*2]

*Pursuing the order of this definition, we may consider, I. Of the breaking and entering: II. Of the mansion-house: III. Of the time-namely, the night: IV. Of the intent to commit a felony.

I. Notwithstanding some loose opinions to the contrary, 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, felonice 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.1

Where, therefore, a cellar window, which was boarded up, had in it a round aperture of considerable size, to admit light into the cellar, and through this aperture one of the prisoners thrust his head, and, by the assistance of the other prisoner, he thus entered the house, but the prisoners did not enlarge the aperture at all; it was held that this was not a sufficient breaking.(f) So where a hole had been left in the roof of a brew-house, part of a dwelling-house, for the purpose of light, and it was contended that an entry through this hole was like an entry by a chimney: it was held that this was not a sufficient breaking. Bosanquet, J., "The entry by the chimney stands upon a very different footing; it is a necessary opening in every house, which needs protection; but if a man choose to leave an opening in the wall or roof of his house, instead of a fastened window, he must take the consequences. The entry through such an opening is not a breaking."(g)

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 *3] false key; by breaking the window; by taking a pane of glass out of the window, either by taking out the nails or other fastenings, or by drawing or bending them back, or by putting back the leaf of a window with an instrument. the drawing or lifting up the latch, (h) where the 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.(i)

And even

Where a pane of glass had been cut for a month, but there was no opening whatever, as every portion of the glass remained exactly in its place, and the pridown that it shall not be adjudged burglary, nisi ou le infreinder del meason est per noctem (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. tit. Burglary, 539 (ed. 1807). And see 3 Inst. 65.

(c) 1 Hawk. P. C. c. 38, s. 3; 1 Hale 551; 4 Blac. Com. 226.

(d) 3 Inst. 64; 1 Hawk. P. C. c. 38, s. 4; 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 Blac. Com. 226.

(f) Rex v. Lewis, 2 C. & P. 628 (12 E. C. L. R.), Vaughan, B.

(9) Rex v. Spriggs, 1 M. & Rob. 357.

(h) Owen's case, 1 Lewin 35, per Bayley, J., whether it be an outer or inner door, and see Rex v. Lawrence, 4 C. & P. 231 (19 E. C. L. R.), and Rex v. Jordan, 7 C. & P. 432 (32 E. C. L. R.).

(i) 1 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.

1 Cutting and tearing down a netting of twine which is nailed to the top, bottom, and sides of a glass window, so as to cover it, and entering the house through such window, though it was not shut, constitutes a sufficient breach and entry: Comm. v. Stephenson,

8 Pick. 354.

To constitute burglary there must be a breaking, removing, or putting aside of something material, which constitutes a part of the dwelling-house, and is relied on as a security against intrusion. If a door or window be shut, however, it is sufficient, though it be not bolted or fastened: State v. Boon, 13 Ired. 244. See also Fisher v. State, 43 Ala. 17; State v. Wilson, Cox 439; Finch's case, 14 Gratt. 643; State v. Reed, 20 Iowa 413.

soner was both seen and heard to put his hand through the glass, this was held a sufficient breaking.(j)

So where a window opening upon hinges, is fastened by a wedge, so that pushing against it will open it, if such window be forced open by pushing against it, there will be a sufficient breaking. The prisoner got into the prosecutor's cellar, by lifting up a heavy grating, and into his house by forcing open a window which opened on hinges, and was fastened by two nails, which acted as wedges, but would open by pushing upon a case reserved, the judges held the forcing open the window to be a sufficient breaking (k) So pulling down the sash of a window is a breaking, though it has no fastening, and is only kept in its place by the pulley weight and it makes no difference that there is an outer shutter which is not closed. The prisoner entered a house by pushing down the upper sash of a window, which had no fastening, and was kept in its place by the pulley weight only. There was an outer shutter, but it was not put to A case was reserved upon the question, whether the pushing down the sash was a breaking, and all the judges were unanimous that it was.(1)

So raising a window, which is shut down close, but not fastened, is a breaking, although there be a hasp, which could have been fastened to keep the window down.(m)

