dwelling-house in Cheapside, put in some of his merchandise and articles of trade, and hired two men to sleep in the house to take care of the goods. They were hair-dressers and not his servants in any capacity. He had never slept in the house, but these men had slept there for six nights before defendant broke in and stole a watch worth £10, the property of Dinsdale. The court was of opinion that Dinsdale, the prosecutor, had not taken sufficient possession to make the house his dwelling, and that Harris was guilty of larceny only. He was sentenced and transported. R. v. Harris, 2 Leach C. C. No. 273, 2 East P. C. 498, Ke. 163, Mi. 921.

(Mo. Sup. Ct., 1864.) Closed for the Season. Defendant appeals from a conviction of burglary and larceny and from an order denying a motion for a new trial. On the trial Hutchmeyer testified for the state that he owned a dwelling-house in Osage county, and in the spring of 1862 moved out of it and went about four miles off to live with a brother, leaving a part of his furniture in the house, which he left locked up. On his return three or four months later, he found that the house had been broken open and some things stolen. No one stayed in the house during this period. The indictment was for statutory burglary in the second degree, which required that the place should be a dwelling-house. Defendant argues that during the absence of the owner this was not a dwelling-house. The court held that this was burglary of a dwelling-house, citing 3 Coke Inst. 64; 1 Hale P. C. 556; 2 East P. C. 496; and affirmed the judgment. The court said: "In this country it has been held, that if A have a residence in the city and one in the country, residing with his family. during the summer in one, and in the winter in the other, the breach of either, during the absence of A and his family (though no one may be sleeping in it), for the purpose of committing a felony, is burglary. It is equally well settled, that if the owner locks up his house and leaves it, with a settled purpose not to return, it ceases to be his dwelling-house, in the sense necessary to make an unlawful breaking a burglary. To continue it his mansion-house, he must have quitted it animo revertendi. In the case at bar, we think it apparent that the owner of the premises had no intention to remain away permanently." S. v. Meerchouse, 34 Mo. 344, 86 Am. Dec. 109, F. 265, Kn. 247.

(N. Y. Ct. of App., 1863.) Flats and Apartments-Inner Door. Christopher Thomas and wife occupied three rooms in what is known as a tenement house, for which they paid rent monthly. Three other families lived in other apartments in the same house. All the tenants used the same entrance from the street, which was provided with a door at the street. From the common hall each reached his apartments. The street door to the common hall being open defendant entered and broke the door of Mrs. Thomas's room, which she had left locked. Defendant's counsel requested the court to

charge the jury that breaking the outer door would be breaking the house of the tenant whose goods he intended to steal, but that breaking the inner door was not burglary, because a double burglary could not be committed by first breaking the outer and then the inner door. The request was refused, and the defendant convicted of burglary in the third degree under the statute. He appealed to the supreme court, where the judgment was affirmed, and he again. appealed. Affirmed. The court said: "Any and every settled habitation of a man and his family is his house or his mansion, in respect to its burglarious entry. It was so held before Lord Hale's time as to the chambers in colleges and inns of court, and even as to a chamber hired by A in the house of B for lodging for a specified time. 1 Hale P. C. 556. Wherever a building is severed by lease into distinct habitations, each becomes the mansion or dwelling-house of the lessee thereof, and is entitled to all the privileges of an individual dwelling." Mason v. P., 26 N. Y. 200, B. 788.

*

*

(N. Y. Ct. of App., 1878.) Stores Under Flats. Defendant was convicted of burglary in the first degree under the statute, which is the same as burglary at common law. It appears that he broke into a store-room used for purposes of trade by a partnership, and that one of the partners and other persons lived in rooms over the store, not connected with it by any internal communication, but within the same four walls and reached by a stairway on the outside of the building. It was claimed by the accused that this was not burglary because there was no internal communication. The court reviews a number of decisions, English and American, and holds that the breaking constituted burglary. The court said: "The dwelling-house in which burglary might be committed was held formerly to include outhouses-such as warehouses, barns, stables, cow-houses, dairy-houses-though not under the same roof or joining contiguous to the house, provided they were a parcel thereof. 1 Russ. on Cr. * 799, and authorities cited. Any outhouse within the curtilage, or same common fence with the dwelling-house itself, was considered to be a parcel of it." Quinn v. P., 71 N. Y. 561, 27 Am. Rep. 87, B. 789, Mi. 922.

