By fraud.

by the owner, the offence could not, it should seem, be burglary, though certainly robbery. (c)

Where an act is done in fraudem legis, the law gives no benefit thereof to the party. Thus if thieves, having an intent to rob, raise hue and cry, and bring the constable, to whom the owner opens the door, and they, when they come in, bind the constable, and rob the owner, it is burglary. (d) And, upon the same principle, the getting possession of a -dwelling house by a judgment against the casual ejector, obtained by false affidavits without any colour of title, and then rifling the house, was ruled to be within the statute against breaking the house, and stealing the goods therein. (e) 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 nighttime, a sufficient breaking and entering, to constitute burglary, or, if done in the day-time, house-breaking. (f)

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 night-time, with intent to

(c) 1 Hale 555. but he says, that some have held it burglary, though the thief never entered the house; and that it is reported to have been so adjudged by Saunders, chief baron. Crompt. 31. b. Lord Hale subjoins to this doctrine tamen quære; and certainly, as a part of the statement of the case is, that there was no entry into the house, and as an entry is, as will be presently shewn, as essential a part of the offence as the breaking, it seems difficult to discover the

ground on which it could have been ruled to be burglary. The editor of Lord Hale (ed. 1800) states in a note, that it was adjudged by Montague, chief justice of the C. B. and that Saunders only related it.

(d) 3 Inst. 64. 1 Hale 552, 553. Sum. 81. Crompt. 32 b. Kel. 44, 82. 1 Hawk. P. C. c, 38. s. 10. 4 Black. Com. 226.

(e) Farre's case, Kel. 43.

(f) Per Cur. in Gascoigne's case, 1 Leach 984.

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. (g) 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. (h) For the law will not endure to have its justice defrauded by such evasions. (i)

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. (k)

The breaking may also be by conspiracy. Thus where a Byconspiracy. servant 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. (1)

(g) Le Mott's case, Kel. 42. 1 Hawk. P. C. c. 38. s. 8.

(h) 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, 1 Leach 424.

(i) 1 Hawk, P. C. c. 38. s. 9. 4 Black. Com. 227, 2 East. P. C. c. 15. s. 2. p. 485.

(k) Hawkins's (Ann) case, O. B. 1704. 1 East. P. C. c. 15. s. 2. p. 485, cited from MS. Tracy 80. and MS. Sum.

(1) 1 Hale 553. 1 Hawk. P. C. c. 38. s. 14. 4 Black. Com. 227. In Dalt. c. 99. p. 253. (later ed. p. 487.) it is supposed only to be larceny in the servant; but, Lord Hale says, it seems to be burglary in both, for

By servants.

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 shewed him the side-board, from whence the other prisoner took the plate; that he then opened the door, and let the other prisoner out; did not go out with him, but went to bed. And upon these facts being found specially, all the judges were of opinion, that both the prisoners were guilty of burglary; and they were accordingly executed. (m)

It may be here mentioned, that in the case of a servant opening a door of his master's house for a felonious purpose, without any plan or conspiracy with other persons to commit a robbery, it seems to have been considered, that the question whether such act will amount to a breaking must depend upon the point, whether the door might have been opened by the servant in the course of his trust and employment. Thus, it is said, that if a servant unlatch a door, or turn a key in a door of his master's house, and steal preperty out of the room; such opening of the door, being within his trust, is not a breaking: but that if a servant break open a door, whether outward or inward, (as a closet, study, or counting house,) and steal goods, such opening, not being within his trust, will amount to a breaking of the house, either within the statutes relating to the breaking of dwelling houses in the day time, or within the law of burglary. (n)

Of the enter- With repect to the entering necessary to constitute buring necessary to constitute glary; it is agreed, that any, the least, entry either with the a burglary. whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of com

if it be burglary in the thief, it
must needs be so in the servant,
because he is present and aiding
the thief to commit a burglary.

(m) Cornwal's case, 2 Str. 881. 1 Hawk. P. C. c. 38. s. 14. 19 St. Tri. (Howel) 782 in the note. (n) 2 Hale 354, 855.

mitting a felony, will be sufficient. (0) 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. (p) 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. (q) 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. (r)

Though it is admitted that a person putting a pistol in at Discharging a a window with intent to kill, thereby makes a sufficient the outside of gun, &c. on entry, to constitute a burglary, yet it has been questioned the house. whether if he should shoot without the window, and the bullet come in, the entry would be sufficient. (s) It is, however, elsewhere laid down, that to discharge a loaded gun into a house is a sufficient entry. (1) And a learned

(0) 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. 1 Bacon. Ab. Burgl. (B).

(p) Gibbons's case, Fost. 107, 108. (q) 3 Inst. 64. 1 Hale 555, Sum. 80.

this seems to be no entry, to make
a burglary but a quære is added.

(t) 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,

(r) 1 Hale 553. Crompt. 32 (a) was guilty of breaking and entering

2 East. P. C. c. 15. s. 7.
p. 490.

the field. See Pickering v.

Rudd,

(s) 1 Hale 555, where it is said that

4 Campb. 220. 1 Stark. R. 58.

Introduction

of an instrument, in the

act of breaking the house.

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. (u)

It appears, however, that the mere introduction of an instrument, in the act of breaking the house, will not make a sufficient entry; but that the instrument by which the entry is effected 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. (x) 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. (y)

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. (≈)

(u) 1 East. P. C. c. 15. s. 7. p. 490.

(x) 1 Hale 555, ante 908. note (c) (y) Hughes and others (case of) O. B. 1785. 1 Leach 406. 1 Hawk.

P. C. c. 38. s. 12. 2 East. P. C. c. 15. s. 7. p. 491.

(z) Roberts's, alias Chambers's case, O. B. 1702. 1 East. P. C. c. 15. s. 3. p. 487. It was so ruled by