burglary

unlawful or unprivileged entry in- to, or remaining in, a building or structure, with intent to commit a crime," Taylor v. United States, 495 U. S. 575, 599 (emphasis added).

At common law, the breaking and entering the house of another in the night-time, with intent to commit a felony therein, whether the felony be actually committed or not. Coke, 3d Inst. 63; 1 Hale, P. C. 549; 1 Hawk. P. C. c. 38, § 1; 4 Bl. Comm. 224; 2 East, P. C. c. 15, § 1, p. 484; 2 Russ. Crimes, 2; Rose. Crim. Ev. 252; 1 Coxe (N. J.) 441; 7 Mass. 247. The elements of the offense are: (1) The breaking (105 Mass. 588); but a constructive breaking is sufficient (9 Ired. [N. C.] 463). See "Breaking." (2) The entry. 111 Mass. 395. (3) The building broken and entered must be the dwelling house of another (43 Ala. 17); but an outstanding building within the curtilage is regarded as part of the dwelling (26 Ala. 45). (4) Both breaking and entry must be in the nighttime. 10 N. H. 105. (5) And both must be with intent to commit a felony in the house (12 N. H. 42); but the felony need not have been committed (29 Ind. 80). The offense has been enlarged by statute both as to the buildings broken into, and as to the time of the breaking and entry.