But if a window be partly open, but not sufficiently so as to admit a person, the raising it higher, so as to admit a person, is not a breaking. The prisoner was seen very near a window, which in the morning had been shut quite down, but when the prisoner was seen was raised about a couple of inches, and he immediately afterwards threw the sash quite up, and entered: and upon a case reserved the judges were unanimous that this was not a breaking.(n) But where a square of glass in a kitchen window, through which the prisoners entered, had been previously broken by accident, and half of it was out at the time when the prosecutor left the house, and the aperture was sufficient to admit a hand, but not to enable a person to put his arm in, so as to undo the fastening of the casement, and one of the prisoners thrust his arm through the aperture, thereby breaking out the residue of the square, and having so done, he removed the fastening of the casement; Alderson, B., and *Patteson, J., entertaining a doubt, from the difficulty they had to distinguish satisfactorily the case of enlarging a hole already existing, from the enlarging an aperture, by lifting up further the sash of a window, in the preceding case, submitted the case to the judges, who were unanimously of opinion that this was a sufficient breaking, not by breaking the residue of the pane, but by unfastening and opening the window (0) and it has since been laid down as clear law that a person, who, on finding a hole in a door or pane of glass, puts his hand in through the hole to remove the fastening of the door or window, and so gains admittance into the premises, is gailty of a breaking into the house.(p)

[*4

It was once doubted 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;(q) but it was afterwards 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.(r)1

(3) Reg. v. Bird, 9 C. & P. 44 (38 E. C. L. R.), Bosanquet, J.

(k) Rex v. Hall, R. & R. 355.

(1) Rex v. Haines, R. & R. 451.

(m) Rex v. Hyams, 7 C. & P. 441 (32 E. C. L. R.), Park, J. A. J., and Coleridge, J. (n) Rex v. Smith, R. & M. C. C. R. 178.

(9) Rex v. Robinson, R. & M. C. C. R. 327.

(p) Ryan v. Shilcock, 7 Exc. 72, per Curiam.

(9) 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. (r) Crompt. 32 (¿); Dalt. 253; 1 Hawk. P. C. c. 38, s. 6; 2 East P. C. c. 15, s. 2, p. 485.

1 State v. Willis, 7 Jones (Law) 190; Vonaken v. State, 36 Ala. 281.

Getting into the chimney of a house is a sufficient breaking and entering to constitute burglary, though the party does not enter any of the rooms of the house. The prisoner got in at the top of a chimney, and got down to just above the mantlepiece of a room on the ground floor. A case was reserved upon the question, whether this was a breaking and entering of the dwelling-house; and two of the judges thought it was not, because the party could not be considered as being in the dwelling-house, not having got below the chimney-piece; but the ten other judges held otherwise, on the ground 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 lowering himself by the party was an entry within the dwelling-house. (8)

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. The place which the prisoner entered was a mill, under the same roof, and within the same curtilage, as the dwelling-house: through the mill there was an open entrance, or gateway, capable of admitting wagons, 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 this aperture was closed by folding doors with hinges, which fell over it, and remained closed by their own weight, but without any interior fastening; so that persons on the outside, under the gateway, could push them open at pleasure, by a moderate exertion of strength. The prisoner entered the mill in the night, by so pushing open the folding doors, with the intention of stealing flour; and Buller, J., held this to be a sufficient breaking.(t)

*But doubts were entertained whether ltfting up the trap-door or flap of a *5] cellar, which was kept down solely by its own weight, was a sufficient breaking; such trap-door or flap being used for the purpose only of taking in liquors to the cellar, and not as a common entrance for persons. The prisoner was indicted for stealing some bottles of wine in a dwelling-house, and afterwards burglariously breaking out of the house. The wine was taken from a bin, in the cellar of the house, which was a public-house, and removed by the prisoner from the bin to the trap-door, or flap of the cellar, in getting out of which he was apprehended. The cellar was closed on the outside, next the street, only by the flap, which had bolts belonging to it, for the purpose of bolting it on the inside, and was of considerable size, being made to cover the opening through which the liquors consumed in the public-house were usually let down into the cellar. The flap was not bolted on the night in question; but it was proved to have been down; in which situation it would remain, unless raised by considerable force. When the prisoner was first discovered, his head and shoulders were out of the flap; and upon an attempt being made to lay hold of him, he made a spring, got quite out, and ran away, when the flap fell down, and closed in its way, by its own weight. Upon this evidence the question was reserved, whether there was a sufficient breaking to constitute the crime of burglary; and the twelve judges were divided in opinion as to this being a sufficient breaking.(u)