** * *

(Wis. Sup. Ct., 1887.) Unfinished House. Appellant was convicted of burglary under a statute making it burglary to break "and enter in the night-time any office, shop, or any other building not adjoining any dwelling-house, with intent to commit the crime of larceny or other felony." Wis. R. S. § 4409. The building broken into was a dwelling-house in process of construction, on a stone foundation, walls up, roof on, windows boarded up, temporary floors laid, a room in the basement partitioned off, and a door at the entrance of it hung and locked. The defendant appears to have torn off the boards from a window, gone into the basement, broken open the room there, and stolen some carpenter tools from that room and

from a chest on the floor above. Counsel for appellant contended that a building in process of construction, as this was, is not within the meaning of the statute above quoted, because it was unfinished and unfit for occupation for the purpose for which it was intended. The court held that this was a building within the meaning of the statute, saying: "We think the provision was intended to include any building not within the curtilage, in which property might be stored, or men or animals sheltered. Judgment affirmed. Clark v. S., 69 Wis. 203, 33 N. W. 436, 2 Am. St. Rep. 732.

(N. Y. Ct. of App., 1888.) Burial Vault. Defendant was indicted and convicted of burglary in the third degree under a statute declaring such burglary to consist of "breaking and entering in the day or in the night-time2. Any shop, store, booth, tent, warehouse, or other building in which any goods, merchandise, or valuable thing shall be kept for use, sale, or deposit with intent to steal therein, or to commit any felony." 2 R. S. 669, § 17. The proof showed that he broke into a granite vault used for burial of the dead. It was entirely above ground, 10 ft. wide, 16 ft. long, 10 ft. high, with granite roof, and a granite and bronze door and gate at the entrance. Within were 12 burial compartments, seven of them occupied by dead bodies and sealed with marble slabs. The evidence tended to show that defendant's purpose in entering was to examine one of the bodies. Defendant's counsel asked the court to instruct the jury that this case was not within the statute, the vault not a building, and the charge not proved. The motion was denied and the defendant convicted. Refusal of this request is held error. "We do not believe that the structure described in the indictment and the proof is within the statute describing burglary in the third or any degree. We think it plain that all the words in the revised statutes or in the statute of 1863, in defining burglary in the third degree, referred to structures erected or built for the purpose of answering the necessities of living men in their intercourse with each other of a commercial or trading nature, where their property might be deposited and used, or while awaiting sale or transportation." Per PECKHAM, J. Reversed. P. v. Richards, 108 N. Y. 137, 15 N. E. 371, 2 Am. St. Rep. 373, C. 474.

**

(Tex. Ct. of Crim. App., 1898.) A Header Box. Appellant was convicted of burglary. It appears that he stole grain from a header box, such as is commonly used with header grain harvesters. The box was 16 ft. long, 6 ft. wide, 4 ft. deep at one end, and 18 inches deep at the other, and covered with a wagon-sheet securely fastened down. It was made of boards securely joined together, was drawn around the field with the harvester, and would hold about 150 to 200 bushels of thrashed grain. The court said: "Was this a 'house' within the contemplation of the statute of burglary? We are of opinion that it was not. It is true that it had four sides, and was

covered over, but it was nevertheless a box and not a house. All boxes which contain goods-shoes, groceries, etc.-for shipment would be houses if this box were held to be one. The evidence excludes the idea of permanency of location. It was port

able and was not used, nor intended to be used, in any way or for any purpose connected with a habitation, or other purposes for which houses are ordinarily used." Reversed. Williamson v. S., 39 Tex. Crim. R. 60, 44 S. W. 1107, 73 Am. St. Rep. 901.