The breaking and entering the house of another in the night-time, with intent to commit a felony therein, whether the felony be actually committed or not. Co. 3d Inst. 63; 1 Hale, PI. Cr. 549; 1 Hawk. PI. Cr. c. 38, s. 1; 4 Bla. Com. 224; 2 Russ. Cr. 2; State v. Wilson, 1 N. J. L. 441, 1 Am. 'Dec. 216; Com. v. Newell, 7 Mass. 247; 1 Whart Cr. L. (9th ed.) § 758; Allen v. State, 40 Ala. 334, 91 Am. Dec. 477. In what place a burglary can be committed. It must, in general, be committed in a mansion-house, actually occupied as a dwelling; but if it be left by the owner animo revertendi, though no person resides in it in his absence, it is still his mansion; Fost. 77; Com. v. Brown, 3 Rawle (Pa.) 207; Com. v. Barney, 10 Cush. (Mass.) 478. See Dwelling-house. But burglary may be committed in a church, at common law. And under the statutes of some of the states, it has been held that it could be committed in a store over which were rooms in which the owner lived; Quinn v. People, 71 N. Y. 561, 27 Am. Rep. 87. A shoeshop in a room connected with the dwelling is a part of it; People v. Dupree, 98 Mich. 26, 56 N. W. 1046; a wheat house; Bass v. State, 1 Lea (Tenn.) 444; a railroad depot; State v. Bishop, 51 Vt. 287, 31 Am. Rep. 690; a stable; Orrell v. People, 94 111. 456, 34 Am. Rep. 241; but not a millhouse, seventy-five yards from the owner's dwelling, and not shown to be appurtenant; 3 Cox 581; Co. 3d Inst. 64. It must be the dwelling-house of another person; 2 Bish. Cr. Law § 90; 2 East, PI. Cr. 502. A storehouse in which a clerk sleeps to protect the property is a dwelling; State v. Pressley, 90 N. C. 730; U. S. v. Johnson, 2 Cra. C. C. 21, offence must be committed in the night; for In the daytime there can be no burglary; 4 Bla. Com. 224; 1 C. & K. 77; Lewis v. State, 16 Conn. 32; State v. Bancroft, 10 N. H. 10.".. For this purpose it is deemed night when by the light of the sun a person cannot clearly discern the face or countenance of another; 1 Hale, PI. Cr. 550; Co.:;«1 Inst. 62; 1 C. & P. 297; 7 Dane. Abr. 134. This rule, it is evident, does not apply to moonlight; 4 Bla. Com. 224; 2 Russ. Cr. 32; State v. Bancroft, 10 N. H. 105; Thomas v. State, 5 How (Miss.) 20; State v. Mc- Knight, 111 N. C. C90, 10 S. E. 310. The breaking ami entering need not be done the same night; 1 R. & R. 417: but it is necessary that the breaking and entering should be in the night-time; for if the breaking be in daylight and the entry in the night, or vice versa, it is said, it will not be burglary; 1 Hale, PI. Cr. 551; 2 Russ. Cr. 32. But qucrre, Wilniot, Burgl. 9. See Com., Dig. Justices, P, 2; 2 Chit. Cr. Law 1092. In some states by statute the breaking and entering in the daytime with intent to commit a misdemeanor or felony is burglary: State v. Miller, 3 Wash. 131, 28 Pac. 375; State v. Hutchinson, 111 Mo. 257, 20 S. W. 34. The means used. There must be both a brcalnno and an entry or an exit. An actual "breaking takes place when the burglar breaks or removes any part of the house, or the fastenings provided for it, with violence; 1 Bish. Cr. Law 91. Breaking a window, taking a pane of glass out, by breaking or bending the nails or other fastenings; 1 C. & P. 300; 9 id. 44; 1 R. & ',R. 341, 499; Walker v. State, 52 Ala. 376; cutting and tearing down a netting of twine nailed over an open window; Com. v. Stephenson, S Pick. (Mass.) 354; Sims v. State, 136 Ind. 358, 36 N. E. 278; raising a latch, where the door is not otherwise fastened; 8 C. & P. 747; Cose 439; Curtis v. Hubbard, 1 Hill (N. Y.) 336; State v. Newbegin, 25 Me. 500; Bass v. State, 1 Lea (Tenn.) 444; Timmons v. State, 34 Ohio St. 426, 32 Am. Rep. 370; State v. O'Brien, 81 la. 93, 46 N. W. 801; picking open a lock with a false key; putting back the lock of a door, or the fastening of a window, with an instrument; lowering a window fastened only by a wedge or weight; 1 R. & R. 355, 451; State v. Moore, 117 Mo. 395, 22 S. W. 1086; Walker v. State, 52 Ala. 376; or opening a door when not locked or bolted; Grimes v. State, 77 Ga. 762, 4 Am. St. Rep. 112; contra, Williams v. State (Tex.) 13 S. W. 000; State v. Reid, 20 la. 413; Timmons v. State, 34 Ohio St. 426, 32 Am. Rep. 376; People v. Nolan, 22 Mich. 229; Carter v. State. 68 Ala. 96; Lyons v. People, OS 111. 271; turning the key when the door is locked in the inside, or unloosing any other fastening which the owner has provided; lifting a ing. But removing a loose plank in a tition wall was held not a breaking; Com. v. Trimmer, 1 Mass. 476. According to the Scotch law, entering a house by means of the true key, while in the door, or when it had been stolen, is a breaking; Alison, Pr. 284. See 1 Swint, Just 133. Constructive breakings occur when the bnrglar gains an entry by fraud: 1 <'r. & D. L'irj; Ducher v. State, 18 Ohio. 308; v. 1 1.nry. 31 N. C. 403; 'Rolland v. I monwealth, 82 Pa. 306; by conspiracy or threats; i Russ. Cr. Graves ed. Tml': 2; Slate v. Rowe. 98 N. C. <'C\ 4 S. D. by bribing a servant: by knocking at the door, and, when opened, rushing in: by gaining admittance on pretense of wishing to speak to some one within; by gaining admittance by threats; Odgers, Com. L. 383. When one of three breaks and enters, another watches at the door, and a third stands farther off to give notice if help comes, it is burglary in all; 1 Hale, PI. Cr. 555. Where one is let into a store in the nighttime on pretence of making a purchase and while in he unbolts a door and admits his accomplice, who secretes himself on the inside and afterwards steals, both may be convicted of breaking and entering; Com. v. Lourey, 1S8 Mass. 18, 32 N. E. 940. Where a window is slightly raised in the daytime so as to prevent the bolt from being effectual, it would not prevent the subsequent breaking and entering in the nighttime through the window from being burglary: People v. Dupree, 98 Mich. 26. E W. 1046. The breaking of an inner door of the house will be sufficient to constitute a burglary; 1 Hale, PI. Cr. 553: 8 C. & P. 747: People v. Fralick. Lalor's Sup. (N. Y.) 63; 2 Bish. Cr. Law § 97: or the opening of an inner closed door; 2 East, P. C. 4S; and it is not necessary that such breaking be accompanied with an intention to commit a felony in the very room entered; Hartmann v. Com., 5 Pa. 00. Entry through an open door in the night-time with intent to steal is not burglary; Costello v. State (Tex.) 21 S. W. 300. Any. the least entry, 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 to constitute the offence; Co. 3d Inst. 04; 4 Bla. Com. 227; Bacon, Abr. Burolary <R>: Com. Dig. Justices, P. 4: Allen v. State. 40 Ala. 334, 91 Am. Dee. 177: Franco v. State, 12 Tex. 'J7d: Com. v. Glover, 111 Mas<. 395; Harris v. People, 4 1 Mich. 305, 0 N. W. 677. Where a person enters a chimney of a storehouse intending to go down such into the store to steal, he is guilty of burglary; Olds v. state. 07 Ala. 81, 12 South. 409. But the introduction of an introduced for the purpose of committing a felony; 1 Leach 406; 1 Mood. 183. The whole physical frame need not pass within; 2 Bish. Cr. Law § 92; 1 Gabb. Cr. Law 176. There was, at common law, doubt whether breaking out of a dwelling-house would constitute burglary; 4 Bla. Com. 227; 1 B. & H. Lead. Cr. Cas. 540; but it was declared to be so by stat. 12 Anne, c 7, § 3, and 7 & 8 Geo. IV. c. 29, § 11. The better opinion seems to be that it was not so at common law; Rolland v. Com., 82 Pa. 324, 22 Am. Rep. 75S; Whart. Cr. L. 9th ed. § 771; contra. State v. Ward. 43 Conn. 489. 21 Am. Rep. 665. As to what acts constitute a breaking out, see 1 Jebb 99; 8 C. & P. 747; 1 Russ. Cr. (Graves ed.) 792; 1 B. & H. Lead. Cr. Cas. 540. The intention. Tbe intent of the breaking and entry must be felonious; if a felony, however, be committed, the act will be prima facie evidence of an intent to commit it; 1 Gabb. Cr. Law 192. See Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756; State v. Scripture, 42 N. H. 485; People v. Young, 65 Cal. 225, 3 Pac. 813. See State v. Colter. 6 R. I. 195; Com. v. Tuck, 20 Pick. (Mass.) 356; Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9. If the breaking and entry be with an intention to commit a trespass, or a mere misdemeanor, and nothing further is done, the offence will not be burglary; Com. v. Newell, 7 Mass. 245; State v. Cooper, 16 Vt. 551; People v. Urquidas, 96 Cal. 239, 31 Pac. 52; 1 Hale, PI. Cr. 560. See Hamosocne; Breaking; Crepuscu-

