taking of the personal property of another, without his consent, and appropriating it to his own use with design to deprive the owner of it. Larceny might be predicated of such a transaction, but if it appeared the act was done openly, in the day time, in the sight of the owner, a jury would not be called upon to convict; and the court might properly so advise them and direct an acquittal. In the case supposed the act would be a plain trespass, and the circumstances proved would be consistent with a design on the part of the accused to commit a trespass, and there would be an absence of circumstances usually accompanying a felonious taking. In the case before us the accused was guilty of a rude and aggravated trespass. He persisted in entering the cellar to draw cider although forbidden to do so by the prosecutor's daughter. He offered to pay for it if she would furnish it. He had procured cider at this house before and he was partially intoxicated. But these circumstances were no justification of his act; the daughter had a right to refuse to give him cider and his offer to pay for it gave him no right to take it by force; and his intoxication, while it may to some extent account for his conduct, did not mitigate his offense or excuse his crime, if one was committed. But there was an absence of the circumstances which ordinarily attend the commission of larceny and which distinguish it from a mere trespass. There was neither fraud, stratagem or stealth. The value of the cider which he intended to take was trivial and the whole transaction was open, in the day time, and in the presence or within the observation and knowledge of the prosecutor's daughter. The People gave in evidence the declaration of the accused made a short time after the transaction, on the occasion of the settlement of the civil damages, in answer to an inquiry, what his object was in so conducting himself at the house, that he was "rum crazy; " and this was very likely the truth. There was not only an absence of the usual indicia of a felonious taking, but all the circumstances proved are consistent with the view that the transaction was a trespass merely. To find this transaction a larceny it is necessary to override the ordinary presumption of innocence and to reject a construction of the prisoner's conduct, which accounts for all the circumstances proved without imputing crime, and to impute a criminal intention, in the absence of the ear-marks which ordinarily attend and characterize it. The accused was convicted of burglary and larceny and was sentenced to two years in the State prison. There was not we think sufficient evidence to warrant the conviction, in that it did not justify an inference that the accused acted with a felonious intent. We can not sustain the conviction without confounding the distinction between criminal acts and such as, however reprehensible, involve only a violation of private right, and injuries for which there is a remedy only by civil action. The refusal of the court to direct an acquittal was error for which the conviction should be reversed. 1. Evidence Held Insufficient to convict of burglary. 2. Possession of a Satchel Containing Stolen Property, held, to have no tendency, in itself, to show one guilty of burglary. Exceptions certified before sentence from the Recorder's Court of the city of Detroit. Attorney-General Otto Kirchner, for the People. CAMPBELL, C. J. Defendant was convicted of burglary in the alleged nocturnal breaking and entering of the house of one Charles L. Stevens, in Detroit, and stealing a quantity of silver and other small articles therefrom. The only evidence connecting defendant with the offense was his arrest with a satchel containing the articles. The only evidence of the burglary was that the house, which was temporarily unoccupied, except by a brother of the owner sleeping in it, was entered through a window in the front; that a lamp which belonged in the kitchen was found unlighted in the front hall, and that a clock had stopped at five minutes passed eight and that its door had been opened and it was not run down. This case was before us at the last October term, and some of the questions now before us were somewhat considered. It seems to us that some things which were then passed upon do not appear to have received full consideration on the second trial. It appears from the evidence for the prosecution, that on the evening of the arrest, at a late hour, one O'Neil saw prisoner and two men named White and Hardy walking up Jefferson Avenue, and prisoner was carrying a satchel. This was near Third Street. He at once walked up Jefferson Avenue to Cass Street, three blocks, to notify a policeman, under all