1. There must be a breach of the house made or procured Ch. XV. § 2. by the act of the felons; and this either by construction of law, or by actual force. Breaking. $2. &c. 3 Inst. 64. 1 Bac. Abr. 539. But though generally speaking every entry by a trespasser 1 Hale, 551, 2, be a breaking in law, yet that is not sufficient in this case; Kel. 67. 70. for the words of the indictment are, feloniously and burgla- 1 Hawk. ch. 38. riously broke, &c. Therefore if the door or window be left s. 4. Sum. 80, 1. open, and the thief enter and take away the goods in the 4 Blac.Com.226. night, that will not constitute a burglary. Though it is Dalt. ch.151.s.3. Crompt.Just. 32. otherwise if a thief enter by a chimney, because it is as much inclosed as the nature of the thing will admit of. To amount to a breaking within this branch of the definition, the entrance must be obtained either by fraud, conspiracy, threat, or force; these will be illustrated by different examples. Thieves having an intent to rob raised the hue and cry, By fraud. and brought the constable, to whom the owner opened the 1 Hawk. ch. 38. door; and when they came in they bound the constable and 3 Inst. 64. robbed the owner; held burglary. So if admission be Sum. 81. gained under pretence of business: or if one take lodgings Kel. 44. 82. with a like felonious intent, and afterwards rob the land-2 MS. Sum. 300, 1, 4. Lemott's lord: for the entrance was gained by fraud; and the law case, Kel. 42. will not endure to have its justice defrauded by such evasions. Branton's case, O. B. May 1784. By the same reasoning, getting possession of a dwelling-house Sess. Pap. 738. by a judgment against the casual ejector, obtained by false Cassy and Cotaffidavits without any colour of title, and then rifling the Kel. 63. house, was ruled to be within the statute against breaking Kel. 43. Post. the house and stealing goods therein. s. 5. 1 Hale, 552. 4 Blac.Com.226. ter's case, Farre's case, tit. Larceny. 80. & MS. Sum. At the Old Bailey sessions before Easter term 1704, Ann Ann Hawkins's Hawkins was indicted of burglary: and upon evidence it case, MS.Tracy, appeared that she was acquainted 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 pot of ale. The boy accordingly went with her, opened the door, and let her in. She then sent the boy for the pot of ale, robbed the house, and went off. This being in the night-time, Holt C. J., Tracy, and Bury adjudged it to be clearly burglary in the woman; for she prevailed with the boy by fraud to open the door with intent that she might rob the house: and Lord Ante, Kel. 42. & Holt relied upon Le Mott's case. 63. How Ch. XV. § 2. Eggington's Larceny, and post. 494. By conspiracy. 1 Hale, 553. 3. 8, 9. 5, 6. 3 Inst. 64. How far it might be considered as a breaking, if a servant acting in confidence and with the assent of his master let robbers in by agreement with them to steal, but in truth with a view to their apprehension, was the subject of much debate and doubt in Eggington's case; which is elsewhere set forth. In the next place, if A. the servant of B. conspire with C. to let him in to rob B., and accordingly A. in the night-time opens the door or window and lets him in; this is burglary in C.; but according to Dalton, ch. 99. only larceny in A.: Burnet's MS. yet by Lord Hale, it seems to be burglary in both; for if it Sum. 81, 2. acc. be burglary in C., it must needs be so in A., because he is 1 Hawk. ch. 38. present and aiding C. to commit the offence: and Hawkins, who is of the same opinion, compares it to the case where divers come to commit burglary, and some stand to watch in 1 Hale, 439.534, adjacent places, and others enter and rob: for in all such cases the act of one is in judgment of law the act of all. Josh. Cornwall's Joshua Cornwall was indicted with another person for 10 St. Tr. 433. n. burglary; and it appeared that he was a servant in the house; 4 Blac.Com.227. and in the night-time opened the street door and let in the other prisoner, who robbed the house: after which Cornwall opened the door and let the other out, but did not go out with him. It was doubted at the trial whether this were burglary in the servant, he not going out with the other. But afterwards at a meeting of all the judges at Serjeants' Inn, they were unanimously of opinion that it was burglary in both: and accordingly Cornwall was executed. case, 2 Stra. 881. By threats. 