indictment against Gibbons for burglary in the dwelling-house of John Allen. It appeared that the prisoner in the night-time cut a hole in the window shutters of the prosecutor's shop, which was part of his dwelling-house, and putting his hand through the hole, took out watches and other things which hung within his reach; but no entry was proved otherwise than by putting his hand through the hole. And the judges held that to be burglary. Gibbons's Case, 2 East P. C. 490, Foster C. L. 107.

(Eng. Old Bailey, 1785.) By Instrument to Get In. On an indictment for burglary it appeared that the prisoners had bored a hole with an instrument, called a center bit, through the panel of a house door, near to one of the bolts by which it was fastened; and that some pieces of the broken panel were found within the threshold of the door; but it not appearing that any part of the bodies of the prisoners had been within the house, or that the aperture was sufficiently large to admit a man's hand, the court held this not to be a sufficient entry, for the entry must be for the purpose of committing a felony; and the breaking must be such as will afford the burglar an opportunity of entering so as to commit the intended felony. R. v. Hughes, 1 Leach No. 178, 2 East. P. C. 491, Ke. 173.

(Eng. C. C. R., 1828.) Bar Inserted to Make Opening. Indictment for breaking and entering the dwelling of R., to steal. He was convicted and case reserved. The glass sash window was left closed down, but was thrown up by the prisoners; the inside shutters were fastened, and there was a space of about three inches between the sash and the shutters, and the shutters themselves were about an inch thick. It appeared that after the sash was thrown up a crowbar had been introduced to force the shutters, and had been, not only within the sash, but had reached to the inside of the shutters, as the mark of it was found on the inside of the shutters. The judges were of opinion that this was not burglary, and the conviction was wrong; for it did not appear whether any part of the hand was within the window, although the aperture was large enough to admit it. R. v. Rust, 1 Moody C. C. 183, Ke. 174.

(Eng. Assize, 1818.) Hand Between Window and Inner Shutter. On indictment for burglary it appeared that the window sash belonging to a dwelling-house was fastened in the usual way, by a latch from the bottom of the upper sash to the top of the lower one, and that there were inside shutters, which were fastened. One of the prisoners broke a pane of glass in the upper sash of the window, and introduced his hand within, with the intention to undo the latch by which the window was fastened. While he was cutting a hole in the shutter with a center bit, and before he had undone the latch of the window he was seized. All the judges were of opinion that the introduction of the hand between the window and the shutter,

to undo the window latch, was a sufficient entry to constitute a burglary. R. v. Bailey, Russell & R. 341.

(Ala. Sup. Ct., 1843.) Hand Passing Within Outer Window Shutter. On indictment for burglary it appeared that after Mrs. Vincent had retired for the night, a noise was heard at the window; and a lodger went out to learn the cause, and found the defendant standing in the yard and the window shutters or blind open. "The court then charged the jury that if they believed from the testimony that the defendant, by the application of force, wrested open the window shutters, and his hands protruded beyond the line made by the shutters when shut, that that, in law, was an entry, notwithstanding the sash remained down, and the glass was unbroken." The prisoner was found guilty, and sentenced to imprisonment in the penitentiary for the space of ten years. COLLIER, C. J. * Any, the least entry, is sufficient, by means of the hand or foot, or even by an instrument with which it is intended to commit a felony. 2 East P. C. 490; Foster C. L. 107; 1 Hawkins P. C. c. 38, §7; 1 Hale, P. C. 555. But the entry, it is said, must appear to have been made with the immediate intent to commit a felony, as distinguished from the previous intent to procure admission to the dwelling-house. The citations from the crown cases,

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it must be admitted, lend their support to the charge of the circuit judge to the jury. The only difference being that there was a breach and entry of the sash, while here the breach and entry was of the blinds, which were the outer protection. This, it is conceived, cannot require the application of a different principle. It cannot be that the common security of the dwelling-house is violated by breaking one of the shutters of a door or window which has several. True, it weakens the security which the mansion is supposed to afford, and renders the breach more easy; but, as additional force will be necessary before an entry can be effected, there can, under such circumstances, be no burglary committed. To constitute burglary, an entry must be made into the house with the hand, foot, or an instrument with which it is intended to commit a felony. In the present case there was nothing but a breach of the blinds, and no entry beyond the sash window. The threshold of the window had not been passed, so as to have enabled the defendant to consummate a felonious intention; and, according to the principle we have laid down, the charge to the jury was erroneous. versed. S. v. McCall, 4 Ala. 643, 39 Am. Dec. 314, F. 263, Kn. 243.