these circumstances, a conviction would be so purely guess work as not to be maintainable. The prisoner's statement, if believed, would have shown him to have been the victim of a scheme of Hardy and some police agent, and the testimony to show such a scheme was practically shut out. It would be unjust to these parties to hold that their guilt appeared from this record. But there was quite as strong circumstantial evidence that some one had conspired against Gordon, as of his own guilt, and we do not think him lawfully convicted. It must be certified that the conviction was erroneous, and that the respondent should be discharged and the prosecution discontinued. The other justices concurred. NOTES. § 355. Burglary - Breaking Necessary. - To constitute burglary, breaking is necessary.1 § 356. - Entry Through Open Window. - An entry through an open window is not burglary.2 § 357. Burglary -- Breaking-Raising Window Partly Open. -- Lifting an open window is not "breaking."— In Commonwealth v. Strupney,3 a window was left open not quite an inch, and a person with intent to steal got into the house by raising the sash higher. This was held not a "breaking." In Regina v. Smith, the breaking was by pushing up, or raising the lower sash of the window, which was proved to have been at about eight or nine o'clock in the morning, in a close state and shut quite down, but to have been also seen about twelve o'clock at noon of the same day in an open state, or raised about a couple of inches, with the prisoner very near it; but yet only so open and raised as that there was not room enough for a person to enter the house through that opening, and commit the larceny. On the evidence it was clear, that the prisoner immediately afterwards threw the sash quite up, and then having thus removed the obstruction to his entrance, entered through the enlarged aperture thus made, and committed the felony; but the jury declared their opinion to be, that the prisoner did not open the window all the way, but only raised the sash the second time. The question for the opinion of the judges was, whether the prisoner was properly convicted of the house-breakiug, or whether he should have been convicted of larceny only? 1 Stone v. State, 63 Ala. 115 (1879); Clark v. Com., 25 Gratt. 908 (1874). 2 Green v. State, 68 Ala. 539 (1881); Pines v. State, 50 Ala. 123 (1873); Ray v. State, 66 Ala. 281 (1880); Williams v. State, 52 Ga. 580 (1874). 8 105 Mass. 588 (1870). would be guilty of a burglary? I think not, and I am of opinion that this is not a burglary. § 369. Entry Must be at Night. And the entering must be at night.1 Entering a dwelling-house in the day time through an open window with intent to commit a crime is not burglary in the second degree under the New York statute.2 In People v. Griffin,' the breaking and entering took place between six and seven in the evening of August 31st, at which time it was light enough to discern a man's features across the street. This was held not burglary. Said the court: "As the sun at that date did not set till about half-past six o'clock, it does not appear that it was proved by the prosecution that the offense was committed at the night time. Besides the presence of sufficient daylight to distinguish a man's features has long been adopted as a criterion to determine whether or not the act was done in the night time within the meaning of the law applicable to the crime of burglary." § 370. House Must be a Dwelling-House. -And the house must be a "dwelling-house." Therefore some one must reside there. A house which the owner has not taken possession of except by depositing some of his goods there is not a "dwelling-house." Breaking and entering a shutter house projecting from the house into the street is not a burglary. A pantry not within the same roof is not a “dwelling-house."8 Nor is a house under repair but not inhabited. Nor a house which has not been slept in for three months.10 Therefore to enter a yard with intent to steal is not burglary." Nor to break and enter a store house 12 not parcel of the dwelling.13 In R. v. Higgs, adjoining the prosecutor's house was a kiln, one end of which was supported by the end wall of the dwelling-house, and adjoining the kiln was a dairy, one end of which was supported by the end wall of the kiln. There was no internal communication between the dwelling-house or the dairy and the roofs were of different length. It was held that the dairy was not a part of the dwelling-house. In R. v. Wilson, 15 the prisoner was tried on an indictment for a burglary in the dwelling-house of George Hinchcliffe, at Birmingham. The prisoner was convicted: but the case was reserved for the opinion of the twelve judges, upon the question whether the place broken into could be considered as the dwelling-house of George Hinchcliffe. George Hinchcliffe was the Governor of the work-house at Birmingham, appointed by the guardians and overseers of the 1 Davis v. State, 3 Cold. 78 (1866); Waters v. State, 53 Ga. 567. 