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[absolutely necessary that it should, in all cases, be a mansion-house ; for it may also be committed by breaking the gates or walls of a town in the night; though that perhaps Sir Edward Coke would have called, the mansion-house of the garrison or corporation. Spelman defines burglary to be "nocturna diruptio alicujus habitaculi, vel ecclesiæ, etiam murorum portarumve civitatis aut burgi, ad feloniam aliquam perpetrandam” (o). And therefore we may safely conclude that the requisite of its being domus mansionalis, is only in the burglary of a private house, which is the most frequent; and in which it is indispensably necessary, to form its guilt, that it must be in a mansion or dwelling-house ; for no distant barn, warehouse, or the like, are under the same privileges, nor looked upon as a man's castle or defence: nor is a breaking open of houses wherein no man resides, and which therefore for the time being are not mansion-houses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath only left for a short season, animo revertendi, is the object of burglary, though no one be in it at the time of the fact committed (p).] And it was formerly the rule (9), that if the barn, stable, or warehouse, were parcel of the mansion-house, and within the same common fence (though not under the same roof, or contiguous,) a burglary might be committed therein ; for the capital house protected and privileged all its branches and appurtenances, if within the curtilage or homestall. But it is now provided, that no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be a part of such dwellinghouse for the purpose of burglary, unless there shall be a communication between such building and dwellinghouse ; either immediate, or by means of a covered and
(0) Spelm. Gloss. tit. glary;" Hawk. P. C. b. 1, c. 38, 8. 10.
(p) i Hale, P. C.556; Fost. 77.
(7) R. v. Garland, 1 Leach, C. L. 171.
inclosed passage leading from one to the other (r). [A chamber in a college or an inn of court, where each inhabitant hath a distinct property, is to all other purposes as well as this, the mansion-house of the owner(s). So also is a room or lodging in any private house the mansion for the time being of the lodger, if the owner doth not himself dwell in the house, or if he and his lodger enter by different outward doors (t); but if the owner himself lies in the house, and hath but one outward door at which he and his lodgers enter, such lodgers seem only to be inmates; and all their apartments to be parcel of the one dwelling-house of the owner(u). Thus, too, the house of a corporation, inhabited in separate apartments by the officers of the body corporate, is the mansion-house of the corporation, and not of the respective officers (2). But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie there, it is no dwellinghouse, nor can burglary be committed therein; for by the lease it is severed from the rest of the house, and therefore it is not the dwelling-house of him who occupies the other part; neither can I be said to dwell therein, when I never lie there (y). Neither can burglary be committed in a tent or booth erected in a market or fair, though the owner may lodge therein (z); for the law regards thus highly nothing but permanent edifices—a house or church, the wall or gate of a town: and though it may be the choice of the owner to lodge in so fragile a tenement, yet his lodging there no more makes it burglary to break it open,
than it would be to uncover a tilted waggon under the same circumstances.
As to the manner of committing burglary, there must (r) 24 & 25 Vict. c. 96, s. 53; C. C. 89; R. v. Trapshaw, ibid. 427. re-enacting 7 & 8 Geo. 4, c. 29, s. 13, (u) Kel. 81; Hale, ubi sup. which is repealed by 24 & 25 Vict. (x) Fost. 38, 39; 2 East, P. C.
c. 15, s. 14. (s) 1 Ilale, P. C. 556; IIawk. (y) i Hale, P. C. 558. P. C. b. 1, c. 38, s. 13.
(-) Hawk. P. C. b. 1, c. 38, s. 17. (t) See R. v. Rogers, 1 Leach,
[be both a breaking and an entry to complete it: but they need not be both done at once (a); for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars (6). There must in general be an actual breaking,-not a mere legal clausum fregit, by leaping over invisible, ideal boundaries, which may constitute a civil trespass, but a substantial and forcible irruption,-as at least by breaking, or taking out the glass of, or otherwise opening, a window; picking a lock, or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner hath provided. But 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; yet if he afterwards unlocks an inner or chamber door, it is so (c). But to come down a chimney is held a burglarious entry, for that is so much closed as the nature of things will admit. So also to knock at a door, and upon opening it to rush in with a felonious intent; or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance in order to search for traitors, and then to bind the constable and rob the house : all these entries have been adjudged burglarious, though there was no actual breaking: for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process (d). And so if a servant opens and enters his master's chamber door, with a felonious design; or if any other person lodging in the same house, or in a public inn, opens and enters another's door with such evil intent; it is burglary. Nay, if the servant conspires with a robber, and lets him into the house by night, this is burglary in both (e); for the servant is doing an unlawful act, and the opportunity
(a) R. v. Bird, 9 Car. & P. 44; R. r. Smith, R. & R. C. C. 417.