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(Ala. Sup. Ct., 1879.) Boring into Granary. Appellant was convicted of breaking and entering a corn-crib, with intent to steal, in violation of Code (1876), § 4343, declaring such acts to be burglary. BRICKELL, C. J. In the crib was a quantity of shelled corn, piled on the floor; in April or May, 1878, the crib had been broken into, and corn taken therefrom, without the consent of the

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owners, who had the crib watched; and thereafter the defendant was caught under it, and on coming out, voluntarily confessed that about three weeks before he had taken a large auger, and going under the crib, had bored a hole through the floor, from which the corn, being shelled, ran into a sack he held under it; that he then got about three pecks of corn, and with a cob closed the hole. On these facts the city court was of opinion, and so instructed the jury, that there was such a breaking and entry of the crib, as would constitute the offense, and refused instructions requested asserting the converse of the proposition. The breaking may be complete, and yet an entry never effected. From whatever cause an entry is not effected, burglary has not been committed. When one instrument is employed to break, and is without capacity to aid otherwise than by opening a way of entry, and another instrument must be used, or the instrument used in the breaking must be used in some other way or manner to consummate the criminal intent, the intrusion of the instrument is not of itself an entry. But when, as in this case, the instrument is employed not only to break, but to effect the only entry contemplated and necessary to the consummation of the criminal intent; when it is intruded within the house, breaking it, effecting an entry, enabling the person introducing it to consummate his intent, the offense is complete. The instrument was employed not only for the purpose of breaking the house, but to effect the larceny intended. When it was intruded into the crib the burglar acquired dominion over the corn intended to be stolen. Such dominion did not require any other act on his part. When the auger was withdrawn from the aperture made with it the corn ran into the sack he used in its asportation. There was a breaking and entry, enabling him to effect his criminal intent without the use of any other means, and this satisfies the requirements of the law. Judgment affirmed. Walker v. S., 63 Ala. 49, 35 Am. Rep. 1, B. 794.

Followed and conviction affirmed on facts nearly identical in S. v. Crawford. 8 N. Dak. 539 80 N. W. 193, 73 Am. St. Rep. 772, 46 L. R. A. 312, Mi. 916.

(Ala. Sup. Ct., 1893.) Entering Chimney. On trial for burglary it appeared that prosecutor was awakened at night by cries for help, and on investigation found defendant stuck in the chimney flue and unable to get in or out, that prosecutor succeeded in drawing him to the top, and that defendant then confessed that he got into the chimney with the intention of going into the house where goods were kept and stealing a suit of clothes. The court instructed the jury that if he intended to steal from the house he was guilty as charged though he did not in fact get through the chimney. HARALSON, J. In Donohoo v. S., 36 Ala. 281, we held that getting into and descending the chimney of a house, with intent to steal, is a sufficient breaking and entering to constitute burglary, although the party does not enter the room of the house below, and such was the ruling of this court in Walker v. S., 52 Ala. 376, though in the latter case the party entered into the house by going down the

chimney. Such a breaking is an actual one, as much so as the forcible breaking by any other means. 3 Greenl. Ev. § 76. On the foregoing authorities, this case must be affirmed. Olds v. S., 97 Ala. 81, 12 So. 409.

Acc. R. v. Brice, Russell & R. 450, Mi. 911.

§ 112. "Dwelling-House."

