it is accompanied with such circumstances as make it as heinous Dyer, 99. as an actual breaking. 1 And. 114, 115. Savil, 59. Sect. 5. And from hence it follows, that if one enter into a 2 Hale, 558. house by a door which he finds open, or through a hole which was made there before, and steal goods, &c. or draw any thing out of Foster, 107. a house, through a door or window which were open before, or enter into a house by the doors open in the day-time, and lie there till night, and then rob and go away, without breaking any part of the house, he is not guilty of burglary. Sect. 6. But it is certain, that he would have been guilty thereof Foster, 107. if he had opened the window, or unlocked the door, or broke a hole in the wall, and then entered, &c. or if having entered by a door which he found open, or having lain in the house by the owner's consent, he had but unlatched a chamber door, or if he had come down by the chimney (2) (in which case though it might be said that the house was open there, and so not actually broken, yet it was as much inclosed as the nature of the thing would bear.) 115. Sect. 7. And according to some opinions, he would have been Crom. 32. in like manner guilty, if upon an assault made by him upon the Contra, 1 And. house, with an intent to rob it, the owner had opened the door in order to drive him off, and thereupon he had entered; in which case, as some say, the opening of the door by the owner, being occasioned by the felonious attempt of the other, is as much imputable to him as if it had been actually done by his own hands. Sect. 8. And it has also been resolved, that where divers per- (a) Le Motts' sons came to a house with an intent to rob it, and knocked at case related by the door, pretending to have business with the owner, and Wild to Kelynge, 42. being by that means let in, rifled the house, they were guilty of burglary. (a) Sect. 9. Also it hath been adjudged, that those were no less Kely. 52,53.63. guilty, who, having a design to rob a house, took lodgings in it, and then fell on the landlord and robbed him; for the law will not endure to have its justice defrauded by such evasions. 4 Com. 225. Sect. 10. And for the like reason, à fortiori, it has been re- Crom. 32. Dalt. solved, that where persons, intending to rob a house, raised a c. 151. 1 Hale, HUE AND CRY, and prevailed with the constable to make a search 552. 3 Inst. 64. in the house, and having got in by that means, with the owner's consent, bound the constable, and robbed the inhabitants, they were guilty of burglary. For there cannot be a greater affront to public justice, than to make use of legal process as a stale for such villainous purposes; and therefore the whole act is esteemed tortious ab initio. (3) (2) Lord Hale once doubted whether entering the house by coming down the chimney was a breaking, but it appearing that the thief loosened some bricks in his descent which fell into the room, he ruled it to be a burglarious breaking. (1 H. H. P. C. p. 552). It has, however, since been ruled that getting into the chimney at the top, thereby to enter the honse with a burglarious intent, is both a breaking and entering, for that the chimney is a As part of the dwelling house. (M.S.-Appendix to Chetwynd, Burn, p. 86.) (3)" At the O. B. sessions, before Easter T. "1704, Ann Hawkins was indicted for burglary : "and upon the evidence it appeared that she was ac"quainted with the house, and knew that the family "were in the country; that meeting with the boy "who kept the key, she desired him to go with her "to the house, and, to induce him, promised him a K 2 "pot Dalt. c. 151. 1 Hale, 553.555. 4 Comm. 345. (a) See the case of Geo. Gibbons in point, Foster, 108. Case of John 1 Hale,439.555. Fost. 350. 353. Dalton, 151. 1 Hale, 555. (b) Stra. 881. As to THE FOURTH POINT, viz. What entry is sufficient to this purpose. Sect. 11. It seems agreed, that any the least entry, either with the whole or with but part of the body, or with any instrument, or weapon, will satisfy the word “ intravit” in an indictment of burglary; as if one do but put his foot over the threshold, or his hand, (a) or a hook or pistol within a window, or turn the key of door which is locked on the inside, or discharge a loaded gun into a house, &c. a Sect. 12. But it seems, that the instrument must be introduced for the purpose of committing the felony. Therefore, where thieves, having bored a hole through the door with a center bit, and part of the chips were found in the inside of the house, yet as they had neither got in themselves, nor introduced a hand or instrument for the purpose of taking the property, the entering was ruled incomplete. Sect. 13. It is certain, however, that in some cases one may be guilty of burglary, who never made an actual entry at all; as where divers come to commit a burglary together, and some stand to watch in adjacent places, and the others enter and rob, &c. for in all such cases, the act of one is in judgment of law the act of all. Sect. 14. And upon the like ground it has been deliberately determined (b) upon a special verdict, that a servant who, confe10 St. Tr. 433. derating with a rogue, lets him in to rob a house, &c. is guilty of burglary as much as the rogue himself; for it is clear, that if the servant were out of the house, the entry of the other would be adjudged to be his also; and what difference is there when he is in the house? (4) 66 Sect. 15. It is recited by 12 Ann. c. 7. "That there had been some doubt, whether the entering into a mansion-house, without breaking the same, with an intent to commit some felony, and breaking the said house in the night-time to get out, were burglary;" and thereupon it is declared and enacted," That if any person shall enter into the mansion or dwelling-house of ano"ther by day or by night, without breaking the same, with an in"tent to commit felony, or being in such a house shall commit any felony, and shall in the night-time break the said house to "6 get out of the same, such person is, and shall be taken to be guilty of burglary, and ousted of the benefit of clergy, in the same manner as if such person had broken and entered the "said house in the night-time, with an intent to commit felony "there." 