2 People v. Arnold, 6 Park. 638 (1866). 3 19 Cal. 578 (1862). 4 Mill's Case, 3 City H. Rec. 192 (1818); R v. Eggington, 2 B. & P. 508 (1801); State v. Potts, 75 N. C. 129. A door which only forms part of the outward fence of the curtilage and opens into no building, but into the yard only, is not such a part of the dwelling-house as that the breaking thereof will constitute burglary. R. v. Bennett, R. & R. 288 (1815). And see R. v. Davis, R. & R. 321 (1817). Fuller v. State, 48 Ala. 372 (1872). 6 R. v. Harris, 2 Leach, 808 (1795), R. v. Thompson, 2 Leach,873 (1796). 1 R. v. Paine, 7 C. & P. 135 (1834). 8 R. v. Somerville, 1 Lewin, 113 (1834). 10 R. v. Hamilton, 1 Lewin, 77 (1829). 13 Hollister v. Com. 60 Pa. St. 103 (1869); poor of one of the parishes, in whom certain funds are vested by act of Parliament for the benefit of the poor. The work-house consists of a large building, in a court yard, surrounded with a wall; the entrance to the court is by a porter's gate; the building is divided into two wings or departments, the one being occupied by the poor people, the other by the governor and his family; and the part which the governor occupies is entirely detached from that which is occupied by the poor, except that their victuals are dressed in the same kitchen which he uses for his family; and he has a separate door to that part of the building which he occupies. The whole of the building, which is called the governor's house, consists of two parlors and a sitting-room below, three bed chambers and three large store-rooms above, and four attics. One of the parlors below, which is betwixt the two other rooms on the same floor, is appropriated to the business of the trust, and is called the office or clerk's room, of which the clerk keeps one key, the governor keeping another, to secure the effects in case of fire, and his servant cleans and takes care of this room; and those on each side are entirely in his occupation. The prisoner, probably with others had gotten over the outward wall, and thrown up the sash of this parlor or office window, and with a center bit had cut two round holes in the window shutter, through, which, by putting in his band and arm, he had unclasped and let down the cross-bar on the inside; then entering the room, he had broken open the chest in which the trust property was kept, and stolen notes and money to the amount of between two and three hundred pounds. The gov ernor held his appointment under a contract with the guardians and overseers of the poor, for seven years, and was paid by a salary, and by the occupation of the house, by himself and family during that term; the guardians and overseers reserving to themselves the use of this room as an office, and the use of the three store-rooms as a deposit for the clothes and other effects of the poor of the work-house. The governor is assessed for this house with the exception of the office, store-rooms and kitchen. At a meeting of all the judges, on the first day of Trinity term, 1806, the majority of them (MANSFIELD, C. J., and HEATH and GROSE, JJ., seeming to dissent) were of opinion that this was not the dwelling-house of the governor; and therefore that the prisoner was improperly convicted of the burglary, but was subject to be convicted of the larceny. The prisoner was, therefore, to be recommended to the Crown for a pardon, on condition of being transported for seven years. In R. v. Martin and Taylor,1 the prisoners were indicted for burglary. It appeared from the evidence that the prisoners and others connected with them, had broken open the house in the night and stolen drapery and hosiery goods to the amount of considerably more than two hundred pounds. But an objection was taken that the shop from whence the goods were taken, was not the dwelling-house of the prosecutor; and though the objection appeared to the learned judge to have weight, he thought it proper in a case attended with circumstances of considerable aggravation to overrule it. The case being left to the jury, they found the prisoners guilty, and the sentence of death was passed upon them; but the point was saved for the consideration of the judges. The house was to all intents and purposes a complete dwelling-house, if it could under the circumstances be considered as inhabited, upon which question the point arose. The house stood in a street in Wellingborough, in the range of 1 R. & R. 108 (1806). |