The breaking and entering the dwelling-house of another by night, with intent to commit a felony. The meaning of the word has been to some extent modified by statute both in England and America, — in America, to include offenses committed by day, and in other buildings; and various degrees of the crime have been established also.

In criminal law. The breaking and entering the house of another in the night-time, with intent to commit a felony therein, whether the felony be actually committed or not. 38 Inst. 63; 1 Hale, P. C. 549; 1 Hawk. P. C. c. 88, § 1. Burglary is the breaking and entering the dwelling-bouse of another, in the night-time, with intent to commitafelony. 29 Ind. 80; 1 N. J. Law, 441; 9 Ired. 463; 1 Dev. 253; 7 Mass. 247. Por example: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.” Pen. Code Cal, § 459,

[L. Lat. burglaria, burgi latrocinium; Fr. burg laran; Sax. husbree,'\ In English criminal law^ The crime of breaking and entering into a dwelling house, or a buuding immediately connected therewith, in the night, with mtent to commit a felony, whether such felonious intent be executed or not. 3 Inst, 63. 1 Hal. P. C. 549. 4 Bl. Com, 224. Stat, 7 cfe 8 Geo. IV. c. 29, s. 13. 4 Steph, Com, 146, 148. 1 Russell on Crimes, 785. Wluvrton's Am, Crim, Law, 352. The breaking out {effractio) of a dwelling house in the night time, after having entered it with intent to commit felony, or after committing a felony while in such house. Stat. 1 <t S Geo. IV. c. 29, s. 11. Steph. Crim. Law, 162. 4 Steph. Com. 151. See Breaking, Effractores, Entering, Dwelling house. Curtilage, Night. In American law, the English definition of burglary has been so far modified as to include offences committed by day as well as by night, and in other buildings than dwelling houses; and various degrees of the crime have been established by statute m several of the states. Wharton's Am. Crim. Law, 350, 352. The term burglary, according to Spelman, is of Norman origin, the correspondbg terra in Saxon law being husbrec. It is usually supposed to be derived either from the Lat. burgus, a town, dwelling or enclosed place, and latrocinium, robbery, or from Fr. bourg, and larrecin, of similar significations; its radical meaning being the robbery, (or the breaking into, with a view to the robbery) of any fenced or enclosed place, as distinguished from the open country. Spelman, voc. Burglaria, Cowell. See Burgus, Hence it originally signified the breaking open, not only of a dwelling house, but of a church, and also the breaking of the walls or gates of a town {burgus), or city, (which, after the civil law, were anciently considered sacred,) with intent to commit a felony. Spelman. Bract, fol. 8, 207 b. So Britton defines burglars to be << those who feloniously, in time of peace, break churches, or the dwelling houses of others, or the walls or gates of cities, or burghs." BritL c. 10. The circumstance of breaking by night, (noctanter,) was not originally considered a characteristic of this crime, but seems to have been introduced in the reign of Edward VI. Spelman, 4 Beeves' Hist. Eng, Law, 639. Cra Ws Hist E, L. 309. Bracton classes burglars with robbers and murderers, who practice their wickedness by day and by night; (murdritores, et rchhatores, et burglatores, qui malitiam suam exercent die ac nocte.) Brcu^t fol. 115 b.