66 As "out any colour of title, and then rifling the house, "was ruled to be within the statute against breaking "the house and stealing goods therein." (2 E. 485.) The above are cases of constructive breakings. (4) The breaking and entering need not both be on the same night to constitute the offence, for if the breaking be on one night and the entry through the breaking on another night-both being noctanter, both shall be laid as done the last night. (1 H. H. P. C. 551.) As to THE FIFTH POINT, viz. In what place this offence may be committed. Sect. 16. It seems to be the current opinion at this day, that it can be committed only in a dwelling-house; and that the indictment for it must necessarily allege the fact in domo mansionali. (5) 27 Ass. 38. Fost. 38, 39. 1 And. 302. S. P. C. 30. Kelynge, 27. Popham, 42. Prin. P. L. 274. Sect. 17. And Sir Edward Coke seems to say, that the breaking a church, &c. is therefore burglary, because the church is the mansion house of GOD. But I can find nothing in the more ancient authors to countenance this nicety; for the general tenor of the old books seems to be, that burglary may be committed in breaking houses, or churches, or the walls or gates of a town.And Staundforde and Anderson mention precedents of indictments of burglary in domo without adding mansionali. However the constant course of late precedents and opinions makes it certainly very dangerous, if not an incurable fault, to omit the word mansionalis in an indictment of burglary in a house; and therefore without question, it ought always to be inserted where the truth of the case will bear it. But surely it cannot be necessary or proper to have any such word in an indictment of burglary in a church, which, by all the books above cited, seems to be taken as a distinct burglary from that in a house. Sect. 18. However it is agreed by all, that a house wherein a man dwells but for part of the year, (u) or a house which one has hired to live in, and brought part of his goods into, but has not yet lodged in, or a chamber in one of the inns of court wherein a person usually lodges, or house which a man's wife hires without his privity, and lives in by herself without him, may be called his dwelling-house; and will sufficiently satisfy the words domus mansionalis in the indictment, whether any person were actually therei, or not, at the time of the offence. (a) See the case 1 Hale, 556. 4 Coke, 40. 1 169. Sect. 19. But it has been held, that burglary cannot be com- Lyon's case, mitted in a house under repair, although part of the property of Cases C. L. its owner be there deposited; for until he take possession with intent to inhabit, it is not his mansion or dwelling-house. notis. + Sect. 20. So also it hath been ruled, that burglary cannot Fuller's case, be committed in an unfinished house, if neither the owner nor his Cases C. L. 169, servants have taken possession of it, although one of the workmen of the owner sleep therein for the purpose of protecting it. (5) As to what shall be considered the mansion house, and to what buildings it shall extend-the mansion not only includes the dwelling-house, but also all the out-houses, such as barns, stables, cowhouses, dairy-houses, and the like, if they be part of the messuage, though they be not under the same roof or joining contiguous to it. 1 H. H. P. C. 558. John Egginton and others were indicted for burglary in the dwelling-house of Matthew Robinson Boulton. It appeared that there was a range Sect. of buildings, in the centre of which was a manufactory,&c.; the wings were dwelling-houses of persons engaged in Mr. B.'s manufactory, the whole being under the same roof and within the same common fence, but no internal communication. Mr. R. Boulton lived in one wing, and a steward of his in a house in the other wing. It was held that the manufactory was no part of the dwelling-house of any of the parties who lived in the wings; and the prisoners were discharged of the burglary. 2 E. P. C. 496. 3 Institute, 64. Dalt. c. 151. B. Cor. 180. Crompton, 32. 1 Hale, 558. 4 Com. 245. Sect. 21. But all out-buildings, as barns, stables, dairy-houses, &c. adjoining to a house, are looked upon as part thereof, and consequently burglary may be committed in them. Kely. 27.52.82. Rex v. Garland, merset, 1776, on a case reserv Sect. 22. But if they be removed at any distance from the house, it seems, that it has not been usual of late to proceed against offences therein as burglaries. Sect. 23. And therefore it has been decided, that an outAssizes for So- house occupied by the prosecutor with his dwelling-house, but separated therefrom by an open passage eight feet wide, and not connected with the dwelling-house, by any fence inclosing both the said out-house and dwelling-house, is not a place in which a burglary can be committed. ed by EYRE, Baron. Castle's case, 1 Hale, 558. Case of Gibson and others, + Sect. 24. But it has been held, that the breaking and entering in the night-time into a bake-house eight or nine yards distance from the dwelling-house, but connected with each other by means of a paling, is burglary. + Sect. 25. So also burglary may be committed in a shop adCases C.L. 287. joining to a house, if under the same roof, or within the curtilage, although there be no internal communication between the shop and the house, and although no person sleep in the shop. 1 Hale, 556. Crom. 33. Sect. 26. If several persons dwell in one house, as servants, Con. Kely. 83. guests, tenants at will, or otherwise, having no fixed and certain interest in any part thereof, and a burglary be committed in any of their apartments, it seems clear, that the indictment shall lay the offence in the mansion house of the proprietor, &c. Dalt. c. 151. 