(Tex. Ct. of Crim. App., 1898.) Ranch Tent. Appellant was convicted of burglary. A witness described the place as follows: "I put two forked mesquite poles, about seven feet high, into the ground, and then put a pole from one to the other, and then stretched a wagon-sheet over the pole, and brought the ends down to the ground, and nailed them to planks on each side, which planks were nailed to stakes driven in the ground. Then I boxed up the east end of this tent with boards, and, the evening I left, I picked up an old door and set it sideways in front of the west opening, leaving it up against the end pole. But as this did not fill up the west end entirely, I also put some boxes at one end of this old door, and then tied the wagon-sheet together about this old door. I did this to prevent a hog from getting in and to prevent anything from entering. I knew there was a hog in that neighborhood, and I fixed my place to prevent it getting in. When I came back from Pearsall to my place, on Monday, after I left on Saturday, I found that the door had been moved aside sufficient to allow one to pass into this house; and I missed a pair of blankets, a quilt, and a vest. * I afterwards saw the blankets in the possession of the sheriff." This structure was in the exclusive possession of the witness, Ryman; he resided in it, but did not own the ground. It was contended that this was not a "house" within the meaning of the following statute: "Any building or structure, erected for public or private use, whether the property of the United States, of this state, or of any public or private corporation, or association, or of any individual, of whatever material it may be constructed." Pen. Code Tex. (1895) Art. 843. The court distinguished Williamson v. S., above, and held this to be a house, saying: "Such a structure as this is as much under the protection of the burglary statute as would be a structure entirely made of wood, brick, or granite. The law does not mention the character of the structure or the material of which it shall be made. It protects the humble tenant in his tent as well as his more fortunate neighbor in his palace." Judgment affirmed. Favro v. S., 39 Tex. Crim. R. 452, 46 S. W. 932, 73 Am. St. Rep. 950.

(Ga. Sup. Ct.. 1898.) Poultry Coop. Defendant was charged with larceny from a house, under the statute providing that, "any person who shall, in any dwelling-house, store, shop, warehouse, or any other building, privately steal any money or other thing." (Pen.

Cod. § 179) shall be punished, etc. Defendant pleaded not guilty, and at the close of the evidence moved to be discharged, on the ground that the place was a chicken coop, and not a house. The motion was denied, and the judgment against defendant was affirmed on appeal. The court said: "The structure from which the pigeons were taken, as shown by the evidence in the case, was about eight feet high, stationary, inclosed with wire, and covered with shingles. The fact that it was inclosed with wire instead of other material, in our judgment, makes no difference." Williams v. S., 105 Ga. 814, 32 S. E. 129, 70 Am. St. Rep. 82.

§ 113. "Of Another.''

See also the cases on this point under arson, § 120.

(Eng. C. C. R., 1617.) Servant Opening Inner Door. On indictment for burglary the jury found specially at the Winchester assizes, 15 Jac., that Edmonds was a servant and apprentice of Heydon, and slept in the house; and at night Edmonds opened the door to the foot of the stairs by lifting the latch, went upstairs, and entered the chamber where Heydon and wife were in bed, with intent to murder Heydon, and then struck him 15 wounds with a hatchet, etc. This verdict being shown to the judges of Serjeant's Inn in Chancery Lane, and later at a meeting in Serjeant's Inn in Fleet St., they all agreed that it was burglary. Edmonds's Case, Hutton 20, Mi. 917.

(Eng. Old Bailey, 1722.) By Servant. A servant in the house opened his lady's chamber door (which was fastened with a brass bolt) with design to commit a rape; and King, C. J., ruled it to be burglary, and the defendant was convicted and transported. R. v. Gray, 1 Strange 481, B. 784.

(Eng. King's Bench, 1731.) Collusion with Servant. Cornwal and another were indicted for burglary; and on the trial it appeared that Cornwal was a servant in the house, and in the night-time opened the street-door, and let in the other prisoner, and showed him the sideboard, from which the other took plate; whereupon Cornwal opened the door again and let him out, yet did not go out with him, but went to bed. It was doubted whether it was burglary in the servant, he not going out with the other; and afterwards at a meeting of all the judges at Serjeant's Inn, they were all of opinion that it was burglary in both. And upon report of this opinion the next session, the defendant was executed. Joshua Cornwal's Case, 2 Strange 881.

(S. Car. Sup. Ct., 1902.) By Servant. Appellant was convicted of burglary on evidence tending to show that at night after the