or valuable consideration, office, place or employment, for himself or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any election;

2. "Every person who shall after any election, directly or indirectly, by himself or by any other person on his behalf, receive any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or to refrain from voting at any election;

"And any person so offending shall be guilty of a misdemeanor, and shall also be liable to forfeit the sum of two hundred dollars to any person who shall sue for the

full costs of suit." (Ibid. s. 2.)

same, with

Hiring Vehicles.-Hiring or promising to pay, or paying for any horse, team, carriage or other vehicle by any candidate, or by any person on his behalf, to convey voters to the poll, is illegal; and the person so ordering shall forfeit the sum of thirty dollars for each offence, and full costs of suit. Any elector hiring horses or vehicles to any candidate or his agent for such purpose, shall be ipso facto disqualified from voting at such election, and shall forfeit the sum of thirty dollars for each offence to any person who shall sue for the same. (See ibid. s. 3.)

Violence, &c.-"Every person who shall, directly or indirectly, by himself or by any other person on his behalf, make use of any force, violence or restraint, or inflict or threaten the infliction, by himself or by or through any other person, of any injury, damage, harm or loss, or in any manner practise any intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who shall by abduction, duress, or any fraudulent devise or contrivance, impel, prevent or otherwise interfere with the free exercise of the franchise of any voter, or shall thereby compel, induce or prevail upon any voter either to give or refrain from giving his vote at any election, shall be deemed to have committed the offence of undue influence, and shall be

guilty of a misdemeanor, and be liable to forfeit the sum of two hundred dollars, to any person suing, with full costs of suit.” (Ib. s. 4.)

BUGGERY.*

"Every person guilty of the abominable crime of buggery, committed either with mankind or with any animal, shall suffer death as a felon." (Con. Stat. C. c. 91, s. 22.)

BURGLARY.

Burglary is a felony at common law, and a burglar is defined by Lord Coke as "he that in the night time breaketh and entereth into the mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not."

"Any person who burglariously breaks and enters any dwelling-house, and assaults with intent to murder any person being therein, or stabs, cuts, wounds, beats or strikes any such person, shall be guilty of felony, and shall suffer death."+ (Con. Stat. C. c. 92, s. 8.)

"Any person who commits the crime of burglary shall be imprisoned in the Penitentiary for the term of his natural life,

* Penetration, however slight, is sufficient to constitute the crime (Con. Stat. C. c. 99, s. 70). It is not necessary to prove that the offence was committed against the will of the party assaulted; and if that party be consenting, both are guilty of the offence. If committed on a boy under fourteen, it is felony in the agent only; and so if a man induced a boy under fourteen to have carnal knowledge of his person, the man was convicted, as alone guilty of the offence. The offence committed on a woman is indictable. A married woman who consented to her husband's committing the offence on her, was held guilty of the offence. Proof that the prisoner is addicted to such practices, is not admissible. If the evidence be insufficient to prove sodomy, the prisoner may yet be convicted of the attempt.

The evidence on a charge under this section of the statute will be the same as that required for simple burglary, for which see following notes; and in addition the prosecutor must prove either that the prisoner assaulted some person, then being in the house, with intent to murder, which intent may be inferred from the circumstances, or that the prisoner stabbed, cut, wounded or beat or struck

some person.

THE MAGISTRATE'S MANUAL.

or for any term not less than two years, or be imprisoned in. any other prison or place of confinement for any term less than two years."* (Ib. s. 9.)

* On a trial for burglary, the prosecutor must prove-1. The breaking; 2. The entering; 3. That the house entered was a dwelling-house; 4. That the breaking and entry were in the night time; 5. That the breaking and entry were with the intent to commit a felony.

1. Actual breaking.-Such a breaking as is implied by law in every unlawful entry on another's possession, open or closed, will not satisfy the words feloniously and burglariously, except in cases where it is accompanied by circumstances which make it as heinous as an actual breaking. Entering through an open door or window is not burglary; but if, after such entry, an inside or chamber door be unlocked or unlatched, it is burglary. Breaking a window, unfastening a pane of glass, drawing a latch, when there is no other fastening, putting back the lock a door or fastening of a window with an instrument, turning the key where the door is locked inside, or picking a lock, or unloosing any fastening the owner has provided: these are all proofs of a burglary. Where the prisoner, having entered by an open back-door, broke open a chamber-door, and stole goods out of the chamber, and then unbolted the street-door and went out, he was convicted of burglary. So where the servants and master slept in different parts of the house, the stair-foot door of the master's chamber being latched, and a servant unlatched it, and entered the master's room to murder him, he was convicted of burglary with intent to murder. Raising a window which is sufficiently open to allow of its being raised further, is no breaking; but inserting the hand through a broken pane to unfasten a hasp or lock is a breaking. An entry through a chimney is burglary, for it is as much enclosed as possible: not so, however, an entry through a hole in the roof for letting in air. Breaking fixtures, cupboards, chests, &c., is not burglary. Breaking through or overleaping a gate or fence is not burglariously breaking or entry.

Constructive breaking may be by fraud, conspiracy or threats, though the owner himself admit the offender, and renders the offender equally guilty as if the breaking had been by force. So, where persons took lodgings in a house, and then fell on the landlord and robbed him, they were convicted of burglary. And where A., servant of B., conspired with C. to admit him to rob B., it was held to And again, where the offenders actually obtained an be burglary in both. entrance by threats, it was held to be burglary; but only robbery where the owner threw his purse out of the window to the prisoners, in consequence of their threats. So parties who assisted in the breaking were held guilty of the burglary, though not anywhere in the neighbourhood at the time that the robbery was committed. The breaking may be either in the entry or exit.