But it has since been held, that lifting up the flap of a cellar, which was kept down by its own weight, is a sufficient breaking, although such flap may have been occasionally fastened by nails, and was not so fastened at the time the entry was made. The prisoner entered into a cellar, by raising up a flap-door, which let down, and had from time to time been fastened with nails, when the cellar was not wanted to keep coals in: and the jury found upon the evidence that it was not nailed down on the night the prisoner entered; it was held, on a case reserved, that there was a sufficient breaking.(v)

The book, 22 Assiz. 95, in which burglary is defined as the breaking of houses, churches, walls, courts, or gates, in time of peace, is referred to by Lord Hale, as seeming to lead to the conclusion, that where a man has a wall about his house for

(s) Rex v. Brice, R. & R. 450.

(t) Brown's case, 2 East P. C. c. 15, s. 3, p. 487.

(u) Callan's case, cor. Lord Ellenborough, C. J.; MS., Bayley, J., and R. & R. 157. This case approaches very closely to Brown's case, ante, p. 4.

(v) Rex v. Russell, R. & M. C. C. R. 377. This case seems to overrule Rex v. Lawrence, infra, p. 8.

its safeguard, if a thief should in the night-time break such wall, or the gate thereof, and finding the doors of the house open, should enter the house, it would be burglary; though it would be otherwise if the thief should get over the wall of the court, and so enter through the open doors of the house.(w) But upon this it has been remarked, that the doctrine referred to by Lord Hale was anciently understood only as relating to the walls or gates of a city; and did not, therefore, support his conclusion, when he applied it to the wall of a private house. (x) And the distinction between breaking and coming in over the gate or wall is spoken *of by [*6 an able writer, as being over-refined; for if, as he observes, the gate or wall 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 that if it be not part of the mansion-house for this purpose, then whether it be broken or not is equally immaterial, as in neither case will it amount to burglary.(y)

A door, wall, or other fence, forming part of the outward fence of the curtilage and opening into no building, but into the yard only, was held not to be such a part of the dwelling-house as that the breaking thereof would constitute burglary; and it was held to make no difference that the door broken was the entrance to a covered gateway, and that some of the buildings belonging to the dwelling-house and within the curtilage, were over the gateway, and that there was a hole in the ceiling of the gateway, for taking up goods into the building above. The prosecutor had a dwelling-house, warehouses, and other buildings, and a yard; the entrance into the yard was through a pair of gates, which opened into a covered way; over this way were some of the warehouses, and there was a loop-hole and crane over the gates, to admit of goods being craned up; and there was also a trap-door in the roof of the covered way; there was free communication from the warehouses to the dwelling-house: the prisoners broke open the gates in the night, with intent to steal, and entered the yard, but did not enter any of the buildings; and upon a case reserved, 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.(z) So an area gate, opening into the area only, is not such part of the dwelling-house, that the breaking of the gate will be burglary, if there be any door or fastening to prevent persons in the area from entering the house, although such door or other fastening may not be secured at the time. The prisoners opened an area gate in a street in London, and entered the house through a door in the area, which happened to be open, but which was always fastened when the family went to bed, and was one of the ordinary barriers against thieves. Having stolen in the house to the value only of 39s., a question was made, whether the breaking the area gate was breaking the dwelling house so as to constitute burglary; and as there was no free passage in time of sleep from the area into the house, the judges held unanimously that the breaking was not a breaking of the dwelling-house. (a)

Where the prisoner broke open a box, used as a shutter-box, which partly projected from the wall of the house, and adjoined one side of the window of the shop, which side of the window was protected by wooden panelling, lined with plates of iron; it was held that the shutter-box was no part of the dwelling-house.(b) *The breaking requisite to constitute a burglary is not confined to the external [*7 parts of the house, but may be of an inner door, after the offender has entered by means of a part of the house which he has found open. Thus, if A. enters the house of B. in the night-time, the outward door being open, or by an open window, and, when within the house, turn the key of a chamber door, or unlatch it, with (w) 1 Hale 559.