2 MS. Sum. 298. 1 Hale, 553. Crompt. 32. 1 Hawk. ch. 38. 3. 4. post. s. 7. Sum. 81. 2 MS. Sum. 300. 1 Hawk. ch. 38. s. 3. (Contra Dalt. ch. 151. s. 3.) Sav. 59. Crompt. 31. Sum. 80. There may also be a breaking in law, where, in consequence of violence commenced or threatened in order to obtain entrance, the owner, either from apprehension of the force, or with a view more effectually to repel it, opens the door, through which the robbers enter. But if the owner only throw his money out of the house to the thieves who assaulted it, this would not be burglary: though if the money were taken up in the owner's presence, it would be robbery. In all other cases where no fraud or conspiracy is made use of, or violence commenced or threatened, in order to obtain an entrance, there must be an actual breach of some part or other of the house; though it need not be accompanied with any violence as to the manner of executing it. As 1 As to what shall be considered as a sufficient breach of the Ch. XV. § 3. aouse in point of fact. Breaking. $3. 4 Blac.Com.226. 31. b. case, Winton The breaking a window, taking a pane of glass out by drawing or bending the nails or other fastening, the drawing Breach of what latch where the door is not otherwise fastened, picking 2 MS. Sum. 80. open a lock with a false key, putting back the lock of a door 1 Hale, 552. gr fastening of a window with an instrument, turning the 1 And. 114. key where the door is locked on the inside, or unloosing any Hutt. 20. Dalt. other fastening which the owner has provided; are all in- ch. 151. s. 3. Crompt. Just. stances of a breaking. On an indictment for burglary in the dwelling-house of Wm. Brown's George Aldridge, it appeared that the place which the pri- Sp. Ass. 1799. soner entered was a mill under the same roof and within the cor. Buller J. MS. same curtilage as the dwelling-house. Through the mill was an open entrance or gateway capable of admitting waggons, and intended for the purpose of loading them more easily with flour, through a large aperture or hatch over the gateway communicating with the floor above. This aperture was closed by folding doors with hinges which fell over it, and remained closed by their own weight, but without any interior fastening; so that those without under the gateway could push them open at their pleasure by a moderate exertion of strength. In this manner the prisoner was proved to have entered the mill in the night, with the evident intention of stealing the flour. And Buller J. held this a sufficient breaking to constitute the offence; and the prisoner was accordingly convicted. Chambers's Where a glass window was broken, and the window Roberts's alias opened with the hand, but the shutters in the inside were case, O. B. benot broken; this was ruled burglary by Ward Ch. B., fore Hil.T. 1702. MS. Tracy, 80. Powis, and Tracy Js. and the Recorder. But they thought this the extremity of the law: and on a subsequent conference, Holt C. J. and Powell J. doubting, and inclining to another opinion, no judgment was given. Lord Hale says, that by the 22 Ass. 95., which defines 1 Hale, 559. & vide Crompt. burglary to be a breaking of houses, churches, walls, courts, Just. 31. or gates, in time of peace; it seems that if a man have a wall about his house for its safeguard, and a thief in the night break the wall or the gates thereof, and finding the door of the house open enter the house; this is burglary; but otherwise if he had come over the wall of the court and found Breaking. Vide post. s. 8. Ch. XV. §3. found the door of the house open. He states this doubtingly; and the book to which he refers seems more properly to apply to the walls or gates of a city than to a private house: and therefore this latter application of it never seems to have had any authority to support it. But at any rate the distinction between breaking and coming over the wall or gate is very refined; for if it be part of the mansion, for the purpose of burglary, and be inclosed as much as the nature of the thing will admit of, it seems to be immaterial whether it be broken or over-leapt, and more properly to fall under the same consideration as the case of a chimney. And if it be not part of the mansion-house for this purpose, then whether it be broken or not is equally immaterial; in neither case will it amount to burglary. Ante, 485. $4. In the inside. 