony was a sufficient breaking to constitute burglary. 1 Hale, P. C. 552. But it is now settled that this is a breaking: for though actually open, it is as much inclosed as the nature of the place will allow. Hawk. P. C. b. 1, c. 38, s. 6; 2 East, P. C. 485. And accordingly it was so held, in a late case, by ten of the judges, (contrary to the opinion of Holroyd, J., and Burrough, J.) Their lordships were of opinion that the chimney was part of the dwelling-house, that the getting in at the top was a breaking of the dwelling-house, and that the prisoner, by lowering himself in the chimney, made an entry into the dwelling-house.(2) R. v. Brice, Russ. & Ry. 450." (1) 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 house through the window were a sufficient entry and breaking to constitute burglary. Commonwealth v. Stephenson, 8 Pick. 354. But an entry through a hole in the roof, left for the purpose of admitting light, is not a sufficient entry to constitute burglary; for a chimney is a necessary opening and requires protection, whereas if a man chooses to leave a hole in the wall or roof of his house, instead of a fastened window, he must take the consequences. Sprigg's case, 1 Moo. & R. 357. Proof of the breaking-fixtures, cupboards, &c.] The breaking open of a movable chest or box in a dwelling-house, in the night time, is not such a breaking as will make the offence burglary, for the chest or box is no part of the mansion-house. (1) Foster, 108; 2 East, P. C. 488. Whether breaking open the door of a cupboard let into the wall of a house, be burglary or not, does not appear ever to have been solemnly decided. In 1690, a case in which the point arose, was reserved for the opinion of the judges, and they were equally divided upon it. Foster, 108. Lord Hale says that such a breaking will not make a burglary at common law. 1 Hale, P. C. 527. Though on the authority of Simpson's case, Kel. 31; 2 Hale, P. C. 358, he considers it a sufficient breaking within the stat. 39 Eliz. c. 15. In the opinion of Mr. Justice Foster, however, Simpson's case does not warrant the latter position. Foster, 108; 2 East, P. C. 489. And see 2 Hale, P. C. 358,(n.) Mr. Justice Foster concludes that such fixtures as merely supply the place of chests and other ordinary utensils of household, should for the purpose be considered in no other light than as mere movables. Foster, 109; 2 East, P. C. 489. Proof of the breaking-walls.] Whether breaking a wall, part of the curtilage, is a sufficient breaking to constitute burglary, has not beep decided. Lord Hale, after citing 22 Assiz. 95, which defines burglary to be "to break houses, churches, [*344] walls, courts, or gates, in *time of peace," says "by that book it should seem that if a man hath a wall about his house for its safeguard, and a thief in the night breaks the wall or the gate thereof, and finding the doors of the gate open enters into the house, this is burglary; but otherwise it had been, if he had come over the wall of the court, and found the door of the house open, then it had been no burglary." 1 Hale, P. C. 559. Upon this passage an annotator of the Pleas of the Crown observes, "This was anciently understood only of the walls or gates of the city (vide Spelman, in verbo Burglaria.) If so, it will not support our author's conclusion, wherein he applies it to the wall of a private house." Id. (n.) ed. 1778. It has been likewise observed upon this passage, that the distinction between breaking, and coming over the wall or gate, is very refined, for if it 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 if it be not part of the mansion-house for this purpose, then whether it be broken or not is equally immaterial; in neither case will it amount to burglary. 2 East, P. C. 488. In these observations another writer of eminence concurs. 1 Russ. by Grea. 789. Proof of the breaking-gates.] Where a gate forms part of the outer fence of a dwelling-house only, and does not open into the house, or into some building parcel of the house, the breaking of it will not constitute burglary. Thus, where large gates opened into a yard in which was situated the dwelling-house and (1) State v. Wilson, 1 Coxe, 439. warehouse of the prosecutors, the warehouse extending over the gateway, so that when the gates were shut the premises were completely inclosed, the judges were unanimous that the outward fence of the curtilage, not opening into any of the buildings, was no part of the dwelling-house. Bennett's case, Russ. & Ry. 289. So where the prisoner opened the area gate of a house in London with a skeleton-key, and entered the house by a door in the area, which did not appear to have been shut, the judges were all of opinion that breaking the area gate was not a breaking of the dwelling-house, as there was no free passage in time of sleep from the area into the dwelling-house. Davis's case, Russ. & Ry. 322.P Proof of breaking-constructive breaking-fraud.] In order to constitute such a breaking as will render the party subject to the penalties of burglary, it is not essential that force should be employed. There may be a constructive breaking by fraud, conspiracy, or threats which will render the person who is party to it equally guilty as if he had been guilty of breaking with force. Where, by means of fraud, an entrance is effected into a dwelling-house in the night-time, with a felonious intent, it is burglary. Thieves came with a pretended hue and cry, and requiring the constable to go with them to search for felons, entered the house, bound the constable and occupier, and robbed the latter. So where thieves entered a house, pretending that the owner had committed treason, in both these cases, though the owner himself opened the door to the thieves, it was held burglary. 1 Hale, P. C. 552, 553. The prisoner knowing the family to be in the country, and meeting the boy who kept the key of the house, desired him to go with her to the house, promising him a pot of ale. The boy accordingly *let her in, when she sent him for the ale, robbed the house and went [ *345 ] off. This being in the night-time, was held by Holt, C. J., Tracy, and Bury, to be burglary. Hawkins's case, 2 East, P. C. 485. By the same reasoning, 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 goods therein, 2 East, P. C. 485. So where persons designing to rob a house, took lodgings in it, and then fell on the landlord and robbed him. Kel. 52, 53; Hawk. P. C. b. 1, c. 38, s. 9. Proof of the breaking-constructive breaking-conspiracy.] A breaking may be effected by conspiring with persons within the house, by whose means those who are without effect an entrance. Thus if A., the servant of B., conspire with C. to let him in to rob B., and accordingly A. in the night-time opens the door and lets him in, this according to Dalton (cap. 99) is burglary in C. and larceny in A. But according to Lord Hale, it is burglary in both; for if it be burglary in C. it must necessarily be so in A., since he is present and assisting C. in the committing of the burglary. 1 Hale, P. C. 553. John Cornwall was indicted with another person for burglary, and it appeared that he was a servant in the house, and in the night-time opened the street-door and let in the other prisoner, who robbed the house, after which Cornwall opened the door and let the other out, but did not go out with him. It was doubted on the trial whether this was a burglary in the servant, he not going out with the other; but afterwards, at a meeting of all the judges, they were unanimously of opinion that it was a burglary in both, and Cornwall was executed. Cornwall's case, 2 Str. 881; 4 Bl. Com. 227; 2 East, P. C. 486. But if a servant, pretending to agree with a robber, 1 Eng. C. C. 289. P Id. 322. |