(z) Note (n), 1 Hale 559, ed. 1800.

(y) 2 East P. C. c. 15, s. 3, p. 488.

(2) Rex v. Bennett, MS, Bayley, J., and R. & R. 289.

(a) Rex v. Davis, MS., Bayley, J., R. & R. 322.

(b) Rex v. Paine, 7 C. & P. 135 (32 E. C. L. R.), Lord Denman, C. J., Park, J. A. J., Bolland, B., Sir J. Cross. The whole facts in the report are inserted. It is not stated whether the box had any communication with the inside of the house, or whether the breaking was such as to make an opening into the inside of the house. C. S. G.

intent to steal, this will be burglary.(c) So where the prisoners went into the house of the cook at Sergeant's Inn, in Fleet-street, to eat, and taking their opportunity, slipped up stairs, picked open the lock of a chamber door, broke open a chest, and stole plate, it was agreed that the picking open the lock of a chamber door ousted them of their clergy, though the breaking open the chest would not have done so.(d) And it will also amount to burglary if a servant in the night-time open the chamber door of his master or mistress, whether latched or otherwise fastened, and enter for the purpose of committing murder or rape, or with any other felonious design; or if any other person, lodging in the same house, or in a public inn, open and enter another's door, with such evil intent.(e) 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. (ƒ)

It is clear that the breaking open of a chest, or box, by a thief who has entered by means of an open door or window, is not a kind of breaking which will constitute burglary, because such articles are no part of the house. (g) But the 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 divided upon the question.(h) But Lord Hale says, that such breaking is not burglary at common law.(i) And Foster, J., thinks that with regard to cupboards, presses, lockers, and other fixtures of the like kind, a distinction should be taken, in favor 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 *8] 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 households, should be considered in no other light than as mere movables, partaking of the nature of those utensils, and adapted to the same use."(j)

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 :(k) and it was thought expedient to remove the doubt by legislative enactment. This was done by the 12 Anne, stat. 1, c. 7, s. 3, and the 7 & 8 Geo. 4, c. 29, s. 11, now repealed, and the 24 & 25 Vict. c. 96, s. 51, declares, (c) 1 Hale 553; 1 Hawk. P. C. c. 38, s. 6; Johnson's case, 2 East P. C. c. 15, s. 4, p. 288. (d) Anon., 1 Hale 524.

MS., Denton, cited Bac. Abr. tit. Burservant burst open

(e) 1 Hale 553, 554; 4 Blac. Com. 227; Binglose's case, 2 W. & M.; 2 East P. C. c. 15, s. 4, p. 488; Gray's case, 1 Str. 481; Sum. 82, 84; glary (A.); Reg. v. Wenmouth, 8 Cox C. C. 348. Keating, J., where a the door of a shop in the night in order to steal money from the till. (f) 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 inn-keeper, and that a guest may commit larceny of the things delivered to his charge: 2 East P. C. c. 15, s. 4, p. 488, and see Reg. v. Wheeldon, post, note (m).

(g) 1 Hale 523, 524, 555; 1 East P. C. c. 15, s. 5, p. 488, 489.

(h) Fost. 108, citing MS., Denton.

(i) 1 Hale 527.

(j) Fost 109. And see 2 East P. C. c. 15, s. 5, p. 489.

(k) By Lord Holt and Trevor, C. J., in Clarke's case, 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 nighttime by the doors 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 fregit et exivit, non fregit et intravit.” Lord Bacon thought it was burglary: Elem. 65.