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 in the same circumstances (9). (9) The new statute does not contain the word mansion, which was formerly held to comprehend out-houses, if parcel of the dwelling-house; the consequence of which, and of the new provisions in §§ 13 & 14, is, that no building, except a dwelling-house, or a building immediately connected therewith, can now be the subject of burglary, either at common law, or under the new statute. Where the owner has never by himself, or by any of his family, slept in the house, it is not his dwelling-house, so as to be the subject of burglary; Rex v. Martin, R. & R. C. C. 108. And see Lyon's case, Leach, 169; Thompson's case, id. 893. Where a servant has part of a house for his own occupation, and the rest is reserved by the proprietor for other purposes, the part reserved cannot be deemed part of the servant's dwelling-house; and it will be the same if any other person has part of the house, and the rest is reserved; Rex v. Wilson, R. & R. C. C. 115. Where a servant stipulates upon hire for the use of certain rooms in his master's premises for himself and family, the premises may be described as the master's dwelling-house, although the servant is the only person who inhabits them; for he shall be considered as living there as servant, not as holding as tenant; Rex v. Stock, id. 185. Where a shop was rented with some of the apartments of a house, it was held that the shop was still part of the dwelling-house, and that burglary might be committed in it, as the house of the landlord. Gibson's case, Leach, 287. Where it must be laid in the indictment to be the dwelling-house of the landlord, if he break open the apartments of his lodgers, and steal their goods, it is not burglary, for a man cannot be guilty of burglary in his own house; Kel. 84. A father let a shop, passage, and cellar, part of his house, to his son. The son did not sleep there, and there was a distinct entrance into his part; but his passage led to the father's cellars, and they were open to the father's part of the house. The shop was broken into. The judges thought that by reason of the internal communication, the son's part continued part of the father's house, and held a conviction for the burglary of the father's house right; Rex v. Sifton, R. & R. C. C. 202. If a house is let to A., and a warehouse under the same roof, and with an internal communication to the house, to A. and B.; the warehouse, in an indictment for burglary, cannot be described as the dwelling-house of A.; Rex v. Jenkins, id. 244. A building separated from the dwelling-house by a public road, however narrow, is not parcel of the dwelling-house; but if it is made a sleeping place for any of the servants of the dwelling-house, it may be deemed a distinct dwelling-house, for the purposes of burglary; Rer v. Westwood, id. 495. If the owner of a cottage permits one of his workmen with his family to live there free of rent and taxes, and he lives there, principally, if not wholly, for his own benefit, it may be described as the workman's dwelling-house; Rex v. Jobling, id. 525; and see Rex v. Margetts, 2 Leach, 930. Where a warehouseman, with his family, lived in a house of his master's, for which, and there must be a breaking and an entry; 3. As to the manner of committing burglary: there must be both a breaking and an entry to complete it. But they need not be both done at once: for, if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars (ƒ). 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 has provided. But if a person (f) 1 Hal. P. C. 551. for coals, he paid his master a rent of 11. a year, the master taking 91. a year less than he could have got from an ordinary tenant, in consideration of the security thus afforded to the premises, it was held that the warehouseman occupied as tenant and not as servant, and that an indictment for burglary, laying the house to be the dwelling-house of the master, was bad; Rex v. Jarvis, R. & M. C. C. 7; and see Rex v. Camfield, S. P. id. 42. If a burglary be committed in the house of a married woman living apart from her husband, it must be described as the dwelling-house of the husband; Rex v. Farre, Kel. 43; Rex v. French, R. & R. C. C. 491; Rer v. Wilford, id. 517. If a burglary be committed in the lodgings or chambers of servants of a corporation, the house must be described as the dwelling-house of the corporation; Rex v. Picket, 2 East, P. C. 501; Rex v. Maynard, id. ibid. With respect to the new provisions contained in §§ 13 & 14 of the new statute, it would seem that any building which before the passing of this statute would have been the subject of burglary, by reason of its being within the curtilage, may now be the subject of an indictment under § 14. For such cases, and for others appearing to illustrate the new enactments; see Rex v. Hancock, R. & R. C. C. 170; Rer v. Bennett, id. 289; Rex v. Davis, id. 322; Rex v. Chalking, id. 334; Rev v. Lithgo, id. 357; Rex v. Clayburn, id. 360; Rex v. Walters, R. & M. C. C. 13; 2 East, P. C. 492. The main question in such cases will be, what shall be considered as being within the curtilage, which, in the Termes de la Ley, is defined to be, a garden, yard, field, or piece of void ground, lying near, and belonging to, the messuage. Such garden, &c. must be connected with the messuage by one uninterrupted fence or enclosure of some kind, and perhaps such fence may more properly be termed the curtilage, than the ground lying within it. An indictment under the new section must aver that the building was within the curtilage of the prosecutor's dwelling-house, and that it was occupied therewith by the prosecutor: but it would seem that it need not aver that the building was one in which burglary could not be committed; see Rex v. Robinson, R. & R. C. C. 321. The other clauses of this statute, namely, § 10, as to sacrilege, or burglary and stealing in a church or chapel; § 12, as to house-breaking, and stealing in a house; and § 15, as to robbery in a shop; will be more properly the subjects of consideration and exposition in the succeeding chapter, 17, to which the reader is referred. 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 (g). But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit (h). 