colour of title, and then rifling the house, was ruled to be within the statute against breaking the house, and stealing the goods therein. (1) So if a man go to a house under pretence of having a search warrant, or of being authorised to make a distress, and by these means obtain admittance, it is, if done in the night-time, a sufficient breaking and entering, to constitute burglary, or, if done in the day-time, house-breaking. (m) If admission to a house be gained by fraud, not carried on under the cloak of legal process, as by a pretence of business, it will also amount to a breaking by the construction of law. Accordingly it was adjudged, that where thieves came to a house in the nighttime, with intent to commit a robbery, and knocked at the door, pretending to have business with the owner, and, being by such means let in, robbed him, they were guilty of burglary. (n) And so where some persons took lodgings in a house, and afterwards, at night, while the people were at prayers, robbed them: it was considered, that the entrance into the house being gained by fraud, with an intent to rob, the offence was burglary. (o) For the law will not endure to have its justice defrauded by such evasions. (p) A case is also reported, where the entrance to the house was gained by deluding a boy who had the care of it. It appeared upon the evidence, that the prisoner was acquainted with the house, and knew that the family were in the country; and that upon meeting with the boy who kept the key, she desired him to go with her to the house; and, by way of inducement, promised him a pot of ale. The boy accordingly went with her, opened the door, and let her in; upon which she sent him for the pot of ale, and, when he was gone, robbed the house, and went away. And this being in the night time, it was adjudged that the prisoner was clearly guilty of burglary. (g) The breaking may also be by conspiracy. Thus where a servant By conspiracy. conspired with a thief to let him into his master's house to commit a robbery, and in consequence of such agreement, opened the door or window in the night time, and let him in; this, according to the better opinion, was considered to be burglary in both the thief and the servant. (r) And this doctrine is confirmed by a subsequent decision. Two men were indicted for burglary; and, upon the evidence, it appeared, that one of them was a servant in the house where the offence was committed; that in the night time he opened the street door, let in the other prisoner, and (1) Farre's case, Kel. 43. (m) Per Cur. in Gascoigne's case, 1 Leach 284. (n) Le Mott's case, Kel. 42. 1 Hawk. P. C. c. 38. s. 8. (0) Casey and Cotter, (case of) Kel. 62, 63. 1 Hawk. P. C. c. 38. s. 9. referred to by the court, in giving judgment in Semple's case, I Leach 424. (p) 1 Hawk. P. C. c. 38. s. 9. 4 Black. Com. 227. 2 East. P. C. c. 15. s. 2. p. 485. (4) Rex v. Hawkins, O. B. 1704. 1 East. P. C. c. 15. s. 2. p. 485, cited (r) 1 Hale 553. 1 Hawk. P. C. c. By servants. Of the enter ing necessary to constitute a burglary. Discharging a gun, &c. on shewed him the side-board, from whence the other prisoner took It may With respect to the entering necessary to constitute burglary; it is agreed, that any, the least, entry either with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, will be sufficient. (u) Thus, where the prisoner, in the night time, cut a hole in the window shutters of the prosecutor's shop, which was part of the dwelling-house, and putting his hand through the hole, took out watches and other things, which hung in the shop, within his reach, it was holden to be burglary. (x) So, if a thief breaks the window of a house in the night time, with an intent to steal, and puts in a hook or other engine, to reach out goods; or puts a pistol in at the window with intent to kill; this is burglary, though his hand be not within the window. (y) And, in a case where thieves came in the night to rob A., who perceiving it opened his door, issued out, and struck one of the thieves with a staff, when another of them, having a pistol in his hand, and perceiving persons in the entry ready to interrupt them, put his pistol within the door, over the threshold, and shot, in such manner that his hand was over the threshold, but neither his foot nor any other part of his body, it was adjudged burglary · by great advice. (z) Though it is admitted that a person putting a pistol in at a window with intent to kill, thereby makes a sufficient entry, to the outside of constitute a burglary, yet it has been questioned whether if he should shoot without the window, and the bullet come in, the en the house. (s) Cornwal's case, 2 Str. 881. 1 Hawk. P. C. c. 38. s. 14. 19 St. Tri. (Howel) 782 in the note. (t) 2 Hale 354, 355. (u) 3 Inst. 64. 1 Hale 555. Sum. 80. 1 Hawk. P. C. c. 38. s. 11, 12, 1 And. 115. Lamb. c. 7. p. 263. Fost. 108. 4 Black. Com, 227. I Bacon. Ab. Burgl. (B). 