The questions put to Dacy related directly to the subject-matter of the arrest to which he had testified, and to the reasons for the arrest. If the arrest was dishonestly planned, it would certainly have some bearing to show what the plot was; and this could hardly fail, if disclosed, to furnish means of clearing up the circumstances which were ambiguous.

If honestly made, it would be equally pertinent. The idea that it is either commendable or justifiable, in the administration of criminal law, to attempt to suppress facts which bear favorably on the accused, is a dangerous one. Any prisoner on trial ought to have a full opportunity to bring out all the surroundings of the transaction with which he is claimed to be involved. It seems to us that it was extremely important, in this case, to know how and why this arrest was brought about.

The subsequent course of proof made this appear more evidently, because there was much reason to claim some sort of complicity between Hardy and some of the police force, and whatever it may have meant, the prisoner had a right to show it. But in Dacy's case the questions put were in the direct line of proper cross-examination upon the matters to which he had testified in chief, and we can see no reason for their exclusion on any ground.

We have referred to this point because it had a decided bearing on other things arising in the cause, and the ruling probably influenced the result.

We think, as the case stood, the jury should have been directed to acquit the prisoner. As already suggested, the only evidence of burglary by any one was in the fact that a window was opened at some time unknown; that a clock was found stopped at a few minutes past eight, and an unlighted lamp in a place where it was said not to belong. It would require a lively imagination to discover what object burglars could have in stopping a clock, although such devices may sometimes be resorted to for creating false appearances by those whose ingenuity is directed towards throwing suspicion on others. Actual criminals seldom resort to such foolish expedients on their own account. The other facts were so ambiguous that the prisoner was entitled to the benefit of all ambiguities. His possession of the satchel alone, even if a guilty one, had no tendency of itself to show him guilty of burglary.

The prosecution had in court a witness named on the information, convicted of the charge, who was in the custody of the law, and who must necessarily have known the facts. Their suppression of this positive testimony, which they were on every consideration of justice bound to produce, entitled the prisoner to every inference that could be drawn from it. There was no evidence that the prisoner had been seen near the house, and no other proof to connect him with any offense in it, and,

We can not assent to this view of the question. The door in this case 'was unlocked for, escape from the house, not for entrance or in forwarding a felonious design. There was no felonious breaking in this view. We have been referred to Jebb's Criminal Cases,1 as sustaining his views. That case, however, was where the indictment had a count for breaking out of the house which was expressly made burglary by statute.2 Judgment will be reversed and the cause remanded.

BURGLARY —"BREAKING OUT."

BROWN v. STATE.

[55 Ala. 123; 28 Am. Rep. 692.]

In the Supreme Court of Alabama, 1876.

One who Enters a Store Through an Open door, secretes himself within until the door is locked, then commits a larceny, and escapes by opening or breaking out of a window, does not "break into and enter" a store and can not be convicted of burglary under the statute.

CONVICTION of burglary. The opinion states the facts.

S. J. Cumming, for the defendant.

4

Jno. W. A. Sanford, Attorney-General, for the State, cited Donohoo v. State,3 Walker v. State, 2 Bishop's Criminal Law,5 1 Russell on Crimes, 1 Leading Criminal Cases.7

STONE, J. The Revised Code declares that " any person who either in the night or day time, with intent to steal or to commit a felony, breaks into and enters a dwelling-house, or any building within the curtilage of a dwelling-house, though not forming a part thereof; or into any shop, store or warehouse or other building in which any goods, merchandise or other valuable thing is kept for use, sale or deposit, is guilty of burglary," etc. It will be observed that this offense naturally divides itself into three constituent elements: the character of the house, the breaking into it, and the intent with which he entered the house. On the first and third of these constituents there seems to have been no dispute in this case. The contest was over the second. The undisputed evidence is that the front door of the store, in which the

offense was alleged to have been committed, was open; that the defendant entered the house through the said open door, secreted himself in the store, and when the store was closed and locked the defendant was locked in. Afterward the defendant being in the store, committed the larceny spoken of, and opening or breaking a window, escaped with the money stolen. The question for our decision is, does this amount to a breaking into the store within the statute?

The cases of Donohoo v. State,1 and Walker v. State, 2 are relied on in support of the charge in this case. In the case of Walker, as in this case, there was a breaking out, but the prisoner was not adjudged guilty on that account. In each of those cases the entry was by way of the chimney, which is uniformly held to be a sufficient breaking and entering to constitute that element of the crime of burglary. On that principle were the defendants adjudged guilty in the two cases cited. There must be an actual breaking or a constructive breaking, by fraud, threats or conspiracy.3 In England they have a statute which makes the escaping from a house, by breaking, etc., after committing a felony in the house, burglary in the offender. We have no such statute here.4

Under the rules above declared the Circuit Court erred in the explanatory charge given.

Let the prisoner remain in custody until

Reversed and remanded. discharged by due course of law.

Reversed and remanded.

BURGLARY - - ENTERING NECESSARY.

STATE v. MCCALL.

[4 Ala. 643; 39 Am. Dec. 314.]

In the Supreme Court of Alabama, January, 1843.