(b) 1 Hale, P. C. 551. (0) Ibid. 553.
(d) Hawk. P. C. b. 1, c. 38, s. 5
(c) Cornwall's case, Stra. 881 1 Hale, P. C. 553.
[afforded him of doing it with greater ease, rather aggravates than extenuates the guilt. As for the entry, any the least degree of it with any part of the body, or with an instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or hook in at the window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries (f).] The entry may be before the breaking as well as after ; for though there were once different opinions upon the question as to whether the breaking out of a house to escape, by a man who had previously entered by an open door with intent to steal, was burglary, Lord Bacon (9) holding the affirmative and Sir Matthew Hale (h) the negative, it is now enacted that whosoever shall enter the dwelling-house of another with intent to commit any felony therein, or being in such dwelling-house shall commit any felony therein, and shall in either case break out of the said dwellinghouse in the night, shall be deemed guilty of burglary (i). But it is universally agreed that there must be both a breaking, either in fact or by implication, and also an entry,-in order to complete the burglary (j).
As to the intent. It is clear that, except where the commission of a felony in the dwelling-house is connected with the crime in a different manner, as in the instance above given, such breaking and entry must be with a felonious intent, otherwise it is only a trespass (k). [And it is the same whether such intention be actually carried
(f) i Hale, P. C. 555; Hawk. P. C. b. 1, c. 38, s. 7; Fost. 108. As to what entries are burglarious, see the following cases : R... Bailey, R. & R. C. C. 341; R. v. Russell, 1 M. C. C. R. 377; R. v. Davis, R. & R. C. C. 355; R. v. Brice, ib. 450; R. v. Haines, ib. 451. And as to what are not, see R. r. Lawrence, 4 Car. & P. 231 ; R. v. Smith, R. & M. C. C. R. 178; R. v. Rast, ib. 183; R. v. Roberts, Car.
C. L. 293.
(9) Bac. Elem. 65; and see 2 East, P. C. c. 15, s. 6.
(h) 1 Hale, P. C. 554.
(i) 24 & 25 Vict. c. 96, s. 51. A similar enactment was formerly contained in 12 Ann. c. 7 (repealed by 7 & 8 Geo. 4, c. 27), and afterwards in 7 & 8 Geo. 4, c. 29 (repealed by 24 & 25 Vict. c. 95).
(j) 4 Bl. Com. 227.
[into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, a murder, a rape, or any other felony, is burglary whether the thing be actually perpetrated or not. Nor does it make any difference, whether the offence were felony at common law or only created so by statute, --since that statute which makes an offence felony, gives it incidentally all the properties of a felony at common law.
Thus much for the nature of burglary; which was a felony at common law, but within the benefit of clergy (?). The statutes, however, of i Edw. VI. c. 12, and 18 Eliz. c. 7, took away clergy from the principals; and that of 3 & 4 Will. & M. c. 9, from all abettors and accessories before the fact.] And though these provisions were repealed some time since (m), yet by a statute in force up to a recent period, viz., by 7 Will. IV. & 1 Vict. c. 86, burglariously to break and enter into any dwelling-house, and to assault with intent to murder any person being therein; or to stab, cut, wound, beat, or strike any such person; was a felony, punishable with death. But this Act also is now repealed (n); and under 24 & 25 Vict. c. 96, s. 52, whosoever shall be convicted of the crime of burglary, shall be liable to penal servitude for life, or any term not less than five years (0); or to be imprisoned for any term not more than two years; and, in the case of imprisonment, hard labour and solitary confinement may be superadded.
In connection with the crime of burglary it may be mentioned, that whosoever shall in any way enter a dwellinghouse in the night, with intent to commit a felony, shall
(1) Blackstone remarks, (vol. iv. visions as to the punishment of p. 227,) that by the laws of Athens, burglary, were also made by 7 & 8 which punished no simple theft with Geo. 4, c. 29; but these were redeath, burglary was a capital crime, pealed by 7 Will. 4 & 1 Vict. c. 86. and cites Pott. Antiq. b. i. c. 26. (n) By 24 & 25 Vict. c. 95.
(m) By 7 & 8 Geo. 4, c. 27. Pro- (0) See 27 & 28 Vict. c. 47.