is a sufficient breaking to sustain a charge of burglary. May v. State (1898) 40 Fla. 426, 24 So. 498; Com. v. Mackey (1916) 171 Ky. 473, 188 S. W. 676; Tickner v. People (1876) 6 Hun (N. Y.) 657; State v. Boon (1852) 35 N. C. (13 Ired. L.) 244, 57 Am. Dec. 555; Sparks v. State (1895) 34 Tex. Crim. Rep. 86, 29 S. W. 264; Parker v. State (1897) Tex. Crim. Rep. 38 S. W. 790; Jones v. State (1910) 60 Tex. Crim. Rep. 426, 132 S. W. 476; McNew v. State (1919) 84 Tex. Crim. Rep. 594, 208 S. W. 528; Finch v. Com. (1858) 14 Gratt. (Va.) 643.

Thus, in McNew v. State (1919) 84 Tex. Crim. Rep. 594, 208 S. W. 528, supra, the court said: "The indictment charged that accused 'did then and there unlawfully, and by force, threats, and fraud, break and enter, etc.,' there being no allegation in the indictment whether the same was in the daytime or the nighttime, but the testimony showed without question a nighttime burglary, if any, and an entry through the door of the alleged burglarized building. Nor was it contended in the lower court that if force was used to effect an entry that it was other than as applied to the building itself. Bearing in mind these facts, and that article 1308, P. C., defines a breaking as 'the slightest force,' and, also, that this court has uniformly held that such slight force as pushing open a door held shut only by friction against the frame thereof, or raising a window that is down, is such force as to constitute a breaking, we are unable to see any force in the position of appellant."

Likewise, in Finch v. Com. (Va.) supra, it was said: "In our case, the door through which the entry was made was not fastened by any lock, latch, or bar, nothing of the kind being there. The door fitted closely within the casing, and when closed some degree of force was required to open it; this was its only fastening. The circuit court ruled that the opening of the closed door thus fastened was a breaking within the statute, and the jury found accordingly. The decision of the court is sustained by adjudged cases. Lifting up the

flap of a cellar which is kept down by its own weight has been held, after some difference of opinion, to be a breaking. 2 Archbold, Crim. Pl. & Ev. 336, Waterman's notes. These and other cases of like kind indicate the rule in our case. The judgment

should be affirmed."

d. Pushing or lifting up trapdoor.

The pushing or lifting up of a trapdoor usually kept down by its own weight is a sufficient breaking to constitute a burglarious entry. Nash v. State (1886) 20 Tex. App. 384; Harrison v. State (1886) 20 Tex. App. 387, 54 Am. Rep. 529; Rex v. Brown (1799) 2 East, P. C. (Eng.) 487, 2 Leach, C. L. 1016, note; Rex v. Russell (1833) 1 Moody, C. C. (Eng.) 377. Compare Rex v. Lawrence (1830) 4 Car. & P. (Eng.) 231; Rex v. Callan (1809) Russ. & R. C. C. (Eng.) 157.

In Nash v. State (Tex.) supra, the court said: "From the evidence it appears that there was a trapdoor in the floor, which opened upwards on hinges. The proprietor of the mill, because of prior depredations of like character, suspected other burglarious attempts, and, to prevent their success, placed over the trapdoor 'a spring gun.' In order to fire this gun the door would have to be raised about 12 inches. On the night of the attempted burglary and theft, one of the party of would-be burglars placed his hand under the door and raised it, and, while pushing the door upward, the gun fired. Next morning the door was partly opened, being held in this position by a sack of flour which had been placed on it, and which had evidently caught under the edge of the door when the gun fired, and it fell back. As before suggested, did this act constitute an entry within the meaning of the statute? 'An entry is not confined to the entrance of the whole body; it may consist of the entry of any part, for the purpose of committing a felony.' When the door was raised, say 12 inches, the hand that raised the door was in the house, and, by virtue of the above excerpt from the statute, we think the entry was complete."

It appeared in Rex v. Brown (1799) 2 East, P. C. (Eng.) 487, 2 Leach, C. L. 1016, note, that the place which the prisoner entered was a mill, under the same roof and within the same curtilage as the dwelling house. Through the mill was an open entrance or gateway, capable of admitting wagons, 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 with 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; and in this manner the prisoner was proved to have entered the mill in the night. It was held that the entry into the mill with intention to steal flour by raising the trapdoor amounted to burglary. To the same effect, see Rex v. Russell (1833) 1 Moody, C. C. (Eng.) 377.