1. Burglary Consists in Breaking into and entering a dwelling-house in the night time with intent to commit a felony.

2. Any Entry by Means of the Hand, or foot, or even by an instrument with which it is intended to commit a felony, is sufficient to constitute burglary; but simply breaking the blinds, and making no entry beyond the sash windows, is not.

Defendant was indicted for burglary and found guilty.

After the

close of the examination of the witnesses and the arguments of counsel,

1 36 Ala. 281.

4 See Com. v. Strupney, 105 Mass. 588; s.

2 52 Id. 376.

3 3 Greenl. Ev., sec. 76.

c. 7 Am. Rep. 556; Ros. Cr. Ev. 347.

defendant's counsel asked the court to permit the prisoner to make a statement to the jury, which was refused. The further facts appear in

the opinion.

M. W. Lindsay, Attorney-General, for the State.
Rollston, for the defendant.

By court, COLLIER, C. J. The crime of burglary may be defined to be, the breaking and entering a dwelling-house in the night time with intent to commit a felony. For the purposes of this offense, it is said the term dwelling-house comprehends all buildings within the curtilage or inclosure, etc. The offense consists then in violating the common security of the dwelling-house in the night time, for the purpose of committing a felony. But what is a violation is not in all cases entirely clear; the authorities discovering a great want of harmony. It is not our purpose now to notice the many adjudications with which the books abound; but only to consider a few of those most pertinent to the case in hand, and then state the principle which must control our decision. In Rex v. Bailey,3 it appeared that a sash window belonging to a dwelling-house was fastened in the usual way, by a latch, from the bottom of the upper sash to the top of the lower one; and that there were inside shutters which were fastened. One of the prisoners broke a pane of glass in the upper sash of the window and introduced his hand within, with the intention to undo the latch by which the window was fastened. While he was cutting a hole in the shutter with a center bit and before he had undone the latch of the window, he was seized. All the judges were of opinion that the introduction of the hand between the window and the shutter to undo the window latch, was a sufficient entry to constitute a burglary.

In Rex v. Rust and Ford,4 the facts were these: The glass sash window was left closed down, but was thrown up by the prisoners; the inside shutters were fastened, and there was a space of about three inches between the sash and the shutters, and the shutters themselves were about an inch thick. It appeared that after the sash was thrown up a crowbar had been introduced to force the shutters and had been not only within the sash, but had reached to the inside of the shutters. The judges were of opinion that this was not a case of burglary, as it did not appear whether any part of the hand was within the window, although the aperture was large enough to admit it.

Any, the least entry, is sufficient by means of the hand or foot, or even by an instrument with which it is intended to commit a felony.5

11 Hale's P. C. 358, 559; Hawk. P. C., ch. 38, sec. 12; East P. C. 495; Id. 493, 501, 508.

2 Com. v. Stephenson, 8 Pick. 354.

3 Russ. & R. 341.

4 1 Moody, 183.

5 East's P. C. 490; Fost. 107; 1 Hawk. C., ch. 38, sec. 7; 1 Hale's P. C. 555.

But the entry it is said must appear to have been made with the immediate intent to commit a felony, as distinguished from the previous intent to procure admission to the dwelling-house. Where it appeared that a center-bit had penetrated through the door, from chips found in the inside of the house, yet as the instrument had been introduced for the purpose of breaking, and not for the purpose of taking the property or committing any other felony, it was held the entry was incomplete.1 The citations from the Crown Cases, it must be admitted, lend their support to the charge of the circuit judge to the jury. The only difference being that there was a breach and entry of the sash, while here the breach and entry was of the blinds, which were the outer protection. This it is conceived, can not require the application of a different principle. It can not be that the common security of the dwelling-house is violated by breaking one of the shutters of a door or window which has several. True, it weakens the security which the mansion is supposed to afford and renders the breach more easy; but as additional force will be necessary before an entry can be effected, there can under such circumstances, be no burglary committed.

Suppose the shutter of a door made by placing planks upon each other until it is two or three double, if the thickness of one of the plank be removed by one intending to commit a burglary, and an entry thus far made, can it be said that the offense was completed? What, in point of principle is the difference between such a case and one where there are several shutters, an inch or two apart from each other. In neither case can such an entry be made as will enable the aggressor to commit a felony. In such cases the entry may be said to be made with the intent rather to procure admission into the dwelling-house than to commit a felony; which we have seen is an indispensable constituent to the crime of burglary.

To constitute the burglary an entry must be made into the house with the hand, foot or an instrument with which it is intended to commit a felony. In the present case there was nothing but a breach of the blinds, and no entry beyond the sash window. The threshold of the window had not been passed so as to have enabled the defendant to consummate a felonious intention; and according to the principle we have laid down, the charge to the jury was erroneous.

The constitution guarantees to every one charged with the commission of a crime the right to be heard by himself and counsel, but it does not permit the accused to make a statement of facts to the jury unless it be authorized by the evidence adduced. Here the reasonable inference perhaps is that the statement proposed to be made

1 1 Leach. 452; King v. Steel, East's P. C. 491.