(Eng. C. C. R., 1593.) Two Homes. It was agreed by all the justices and barons of the exchequer, upon an assembly made at Serjeant's Inn, after search made for the ancient precedents, and upon good deliberation taken, that, if a man have two houses, and inhabit sometimes in one, and sometimes in the other, if that house in which he doth not then inhabit be broken in the night, to the intent to steal the goods then being in the house, that this is burglary, though no person be then in the house. And the breaking of a church in the night to steal the goods there is burglary, although no person be in it, because this is the place to keep the goods of the parish. Resolution, Popham 52, Moore 660, B. 783, Mi. 919.

(Eng. Assize, 1619.) Rented Shop in House. One had a shop in the dwelling-house of another, where he worked in the day but did not lodge, and, yet he had a house out of the shop to the street. Breaking into this shop at night was held not burglary, because no person dwelt there, and the lease severed it from the house. Anon., Hutton 33, Mi. 920.

(Eng. Old Bailey, 1689.) After Death of Owner. A died in his house. B, his executor, put servants into it, who lodged in it, and were on board wages; but B never lodged there himself; and upon an indictment for burglary, the question was, whether this might be called the mansion-house of B. The court seemed to think it might, because the servants lived there. Jones and Longman's Case, 2 East. P. C. 499.

(Eng. Old Bailey, 1697.) Away on Journey. John Nichols, being possessed of a house in Westminster, wherein he dwelt, took a journey into Cornwall, with intent to return, and sent his wife and family out of town, and left the key with a friend to look after the house; after he had been gone for a month, no person being in the house, it was broken open in the night, and robbed of divers goods. He returned a month after with his family, and resided there. The persons who had committed the robbery were adjudged burglars. Murray and Harris's Case, 2 East P. C. 496.

(Eng. C. C. R., 1768.) Room at Hotel-Whose Dwelling. This indictment for burglary stated that the prosecutor came to a public

house to stay all night, and fastened the door of his bedchamber; when the prisoner, pretending to the landlord that the prosecutor had stolen his goods, under this pretense, with the assistance of the landlord and others, forced open the chamber door with intent to steal the goods mentioned in the indictment, and the prisoner accordingly stole them. Baron Adams, who tried the prisoner, doubting whether the chamber could be deemed the dwelling-house of the prosecutor, reserved the point for the opinion of the judges, who all thought that though the prosecutor had for that night a special interest in the bedchamber, yet that it was merely for that particular purpose, namely, to sleep there that night as a traveling guest, and not as a regular lodger, and that he had no certain and permanent interest in the room itself, but that both the property and the possession of the room remained in the landlord, and therefore the indictment was insufficient, because the burglary should have been laid in the dwelling-house of the innkeeper, and not of the guest. Prosser's Case, 2 East P. C. 502.

(Eng. C. C. R., 1778.) Before Moving Into House. Smith purchased a house intending to reside in it, put it under the care of a carpenter to repair it, and moved some of his effects in, to the value of about £10, but neither he nor any of his family had yet entered into possession of any part of it. The prisoners broke and entered the house in the night, with intent to steal. The question reserved. for the opinion of the judges was whether this was Smith's dwellinghouse. The judges were all of opinion, that a house so situated could not be considered a dwelling-house, it being completely uninhabited. Judgment against the prisoners was accordingly arrested. R. v. Lyons, Leach C. C. No. 93, 2 East P. C. 497, B. 784.

(Eng. C. C. R., 1785.) There was a Shop Built Close to a Dwelling-House in which the prosecutor resided. There was no internal communication between them. No person slept in the shop. The only door to it was in the courtyard before the house and shop, which yard was inclosed by a brick wall, including them within it, with a gate in the wall serving for ingress to them. The breaking and entering was into the shop. Objection was taken that it could not be considered the dwelling-house of the prosecutor, and the case was reserved for the consideration of the twelve judges. They were all of the opinion that the shop was to be considered a part of the dwelling-house, being within the same building and the same roof, though there was only one door to the shop, that from the outside; and that the prisoners had been duly convicted of burglary in a dwelling-house. R. v. Gibbon, Mutton, and Wiggs, Leach C. C. No.

165.

Further as to dwelling house: Pitcher v. P., § 7, barn in curtilage.

(Eng. Old Bailey, 1795.) Goods Moved In.

Dinsdale rented a