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 [*227] trifled with by such evasions, especially under the cloak of legal process (i). 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 (k): for the servant is doing an unlawful act, and the opportunity 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 a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries (). The entry may be before the breaking, as well as after for by statute 12 Ann. c. 7, if a person enters into the dwelling-house of another, without breaking in, either by day or by night, with intent to commit felony, or, being in such house, shall commit any felony; and shall in the night break out of the same, this is declared to be burglary; there having before been different opinions concerning it Lord Bacon (m) holding the affirmative, and Sir Matthew Hale (n) the negative. But it is universally agreed, that there must be both a breaking, either in fact or (g) 1 Hal. P. C. 553. (h) 1 Hawk. P. C. 102; 1 Hal. P. C. 552. (i) 1 Hawk. P. C. 102. (k) Stra. 881; 1 Hal. P. C. 553; 1 Hawk. P. C. 103. (1) 1 Hal. P. C. 555; 1 Hawk, P. C. 103; Fost. 103. (m) Elem. 65. (n) 1 Hal. P. C. 554. by implication, and also an entry, in order to complete the burglary (10). (10) The 12 Anne, c. 7, together with the other statutes relating to the same subject, was repealed by the 7 & 8 Geo. IV. c. 27; but the observations in the text continue equally applicable under the new law. As to what is a sufficient breaking: Where a window opens upon hinges, and is fastened by a wedge, so that pushing against it will open it; forcing it open, by pushing against it, is sufficient to constitute a breaking: Rex v. Hall, R. & R. C. C. 355. 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; it is equally a breaking though there is an outer shutter which is not put to; Rex v. Haines, id. 451. Lifting the door flap of a mill, not otherwise fastened than by its own weight, is a breaking; Brown's case, 2 Russell, 902. The prisoner broke the glass of the prosecutor's side door on the Friday night, with intent to enter at a future time, and actually entered on the Sunday night. The judges held this burglary, the breaking and entering being both by night, and the breaking being with intent afterwards to enter; Rex v. Smith, R. & R. C. C. 417. 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; Rex v. Brice, id. 450, 2 C. & P. 417. On the trial of a prisoner at Cambridge Sir M. Hale was doubtful whether this was burglary, and so were some others; but upon examination it appeared that, in the prisoner's creeping down, some of the bricks of the chimney were loosened, and fell into the room, which, says Sir M., put it out of question, and direction was given to find it burglary; 1 Hal. 551. This refined distinction has called forth an excellent comment from the able author of "Principles of Penal Law," who observes, "it would not be easy for any man, whose understanding hath not the advantage of a professional education, to conceive, how the nature of the crime should be varied by so trivial an accident. Such deviations of sound sense into sophistry, are too often the consequences of legal reasoning." Breaking a window; taking out a piece of glass, by drawing or bending the nails, or other fastenings; drawing a latch, where a door is not otherwise fastened; picking a lock with a false key; putting back the lock of a door, or fastening of a window, with an instrument; turning the key where the door is locked on the inside; or unloosening any other fastening which the owner has provided, are all instances of a breaking; 2 East, P. C. 487. If a thief enter by an outer door or window which is open, yet if he turn the key of, or unlatch, a chamber door, this is a breaking; Rex v. Johnson, id. 488. A servant in the house may by opening a chamber door make a breaking for the purpose of burglary; Id. ibid.; see also Kel. 67; Rer v. Gray, 1 Stra. 481. But the breaking may be constructive also; as gaining admission under pretence of business; 2 Hawk. P. C. c. 17, § 8, or by colour of law, as under a fraudulent distress, &c.; 1 Russell, 9; taking lodgings with a felonious intent and robbing the landlord; 2 East, P. C. 485; bribing a servant to shew a mansion and then robbing it, id. ibid; and opening a door to a burglar and allowing him to pillage the house and to escape; id. 486. But there must be some breaking, actual, or constructive. If a man leave his door or window open, and a thief enter and take away the goods, this is no burglary, id. 485. If a cellar window have an aperture to admit light and air, and a thief enters by going through it in the night, this is no be felonious, but ried into execu 4. As to the intent; it is clear, that such breaking and the intent must entry must be with a felonious intent, otherwise it is only a need not be cartrespass. And it is the same, whether such intention be ac- tion: tually carried 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 (o) (11). (0) 1 Hawk. P. C. 105. [*228] burglary; Rer v. Lewis, 2 C. & P. 628. And where the prisoner broke out of a cellar by lifting up a heavy flap by which the cellar was closed on the outside next the street, the flap not being bolted, though it had bolts, six of the judges were of opinion that there was a sufficient breaking to constitute burglary, and six were of a contrary opinion; Rex v. Callan, R. & R. C. C. 157. If A enter into the house of B. by night, and break open a chest and take away goods, without breaking open an inner door, this is no burglary, because the chest is no part of the house; 2 East, P. C. 488; 1 Hale, P. C. 555. Quære; whether this would apply to the doors of cupboards, presses, closets, or counters. As to what is a sufficient entry: Introducing the hand between the glass of an outer window and inner shutter, is sufficient entry to constitute burglary; Rex v. Bailey, R. & R. C. C. 341. Where in breaking a window in order to steal property from the house, the prisoner's finger went within the house; it was held that there was a sufficient entry; Rex v. Davis, id. 499. And it may be taken generally that there is a sufficient entry to constitute burglary, if the thief breaks the house, and intro duces his body or any part thereof, as (11) If the indictment states, or the |