But in Rex v. Lawrence (1830) 4 Car. & P. (Eng.) 231, the lifting up of a trapdoor covering a cellar, which was merely kept in place by its own weight, and which had no fastenings, was held not a sufficient breaking to sustain a charge of burglary.

In Rex v. Callan (1809) Russ. & R. C. C. (Eng.) 157, wherein it appeared that the defendant broke out of a cellar by lifting up an unfastened door, the court was evenly divided as to whether there had been a sufficient breaking to constitute burglary.

e. Pushing open screen door held shut by spring hinges.

Pushing open a screen door hanging on spring hinges which serve to keep it closed has been held to constitute an actual breaking. State v. Conners (1895) 95 Iowa, 485, 64 N. W. 295; Collins v. Com. (1912) 146 Ky. 698, 38 L.R.A. (N.S.) 769, 143 S. W. 35; State v. Henderson (1908) 212 Mo. 208, 17 L.R.A. (N.S.) 1100, 110 S. W. 1078, 15 Ann. Cas. 930.

Thus, in Collins v. Com. (1912) 146 Ky. 698, 38 L.R.A. (N.S.) 769, 143 S. W. 35, supra, the court said: "According to the further testimony of White, it was his custom to keep the rear inner doors of the store closed and locked when conducting business therein at night, but, on the Saturday night in question, he left the inner rear door of the dry goods department open, hoping by that means to catch a certain person whom he had for some time suspected of stealing goods from that end of the store. Notwithstanding the leaving open of the inner rear door, the screen door remained closed, but not fastened. When the screen door is opened to enable one to pass in or out of the store, the recoil of the wire spring forces it to immediately close with a slight noise, and it was this noise that attracted White's attention immediately before he saw appellant in the act of leaving the store by the rear door. . . . It is . . insisted by appellant's counsel that the foregoing facts, even if regarded conclusive of appellant's guilt of stealing the shoes, furnished no evidence of a felonious breaking by him of the store. We must also dissent from this conclusion. According to the testimony of White, appellant could only have entered the store on his first visit by the rear, or alley, entrance, which he had to enter by pulling open the screen door, and which, although unfastened, was so tightly and securely closed and fitted to the frame of the door that the use of some strength and pulling force was required to open it. This being true, the act of appellant in opening the screen door and in that way entering the building constituted a breaking within the meaning of the statute, the felonious intent with which it was done being shown by appellant's stealing the shoes following his entrance. into the building. . . . The conclusion is inevitable that the manner in which appellant effected an entrance into the building in question was housebreaking." A. S. M.

one W. H. Johns called a public sale and conducted such public sale, and that the defendant W. J. Doherty was the clerk of said sale, and that said W. J. Doherty is and was cashier of the Chambers State Bank. It is further agreed that the Chambers State Bank had agreed to purchase all notes taken from purchasers at said sale that might be recommended by said W. J. Doherty. It is further agreed that said W. J. Doherty collected all money paid at said sale, and that he charged a commission for the collection thereof. It is further agreed that on the 1st day of October the defendant Charles Barcus brought a team of mules to where said sale was being conducted, and that said mules were stolen property and the property of A. C. Thompson. It is further agreed that after his arrival there the plaintiff, acting through its duly authorized agent, one Watson, attempted to purchase said mules from said Barcus, but was unable to do so; that thereafter the said Barcus obtained the consent of said Johns to have said mules put up and sold at said sale. It is further agreed that, after obtaining said consent from said Johns, said Barcus entered into an agreement with said W. J. Doherty by which said Doherty agreed to purchase any paper that might be given for the purchase price of said mules, and that he would pay a commission of $3 to said W. J. Doherty if cash was paid for said mules; that said mules were put up at auction and sold to the plaintiff for the sum of $295; that the plaintiff, acting through its manager and agent, said Watson, made a check to W. J. Doherty for said $295.