80. (x) Gibbons's case, Fost. 107, 108. (y) 3 Inst. 64. 1 Hale 555. Sum. (2) 1 Hale 553. Crompt. 32 (a) 2 East. P. C. c. 15. s. 7. p. 490. try would be sufficient. (a) It is, however, elsewhere laid down, that to discharge a loaded gun into a house is a sufficient entry.(b) And a learned writer has observed, that it seems difficult to make a distinction between this kind of implied entry, and that which is effected by means of an instrument introduced within the window or threshold, for the purpose of committing a felony; unless it be that the one instrument by which the entry is effected is holden in the hand, and the other discharged from it: but that no such distinction is any where laid down in terms. (c) act of break ing the house. It appears, however, that the mere introduction of an instru- Introduction ment, in the act of breaking the house, will not make a sufficient of an instruentry; but that the instrument by which the entry is effected ment, in the must be introduced for the purpose of committing a felony. So that where a thief broke a hole in a house, intending to rob the owner, but had not otherwise entered, when the owner for fear threw out his money to him, and he went off with it; the better opinion appears to have been, that it was not burglary. (d) In another case it appeared in evidence that the prisoners had bored a hole with an instrument called a centre-bit through the pannel of a house door, near to one of the bolts by which it was fastened; and that some pieces of the broken pannel were found withinside the threshold of the door; but it did not appear, that any instrument except the point of the centre-bit, or that any part of the bodies of the prisoners had been withinside the house, or that the aperture made was large enough to admit a man's hand: and the court held this not to be a sufficient entry. (e) Where a glass window was broken, and the window opened with the hand, but the shutters in the inside were not broken, it was ruled to be burglary, but considered as going to the extremity of the law. (f) In a more recent case however, it was decided that introducing the hand between the glass of an outer window, and an inner shutter, is a sufficient entry to constitute burglary, on the ground that as the glass of the window is the outer fence, whatever is within the glass is within the house. The facts were, that a sash window was fastened in the usual way by a latch from the bottom of the upper sash to the top of the lower one, and there were inside shutters fastened within: the prisoner broke a pane in the upper sash and introduced his hand within the window (b) 1 Hawk. P. C. c. 38. s. 11. ; and it appears to have been ruled by Lord Ellenborough, C. J. that a person discharging a gun from the outside of a field, into it, so as that the shot must have struck the soil, was guilty of breaking and entering the field. See Pickering v. Rudd, 4 Campb. 220. 1 Stark. R. 58. (c) 1 East. P. C. c. 15. s. 7, p. 490. (d) Hale 555, ante 8. note (g) (e) Rex v. Hughes and others, O. B. 1785. 1 Leach 406. 1 Hawk. P. C. c. 38. s. 12. 2 East. P. C. c. 15. s. 7. p. 491. (f) Roberts's alias Chambers's case, O. B. 1702. 1 East. P. C. c. 15. s. 3. p. 487. It was so ruled by Ward, Ch. B. Powis and Tracy, Js., and the Recorder; and they thought this the extremity of the law: and, on a subsequent conference with the other Judges, Holt, C. J. and Powell, J. doubting, and inclining to another opinion, no judgment was given. Entry need not be made the same night as the breaking. A breaking and entering by one, will be the act of the whole party engaged in the transaction. Entry and stealing effected by means of an infant. Of the mansion-house. What shall be considered a mansionhouse. to undo the latch, but whilst he was cutting a hole in the shutter with a centre-bit, and before he had undone the latch of the window, he was seized. The point saved for the consideration of the judges was, whether the introduction of the hand between the window and the shutter to undo the window latch, was a sufficient entry, and the judges present held that it was. (g) And in a more recent case where in breaking a window in order to steal something in the house, the prisoner's finger went within the house, the judges held that there was a sufficient entry to constitute burglary. The prisoner was instantly apprehended before he could put in his hand to steal any thing. () The entry need not be made on the same night as the breaking, though both must be done in the night time: (i) but this point will be more properly mentioned in treating of the time at which the offence may be committed. The doctrine which has been laid down, respecting principals in the second degree, and aiders and abettors, in a former part of this work, will apply to the case of burglary; and make the breaking and entering by one the act of all the party engaged in the transaction, and legally present while the fact