2. Proof of entry.-Where no part of the offender's body enters, but he introduces an instrument, whether that introduction constitutes burglarious entry, depends on the object for which it was effected, If with intent to commit a felony, it will amount to an entry; as where a person uses a hook or other instrument to steal, or a pistol to kill, through a window, though his hand be not in. But where the instrument was introduced only to effect an entry, as a centre-bit, it was held to be no entry; and the same where the inside shutter had been forced open with a crowbar introduced through the window, the sash of which the prisoners threw open, but without the hand being introduced. Discharging the contents of a loaded gun or pistol into a house, though no part of the weapon be introduced, is a burglarious entry with intent to murder. It is not always necessary to prove entry by all the prisoners.

For instance, if A. and B. keep watch, while C. breaks into the house, all are guilty of burglary, and all are principals. Again, where a man puts a child of

"The night, so far as the same is essential to the offence of burglary, shall commence at nine of the clock in the evening of each day, and conclude at six of the clock in the morning of the next succeeding day; and if any person enters the dwelling of another with intent to commit felony, or being in

tender years in at a window, and the child takes and delivers goods to him, the man alone is guilty of burglary.

3. What constitutes a dwelling-house.-Every house for the dwelling and habitation of man is taken to be a dwelling-house wherein burglary may be committed. A mere tent or booth in a market or fair is not a dwelling-house. But where such booth was a permanent one of mud and brick, having doors and windows bolted inside, and occupied by the owner and his wife every night during the fair (during one of which it was broken into), this was held to be a dwellinghouse. The mere fact of a building in the neighbourhood of a dwelling-house being occupied with the dwelling-house by the same tenant (not taking into consideration whether it is in the curtilage), will not render the former building a dwelling-house. The prisoner broke into and entered an outhouse occupied by a person along with a dwelling-house, but not enclosed within the same fence, he was not held guilty of burglary. Where a man puts his servants into an outhouse, not connected with the house by any internal communication, nor enclosed within the same enclosure, nor under the same roof, it was held not to be a dwelling-house. It must appear also that the premises were occupied, at the time of the offence, as a dwelling-house. Therefore, an unfinished house, which has never been occupied, though intended for a dwelling-house, is not considered to be one within the statute; and in one case, though such house was occupied by a carpenter for its protection, but the owner had not yet entered it, it was not held to be a dwelling-house. So a detached workshop or place of business is not considered as a dwelling-house, though occupied by a servant for the protection of goods therein contained. So, though the owner occupy a room adjoining the shop during the day time, but do not sleep therein, it is not a dwelling-house. But a house is no less a dwelling-house, because at certain periods the occupier quits it, or quits it for a temporary purpose. In the case of a house divided without internal communication, and occupied by several, unless both parts of such house be occupied as a dwelling-house (as above defined), it is not burglary to break into the unoccupied part; but if the whole be occupied by the same person, though part of it be occupied only in the day-time, it is burglary to break into either part. Although in the case of lodgers, who hold under one general occupier, the whole of the house continues to be the dwelling-house of such general occupier, the parties having only a single entrance, it is otherwise where several parts of the building are let under different leases. Where a man occupies the same house with his lodgers, and has but one entrance with them, the house is considered as his. But where he and his lodgers enter by different entrances, the lodgers are considered as the owners of the part they inhabit. It is sufficient to prove that the house was occupied by any part of the prosecutor's family. An agent or clerk employed in a public office, or by persons in trade, is in law the servant of those parties, and if he be suffered to reside on the premises which belong to the government or to the individuals employing him, the premises cannot be described as his dwelling-house. If a person let off part of his house, but do not dwell in the part reserved, the part let is the dwelling-house of the tenant, but the part reserved is not the dwelling-house of the tenant. man cannot be indicted for burglary in his own dwelling. Therefore if the owner of a house break and enter the room of a lodger, and steal his goods, he can only be convicted of the larceny.

A

4. With regard to proof of the offence having been committed in the night time, it is necessary to prove that both breaking and entry were effected within the

such dwelling house, commits any felony, and in either case breaks out of the said dwelling house in the night time, such person shall be guilty of burglary."* (Ib. s. 10.)

"Any person who steals any chattel, money or valuable security in any dwelling house, and by any menace or threat puts any one, being therein, in bodily fear, shall be guilty of felony, and shall be imprisoned in the Penitentiary for any term not exceeding fourteen years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Ib. s. 11.)

"No building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed a part of such dwelling-house for the purpose of burglary, or for any of the purposes aforesaid, unless there be a communication between such building and dwelling-house, either immediate, or by means of a covered and inclosed passage leading from the one to the other." (Ib. s. 12.)

"In case any person breaks and enters any building, and steals therein any chattel, money or valuable security, such building being within the curtilage of a dwelling-house and occupied therewith, but not being part thereof, according to the provision hereinbefore mentioned, and be convicted thereof (either upon an indictment for the same offence, or upon an indictment for burglary, house breaking or stealing to the value of five pounds sterling, or $24 33 cents, in a dwellinghouse, containing a separate count for each such offence), he

hours specified. Therefore, if the prisoner had provided the means for his entry before the hour of nine (as, for example, by leaving a window open, &c.), the entry alone after that hour would not constitute burglary.

5. With regard to proof of the intent, it would be fatal to specify a felony of one kind (as murder, for instance), and only be able to prove one of another (as larceny).

Lastly, if the prosecutor fail to prove burglary, the prisoner may be convicted of the minor offence, as of larceny.

With regard to proof of the breaking out, the following cases have been decided: It is not sufficient to prove that the prisoner broke to get out, but it must appear that he actually broke out. And where a lodger in the prosecutor's house got up in the night and unbolted the back door, and went off with goods belonging to the prosecutor, he was convicted of burglary; and none the less 80, though he was lawfully in the house as a lodger.