Demanding with menaces money actually due is not a demand with intent to steal within the Canadian statute.1

§ 352. Accusation Must Come From Person Making Threat. — In People v. Bruman,2 two of the court held that to come within the statute, the accusation must be threatened as one to come from the author of the threat and not from some third person.

§ 353.

Threat Must be as to Prosecutor's Property. - Sending a letter to A. threatening that he would burn B.'s house is not within the statutes.

§ 354.

Threatening to Take Life.

To establish the crime of threatening to take life where it appears that the object of the threat was to extort money, it must appear that the prisoner intended to execute his threat if the money was not paid.

us.

In Haynie v. State, the threatening letter was as follows:

:

"HALLVILLE, TEXAS, March 24, 1876.

"MR. FOSTER: We want $300 out of you, and we write for this purpose. We have been in Marshall watching for you for two weeks, and are posted in regard to you and yours. If you do not put us the above amount at the foot of the third telegraph post from the railroad track at Hallville (count the posts towards Marshall) by Tuesday night next, we will burn the Drovers' Home, kill you, and take your prostitute daughter away. We know you are closefisted, and all this, but you swindled the wrong emigrants when you swindled Take warning now. We want no talk about this, for we have men watching that will put your light out if you go to talking. You come to Hallville on Monday, wrap this money up carefully, and put it where we tell you Monday night; then go home and keep your mouth shut, and you are all right. Bury the money at the foot of the pole. If we told you what you done to us, you would know us; so nix is the word. We mean what we say, and if you ante, all right; if not, look out for yourself, for we will do what we say, if it takes us ten years. A tight mouth, Foster, for if you speak of this letter we will know very soon after, and then good-bye to you. We sign no name." A postal card was in these words:

"Mr. Foster, Railroad House and Drovers' Home, Marshall, Texas."

"MILLWOOD, March 27, 1876.

"Will you come or not? If not, you can look for us up Wednesday morning."

No witness saw defendant write this letter and postal card; and, to establish and fix the authorship upon him, resort was had to circumstantial evidence, and especially to proof of his handwriting. The court said: —

6

"Our statute with regard to 'threats to take human life' is sui generis. It is expressly provided in Paschal's Digest, that, in order to render a person guilty of the offense provided for in this chapter, it is necessary that the threat be seriously made.' And article 6587 declares that it is for the jury to determine, in every case of prosecution under this chapter, whether the threat was

1 R. v. Johnson, 14 U. C. Q. B. 583.

2 30 Mich. 460 (1874).

3 R. v. Jones, 2 C. & K. 338 (1847).

42 Tex. (App.) 168 (1877).

5 Pasc. Dig, art. 6385.

6 art. 6586.

seriously made, or was merely idle and with no intention of executing the same.'

"Now, under the indictment in this case, the defendant was being tried for seriously threatening to take the life of R. L. Foster. Defendant's counsel asked the court to instruct the jury that, while you may, if you do, believe that the defendant was serious in his purpose to get money by threatening and frightening, you can not convict the defendant unless you believe that it was his purpose to kill the said R. L. Foster if the said Foster failed to deposit the money as demanded.' This instruction the court refused to give. In this there was error also. Upon the question of conditional threats, the court had charged the jury correctly, and substantially in the language of the Supreme Court in the case of McFain v. State, wherein it was held that, if the condition in the threat requires something to be done, or to be left undone, that the party threatening has no right to require, it must generally be held to be tantamount, in legal effect, to an unqualified threat.' This very chargemaking the threat, as it necessarily did under the circumstances of the case, an unconditional one-it seems to us rendered the instruction asked for peculiarly appropriate.

"A party can not, it is conceived, seriously threaten to take the life of another unless he has made up his mind to kill him, and has the will and the intention to kill him, both concurring and formed in the mind at the time the threat is made. It is unreasonable and utterly inconsistent to hold that a party can be serious in saying he intended to do a thing, and yet, at the same time, that that was not the thing he intended to do.

"The defendant was either serious or he was not serious in threatening to take the life of Foster if he did not comply with his demands. If he was not serious, then, under the law, he was guilty of no offense, and the jury should have so found. If he was serious, then his intention was to kill him upon his failure to comply with his demand; and the jury should have been instructed that, unless they believed it was his intention to kill him in case he failed to deposit the money as demanded, they should acquit the defendant. This was the true criterion of the seriousness of the threats made by defendant as charged in the indictment in this case.

"The judgment of the court below is reversed and the cause remanded. "Reversed and remanded.”

1 41 Tex. 389.

PART III.

BURGLARY.

BURGLARY-WHAT NOT A "BREAKING."

CLARKE v. COMMONWEALTH.

[25 Gratt. 908.]

In the Court of Appeals of Virginia, 1874.

1. D. and H. Rent a Room Jointly of S., of which H. has a key. C. rents an adjoining room, the doors of the two rooms entering upon the same porch near each other. They frequently interchange visits. On the night of March 11, 1874, D. locks his door, takes out the key, and starts to church, on the way he meets H. who says he is going to his room, and will follow him to the church soon. H. and C. conspire to steal D.'s goods in the absence of D. on this night, and H. opens the door with his key, and they enter the room, and take and carry away the trunk of D. with its contents. This is not such a breaking as will constitute burglary in C.

2. The Breaking which will Constitute Burglary may be actual or constructive. For what will be a constructive breaking, see the opinion of MONCURE, P.