is committed. () So that if A., B., and C., go upon a common purpose and design to commit a burglary in the house of D., and A. only actually break and enter the house, B. stand near the door but do not enter, and C. stand at the lane's end, orchard gate, &c. to watch, this will be burglary in them all; and they are all in law principals. (1) Neither will the offence be the less the act of the party from his having effected the entry and the stealing by means of an infant under the age of discretion. Thus, if A., a man of full age, take a child of seven or eight years old, well instructed by him in the villanous art, as some such there are; and the child goes in at the window, takes goods out, and delivers them to A., who carries them away, this is burglary in A., though the child who made the entry, be not guilty, by reason of his infancy. (m) II. The breaking and entering, which have been thus described, must take place in a mansion, or dwelling-house; which latter term is now generally adopted in indictments for burglary. And in treating of such mansion, or dwelling-house, it will be proper to enquire, first, as to what shall be so considered; secondly, how far it must be inhabited; and, thirdly, as to the person to be deemed the owner of it; for the ownership must be correctly stated in the indictment. Every house for the dwelling and habitation of man is taken to be a mansion-house in which burglary may be committed. (n) And a portion only of a building may come under this description. Thus where, upon an indictment for burglary, it appeared that the (g) Rex v. Bailey, Hil. T. 1818, MS. Bayley, J., and Russ. & Ry. 341. Two of the judges, Lord Ellenborough, C. J., and Garrow, B., had some little doubt. The judges absent were Gibbs, C. J., Bayley, J., and Dallas, J. (h) Rex v. John Davis, Hil. T. 1823, Russ. & Ry. 499. (i) 1 Hale 551. 4 Black. Com. 226. (m) 1 Hale 555, 556. prosecutor rented only certain rooms of a house, namely, a shop and parlour, in which the burglary was committed, but that the owner did not inhabit any part of the house, and only occupied the cellar, it was holden that the shop and parlour were to be considered as the mansion-house of the prosecutor. (o) And sets of chambers, in a college, or an inn of court, are to all purposes considered as distinct dwelling-houses; being often held under distinct titles, and, in their nature and manner of occupation, as unconnected with each other, as if they were under separate roofs. (p) A loft, situated over a coach-house and stables, in a public mews, and converted into lodging rooms, has also been holden to be a dwelling-house. It appeared that the prosecutor, who was coachman to a lady, rented the rooms at a yearly rent; but that he had never paid any rent; and that the rooms were not rated in the parish books as dwelling-houses, but as appurtenances to the coach-house and stables: that the way to the coachhouse and stables was down a passage, out of the public mews, to a staircase which led to these rooms, and the entrance to which staircase was through a door, which was never fastened, but that there was a door at the top of the staircase to the rooms which was locked at night, and was broken by the prisoner. It was contended, on behalf of the prisoner, that these rooms, which probably were originally intended as mere hay-lofts, did not, in contemplation of law, form such mansions, or dwelling-houses, as to become the subject of burglary: but the objection was overruled by the court, who thought that the circumstance of these rooms being situated over the coach-house and stables would not alter the nature of the case; and that they were to all intents and purposes the habitation and domicile of the prosecutor and his family. (7) Burglary, however, cannot be committed by breaking into any inclosed ground, or any booth, or tent, erected in a market, or fair, though the owner may lodge therein; for the law regards thus highly, nothing but permanent edifices; and the lodging of the owner in so frail a tenement no more makes it burglary to break it open than it would be to uncover a tilted waggon, in the same circumstances. (r) The mansion or dwelling-house, in which burglary might be committed, was held formerly to include the outhouses, such as warehouses, barns, stables, cowhouses, or dairy-houses, though not under the same roof, or joining contiguous to the dwelling (0) Rogers's case, 1 Leach 89, 428. 2 East. P. C. c. 15. s. 19. The points respecting different mansions in the same house will be considered presently, in treating of the ownership of the mansion-house. (p) 1 Hale 522, 556. 1 Hawk. P. C. c. 38. s. 18. Evans and Fynche (case of). Cro. Car. 473. 4 Black. Com. 252. 2 East. P. C. c. 15. s. 17. p. 505. (q) Turner's case, O. B. 1784, cor. Gould and Buller, Js. ; and Perryn, B. 1 Leach 305. 2 East. P. C. c. 15, s. 9. p. 492. Mr. J. Buller did not give (r) 1 Hale 557. 1 Hawk. P. C. c. |