3 Inst. 65. Co. Lit. 48. See Rex v. Gansel, Cowp. 4. Sect. 27. But if one hire a distinct apartment in a house for his lodging for a certain time, and a burglary be committed therein, I can see no good reason why the indictment may not lay the offence in domo mansionali of such lodger; for it seems to be agreed, that the indictment for a burglary committed in a chamber in one of the inns of court, may lay the offence in domo mansionali of the owner of the chamber; and why may not such an apartment, with as much propriety be called the mansion-house of him that takes it, during the time that he has a certain interest in it for so long as it is severed by the lease, it seems in the eye of the law to be as distinct from the other parts of the house, as if the person who rents it had a freehold or inheritance in it. As to the objection, that he goes into the house by the same door with the other inhabitants, and therefore is but an inmate, and the whole ought to be considered but as one house, I answer, that he must have some way to his apartment as incident to his interest in it, and that such way lying through a door which is common to him with others, doth not make the apartment itself in any respect less his own, than a way through a door belonging to himself only would have done; and if the law be so in this case, it seems to me very reasonable also, that if such a lodger take also a cellar in the said house, a burglary committed in such cellar, may be alleged in domo mansionali of the lodger, whether the cellar cellar had any communication with the house or not (a); for since (4)Provided the it seems to be agreed, that a barn or stable, or other out-building near to a house, shall be looked on as part thereof, why should not such a cellar have the like estimation? Sect. 28. However it is agreed by all, that if one hire a part of a house to lodge in, which is actually divided from the rest, and have a door of its own to the street, a burglary therein may be alleged in domo mansionali of such person. owner does not contra. sion, 1772, on + Sect. 29. It has therefore been decided, that when the owner Rex v. Rogers, of a house had let the whole of it in apartments to different . B. Oct. Sespersons, and did not inhabit any part of himself; and one of the a case reserved inmates rented a shop, a parlour, and a cellar underneath, for the opinion at £12. 10s. a year, which cellar the owner afterwards reserved of the Judges. to himself to keep lumber in, and deducted 10s. yearly from the £12. 10s. for the rent of the same, the shop and parlour of such inmate, if feloniously broken open in the night-time, may be laid to be the dwelling-house of such inmate. L. 333. + Sect. 30. So also where a house was situated in a mews, Trapshaw's and the whole of it let out in lodgings to three families, with case, Cases C. only one outer door, which was common to all the inmates, one of whom rented the ground floor and a single room up one pair of stairs, and the door of the parlour was broke open in the night, it was determined that this parlour was well laid to be the dwelling-house of the particular inmate. 249. + Sect. 31. So also where a coachman lived in rooms situated Turner's case, over the coach-house and stables of a public mews, but never paid Cases Cro. L. any rent, nor were the premises rated in the parish-books except as appurtenances to the coach-house and stables, the way to which was down a passage leading to a staircase which led to these rooms through a door which was never fastened, but there was a door at the top of the staircase to the rooms which was locked at night, it was held, that these rooms were such a dwelling-house in which burglary might be committed. Sess. 1782. + Sect. 52. So also where the inmate of a house so let had Richard Cartwo apartments therein, viz. a sleeping room up one pair of roll's case, stairs, and a working-shop in the garret, which he rented by the O. B. Febr. week as tenant at will, and a burglary was committed in the Cases Cro. work-shop, it was determined that the burglary was well laid in Law, 205. the mansion-house of such inmate. 1 Hale, 557, Sect. 33. But if he had taken it as a shop or work-house for Hutton, 33. his use in day-time only, it seems that a felony therein cannot be 558. alleged in a mansion-house; not of him that lets it, because it is Vid. 13 Geo. 3. severed by the lease from that part of the house which belongs c. 38. respecting burglary in to him, nor of him to whom it is let, because he takes it not to the workshops lodge in. of the Plate Glass Manufac 434. + Sect. 34. But if two partners in trade respectively live in ad- tory. joining houses, the shop underneath being common to both, and Jones' case, no internal communication between the two houses, but each of Cases C. L. them having an outer door from the street, each house may be said to be the dwelling-house of its respective inhabitant, although the rent and taxes are paid out of the joint funds. Sect. |