"It is further agreed that said W. J. Doherty charged $3 for his services and made a check payable to George Wright, who was in fact Barcus, and did so for the purpose of making a distribution of the moneys received at said sale for said mules. It is further stipulated and agreed that no representations as to the value, character, or own

ership of said mules was made by said W. J. Doherty or by the said Chambers State Bank to the plaintiff, its agent Watson, or to any other person, except such as is, under the law and the facts, herein set forth. It is further stipulated and agreed that neither said W. J. Doherty nor said Chambers State Bank had any notice or knowledge that said mules were not the property of said Charles Barcus, and that the owner of said property, A. C. Thompson, retook his property from the plaintiff in this action.

"It is further stipulated and agreed that said W. J. Doherty and the Chambers State Bank believed, at the time of the transaction wherein the plaintiff purchased said mules, that said mules were the property of said Charles Barcus, or George Wright, as they then believed his name to be."

The court, upon the stipulation made, found in favor of the plaintiff and against the defendant W. J. Doherty, and dismissed the action as to the Chambers State Bank.

a

We are constrained, after thorough examination of the authorities cited by the parties, to hold that the court was in error in rendering the judgment that it did as against Doherty. Doherty was acting as clerk of the sale. His duties were to keep a record of the purchasers, pass upon the notes taken as far as the bank was concerned, take such money as might be paid in, and pay it out to the parties who sold the property.

The point on which the court largely bases its judgment is in his finding that Barcus, the pretended owner, arranged with the defendant Doherty to take any. paper that might be offered for said mules, or to handle the sale of the mules for a per centum of cash that might be paid for the same under the same terms that he was conducting said sale. In the first place, there was nothing contained in the stipulation to the effect that Doherty was conducting the sale; in fact, it was not Doherty's sale in any sense of the

Auctionwarranty of title.

of any property that might be sold, or become liable therefor, under the stipulation of facts herein. Appellee has cited us to several authorities in support of its position, and it cites us to 6 C. J. 844, § 63, in support of the fact that "an auctioneer who sells property for one who has no title, and pays over to his principal the proceeds, is liable to the real owner for the conversion, even though such auctioneer acts in good faith, and without knowledge of the defect of title."

Plaintiff has proceeded upon the theory that the duties and liabilities of the clerk are the same as those of the auctioneer. The stipulation provides that the clerk shall act for Barcus in the sale of the mules the same as he had in the sale of other property; which was, to take in the money and pay it out to the parties whose property was sold. He had no knowledge, presumptively, whose property was being sold, until announced by the auctioneer. The duty of the auctioneer was to inform him whose property was sold, the amount for which it was sold; and, in passing upon the notes, he acted, not as the agent of the auctioneer, but as agent for the bank, which would purchase these if approved by defendant. We do not believe that the same rule would apply to one occupying a purely clerical position as would apply to one who was conducting the sale as auc

tioneer. The purchaser knew, or presumptively knew, at least, what the duties of the clerk consisted of when it paid the money to him, and to whom it was to be paid; plaintiff paid it for the benefit of the party who sold the property, Barcus or Wright.

It appears to us that the defendant Doherty, in the position in which he acted in receiving the money, keeping track of the sale, and passing upon the notes offered, was justified in turning the money over to the party -sale of stolen who presented the mules for sale, and ity for price especially in view

property-liabil

paid.

of the fact, as in the present instance, that the purchaser at the auction sale had been negotiating with Barcus, or Wright, for the purchase of said mules, and knew Barcus was claiming to be the owner and to have the legal title to them. Consider, for argument's sake, that the rule applied to auctioneers applies to clerks. That brings this case squarely within the rule laid down in the case of Mercer v. Leihy, 139 Mich. 447, 102 N. W. 972, and the reasoning in that case is conclusive as to the situation of the defendant in the present case. Many of the principles involved in the cases cited by plaintiff were discussed and distinguished in the Mercer Case. The principal distinguishing feature between the Mercer Case and the case at bar was that the auctioneer who was sued was selling, unknowingly, stolen property, and Mercer and Lane were bidding on them. The auc

tioneer, thinking the bystanders might consider that Mercer and Lane might be bidding on their own. horses, announced to the public: "These are not Mr. Mercer's and Lane's horses. They belong to another party." He looked around and did not see the man in the audience, and said: "Where is the man who owns these horses?" The man stepped up and said, "Here I am." That court held: "Where an auctioneer discloses the fact of agency