crim. law, is the breaking and entering the house of another in the night time with intent to commit a felony therein, whether the felony be actually committed or not. 3 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38,8. 1; 4 Bl. Com. 224; 2 East, P. C. c. 15, s. 1, p. 484; 2 Russcll on Cr. 2; Roscoe, Cr. Ev. 252. The circumstances essential to be considered, are, 1, in what place the offence must be committed; 2, at what time; 3, by what means; 4, with what intention. Ist. In what placethe burglary must be committed. It must, in general, be committed in a mansion house, actually occupied asa dwelling; but if it be left by the owner, animo revertandt, though no person resides in it in his absence, it is still his mansion. Fost. 77; 3 deemed a dwelling-house. 1 Leach, 185; 2 Leach, 771; Ib. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 958; Hawk. c. 38,5. 18; 1 Russ. on Cr. 16; 3 Serg. & Rawle, 199; 4 John. R. 424; 1 Nott & M’Cord, 583; 1 Hayw. 102, 242; Com. Dig. Justices, (P 5); 2 East, P. C. 504.—2. At what time it must be committed. The offence must be committed in the ‘night, for in the day time there ‘can be no burglary. 4 Bl. Com. 224. For this purpose it is night only when by the light of the sun a person cannot reasonably discern the face or countenance of another. 1 Hale, 550; 3 Inst. 63. This rule it is evident does not apply to moonlight, 4 Bl. Com. 224;:2 Russ. on Cr. 32. The breaking and entering need not be done the same night. 1 Russ. & Ry. 417; but it is necessary the breaking and entering should be in the night time, for if the breaking be in day light and the entry in the night, or vice versa, it will not be burglary. 1 Hale, 551; 2 Russ. on Cr. 32. Vide Com. Dig. Justices, (P 2); 2 Chit. Cr. Law, 1092.—3. The means used. ‘There must be both a breaking and an entry. First, of the breaking which may be actual or constructive. An actual breaki takes place when the burglar breaks or removes any part of the house or the fastenings provided for it, with violence. Breaking a window, taking a pane of glass out by breaking or bending the nails or other fastenings, raising a latch where the door is not otherwise fastened, picking open a lock with a false key, putting back the lock of a door or the fastening of a window, with an instrument, turning the key when the door is locked in the inside, or unloosening any other fastening which the owner has provided are several instances gains an entry by fraud, conspiracy or threats. 2 Russ. on Cr. 2; 2 Chit. Cr. Law, 1093. The breaking of an inner door of the house will be sufficient to constitute a burglary. 1 Hale, 553. Any, the least, entry, 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 to constitute the offence. 3Inst. 64; 4 Bl. Com. 227; Bac. Ab. Burglary, B; Com. Dig. Justices, (P 4). But the introduction of an instrument, in the act of breaking the house, will not be a sufficient entry unless it be introduced for the purpose of committing a felony.—4. T'he intention. The intent of the breaking and entry must be felonious; if a felony however be committed, the act will be prima facie pregnant evidence of an intent to commit it. If the breaking and entry be with an intention to commit a bare trespass, and nothing further is done, the offence will not be a burglary. 1 Hale, 560; East, P. C. 509, 514, 515; 2 Russ. on Cr. 33.