1 Hale, 553. Sum. 81. But though a thief enter a dwelling-house in the nighttime through the outer door being left open, or by an open window; yet if when within the house he turn the key of or unlatch a chamber door with intent to commit felony, this is burglary: and so it was adjudged on a special verdict at NewRex v. Johnson, gate 1672. The same was lately ruled in Johnson's case by Mich. T. 1786. all the judges; where the prisoner entered at a back door of the house of William Hughes at Newington in Surry, which had been left open by the family; and afterwards broke open an inner door, and stole goods out of the room; and then unbolted the street door on the inside and went out. MS. Buller J. & MS. Jud. Vide post. s. Sum. 82. 6. Keb. 67. 4 Blac. A servant lay in one part of the house, and his master in another: between them was a door at the foot of the stairs Com. 227. Rex which was latched. The servant in the night drew the v.Binglose, O.B. latch and entered the master's chamber in order to murder 2 W. & M. MS. Denton. Serjt. him; and held burglary. So where a servant opened his lady's chamber door, which was shut with a spring lock, with design to commit a rape. Forster's MS. Vide post. s. 15. & tit. Larceny. $ 5. Fixtures, &c. But Lord Hale doubts whether it would be burglary in a guest at an inn to open his own chamber door, with a felonious intent; because he had a special interest therein. And yet if another opened the guest's door burglariously, it must be laid to be the mansion of the innkeeper; and a guest may commit larceny of what is delivered to his charge. If the thief enter by the open door, and in the house break a trunk or box which was locked, this is no breaking to constitute constitute burglary; because such things are no part of the Ch. XV. § 5. house. Breaking. At a meeting of the Judges upon a special verdict in MS. Denton January 1690, they were divided in opinion upon the question, whether breaking open the door of a cupboard let into the wall of the house and fixed to the freehold were burglary Kel. 31. 59. 69. or not. Lord Hale expressly says, that such breaking is not 1 Hale, 527. burglary at common law; though he thinks it sufficient to bring the case within the stat. 5 & 6 Ed. 6. c. 9. and 39 Eliz. c. 15.: founding the distinction upon Simpson's case, where he states that the breaking open of a chest in the house Ib. 508. 524, 7. Vide 2 Hale,358. brought the offence within the stat. 39 Eliz.; which, if a moveable chest be meant, is denied by Mr. J. Foster to be Fost. 108. law; for Simpson's case could not turn upon the circumstance of breaking a chest or a cupboard, as in fact both the inward and outward doors were broken. With 11gard to Fost. 109. cupboards, presses, lockers, and other fixtures of the like kind, the same learned Judge thinks that in favour of life there ought to be a distinction between cases relative to mere property, as between the heir and executor, and such wherein life is concerned. In the former the law will presume the intention of the owner to have been to leave the house entire and undefaced. In the latter, such fixtures which merely supply the place of chests and other ordinary household utensils should be considered in no other light than as mere moveables partaking of the nature of those utensils, and adapted to the same uses. And Lord Hale, in another passage, seems 1 Hale, 555. to have inclined to the same opinion. 12 Ann. c. 7. By stat. 12 Ann. c. 7. stating the law to have been doubted, 66. it is declared and enacted, "that if any person shall enter into Breaking out. "the mansion or dwelling-house of another by day or by s. 3. "night, without breaking the same, with an intent to com- Ante, s. 4. "mit felony; or being in such house shall commit any felo"ny; and shall in the night-time break the said house to get "out of the same; such person is and shall be adjudged to "be guilty of burglary, and shall be ousted of the benefit of "clergy in the same manner as if such person had broke and "entered the said house in the night-time, with an intent "to commit felony there." |