3. The Indictment Charging not only the breaking and entering, but the stealing of the trunk and its contents, of a stated value, C. though acquitted of the burglary, may be found guilty of the larceny.

The case is stated by Judge MONCURE in his opinion.

H. A. and J. S. Wise, for the prisoner.

The Attorney-General, for the Commonwealth.

MONCURE, P. This is a writ of error to a judgment of the Court of Hustings of the City of Richmond, convicting the plaintiff in error, Philip Clarke, of burglary, and sentencing him therefor to confinement in the penitentiary for the term of five years. There were two counts in the indictment, in one of which the dwelling-house is described as that of Joseph Dabney, and in the other as that of Fanny Straus; and in each of them the accused was charged with having broken and entered the said house, not only with intent to commit a larceny therein, but also with having actually committed such larceny, to wit: of one trunk and its contents of certain specific values respectively as set out, and all of the aggregate value of eighty-five dollars and eighty-five cents, of the goods and chattels of the said Joseph Dabney, in the said dwelling-house then and there being found. The accused, upon his arraignment plead not guilty to the indictment; and being put upon his trial, the jury found him guilty, and ascertained his term of confinement in the penitentiary at five years. Thereupon the accused moved the court to set aside the verdict and grant him a new trial; which motion was

overruled by the court, and judgment was pronounced against him according to the verdict. During the progress of the trial, the prisoner excepted to two decisions of the court given against him, and tendered two bills of exceptions, which were accordingly signed and sealed by the court, and made a part of the record.

The first bill of exceptions states, that on the trial of the cause it was proved, on the part of the Commonwealth, that Joseph Dabney and Edward Henderson jointly rented and occupied a room in the house of one Fannie Straus, in the City of Richmond; that each of them had and kept a key to the door of the said room; that the prisoner, Clarke, at the same time rented and occupied an adjoining room upstairs in the same house, the doors of the two rooms opening near each other on the same porch, and Dabney, Henderson and Clarke frequently interchanged visits from one room to the other; that on the night of the 11th day of March, 1874, Dabney locked his door and took his key with him, and in going to church met Henderson, who said he was going back to their room, and would join him (Dabney) at church soon; that the windows were nailed, and Dabney left in the room a trunk, which contained nearly all his clothes, and several other articles enumerated in the indictment and exhibited in court; that when he returned to his room he found the door locked and the windows nailed as he had left them, and there was no appearance of breaking of the premises in doors, windows or elsewhere, but his trunk and its contents were missing, and after search for it the next day, in the evening, he found it at a room (in another house) which was rented by Clarke that day; that Clarke disappeared from the City of Richmond, and when he was afterwards arrested, he confessed, freely and voluntarily, after but little hesitation that Henderson led him into the act; agreed with him to take Dabney's trunk; that they went to the room together and unlocked the door, and they entered and took the trunk with intent to take it away and steal it, and it was removed to a place whence it was taken to Clarke's room, the place where it was found, the said Henderson having assisted him in the removal of the trunk from the room into the yard, and put it upon the prisoner's shoulder, who carried it off. On the part of the defence it was proved that the trunk and all its contents would not bring twenty-five dollars at auction. This was all the material evidence in the case. Whereupon the prisoner moved the court to instruct the jury as follows, to wit:

"If the jury believe from the evidence that Edward Henderson was a renter in part, of the room charged to have been broken and entered, occupied by him and Joseph Dabney in common, and that the said Henderson as one of the legal tenants of that room, had one key, and Dabney another key to the same door thereof, and that he, Henderson,

voluntarily opened the door of the room, in the exercise of his right as tenant to open the door, then there was no breaking of the same; and to constitute burglary there must be a breaking as well as an entering with the intent charged in the indictment."

Which instruction the court refused to give as offered, but gave with an addition in these words: "But if the jury believe that the prisoner and Henderson agreed together that Henderson should open the door with his key, for the purpose and with the intent of stealing the property alleged to be stolen in the indictment; and that Henderson, the prisoner, being present and consenting, did so open the door in the night time; and that in pursuance of said agreement they entered the room and stole the said property, then the person is guilty of burglary." To which ruling of the court the prisoner excepted.

The second bill of exceptions was to the decision of the court overruling the motion of the prisoner to set aside the verdict of the jury as contrary to the law and evidence, and giant him a new trial.

To the judgment pronounced against the prisoner as aforesaid, he applied to a judge of this court for a writ of error; which was accordingly awarded.

Burglary is defined to be, a breaking and entering of the mansionhouse of another in the night with intent to commit some felony within the same, whether such felonious intent be executed or not.1

Each of the facts constituting this definition must be proved by the prosecutor, in order to sustain the charge of burglary.

In this case there was no doubt or difficulty in regard to any of these facts save one, and that was in regard to the breaking; whether there was a sufficient breaking to constitute burglary within the meaning or definition of that offense. That is the only question arising in this case, and that question is presented by each of the two bills of exceptions taken in the case.

There are two kinds of breaking within the meaning of the said definition: one an actual breaking, and the other a breaking by construction of law.

It is not pretended that there was an actual breaking in this case; and therefore it is needless to inquire what will and what will not constitute on actual breaking in the meaning of the law. If there was any breaking within such meaning in this case, it was only a breaking by construction of law.

Was there a breaking in this case by construction of law?

Such a breaking is not by violence, which, more or less, is supposed to be embraced in every actual breaking; but when an entrance is obtained by threats, fraud and conspiracy." 2

11 Russ. on Cr. 785.

2 1 Russ. on Cr. 792.