and other ordinary utensils of household, should be considered in no other light than as mere moveables, partaking of the nature of those utensils, and adapted to the same use. Fost. 108-9.

There may also be a breaking in law, where, in consequence of violence commenced or threatened, in order to obtain entrance, the owner, either from apprehension of the force, or with a view more effectually to repel it, opens the door, through which the robbers enter. (1 East. Cr. L. 436.) But if the owner only throw out his money to those who assault his house, it is not burglary; though if the money were taken up in the owner's presence, it would be robbery. 1 East. Cr. L. 486.

In the case of Joshua Cornwall, who was indicted with another person for burglary, it appeared, that he was a servant in the house where the robbery was committed, and in the night time opened the street door, and let in the other prisoner, and shewed him the sideboard, from whence the other prisoner took the plate; and the defendant opened the door and let him out; but the defendant did not go out with him, but went to bed. Upon the trial it was doubted whether this was burglary in the servant, he not going out with the other. But afterwards, at a meeting of all the judges at Sergeants Inn, they unanimously agreed, that it was burglary in both, and not to be distinguished from the case where one watches at the street end, while the other goes in and commits the burglary, which hath often been ruled to be burglary in both and upon report of this opinion the defendant was executed. 2 Str. 881.

AND ENTERING.... It is deemed an entry when the thief breaketh the house, and his body, or any part thereof, as his foot, or his arm, is within any part of the house; or when he putteth a gun into a window which he hath broken, or into a hole of the house which he hath made, of intent to murder or kill, this is an entry and breaking of the house; but if he doth barely break the house, without any such entry at all, this is no burglary, for it must be broken and entered. 3 Inst. 64.

Thieves came by night to rob a house; the owner went out and struck one of them; another made a pass with a sword at persons he saw in the entry; and in so doing his hand was over the threshold; 4 this was adjudged burglary by great advice. 1 East. Cr. L. 490.

So, putting a hook to steal, or a pistol to kill, within the door oi window, though the hand be not in, is an entry.

Ibid.

To discharge a loaded gun into a house is considered an entry, (Haw. B. 1. c. 38. s. 7.); though lord Hale doubted on this point. (See ì Hale 555.) But the modern opinions seem to be, that it is an entry. 1 East, Cr, L. 490.

Any the least degree of entry, with any part of the body, or with an instrument held in the hand, is sufficient; as to step over the threshold, to pet a hand or a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries. 4 Bl. Com. 227.

But where thieves had bored a hole through the door with a centrebit, and part of the chips were found in the inside of the house, by which it was apparent that the end of the centre-bit had penetrated into the house; yet, as the instrument had not been introduced for the

purpose of taking the property or committing any other felony, the entry was ruled incomplete. 1 East. Cr. L. 490–1.

It is universally agreed, that there must be both a breaking, either in fact or by implication, and also an entry, in order to complete the burglary. 4 El. Com. 227.

In the case of George Gibbons, at the Old Bailey, in June 1752; Gibbons was indicted for burglary in the dwelling house of John Allen. It appeared in evidence, that the prisoner in the night time cut a hole in the window shutter of the prosecutor's shop, which was part of his dwelling house; and putting his hand through the hole, took out watches and other things which hung in the shop within his reach; but no entry was proved, otherwise than by putting his hand through the hole. This was held to be burglary, and the prisoner was convicted. Fost. 107-8.

If divers come in the night to do a burglary, and one of them break and enter, the rest of them standing to watch, at a distance, it is burglary in all. 3 Inst. 64.

THE MANSION-HOUSE....This includes also churches, and the walls and gates of a walled town; and all out buildings, as barns, stables, dairy houses, adjoining to a house, are looked upon as part thereof, and consequently burglary may be committed in them. But if they be removed at any distance from the house, it seems that it hath not been usual of late to proceed against offences therein as burglaries. Haw. B. 1. c. 38. s. 10.

And lord Hale says more explicitly, the mansion-house doth not only include the dwelling house, but also the out houses that are parcel thereof, as barn, stable, cow-house, dairy-house, if they are parcel of the messuage, though they are not under the same roof, or joining contiguous to it; and so he says it was agreed by all the judges; but if they be no parcel of the messuage, as if a man take a lease of a dwelling house from one, and of a barn, &c. from another; or if it be far remote from the dwelling house, and not so near to it, as to be reasonably esteemed parcel thereof, as if it stand a bow shot off from the house, and not within or near the curtilage of the chief house; then the breaking is not burglary, for it is not a mansion-house, nor any part thereof. 1 Hale 558-9.

Any out-house within the curtilage, or some common fence, as the mansion itself, must be considered as parcel of the mansion. But no distant barn, warehouse, or the like, is under the same privilege; nor indeed any out-house, however near, if it be not parcel of the messuage, and so found to be. 1 East. Cr. L. 493.

Thus where the prisoner was indicted for burglary, in the mansionhouse; and the jury found specially that the house broken was an out-house, separated from the dwelling-house by an open passage, eight feet wide, but not connected with the dwelling house by any fence inclosing both; the jury not having further found that it was parcel of the dwelling house, it was held not to be burglary. Ibid.

But if the out houses be adjoining to the dwelling house, and occupied as parcel thereof, though there be no common inclosure or curtilage, they may still be considered as parts of the mansion. Ibid.

The situation of the buildings, not the title by which they are held, seems to be the essential circumstances. Sec 1 East. Cr, L. 498-1.

To break, and enter a shop, not parcel of the mansion-house, in which the shopkeeper never lodges, but only works or trades there in the day time, is not burglary, but only larceny; but if he or his servant usually, or often, lodge in the shop at night, it is then a mansionhouse in which burglary may be committed. 1 Hale 557-8.

Burglary cannot be committed in a booth or tent, any more than a covered waggon. 4 Bl. Com. 226.

Generally speaking, it seems that a mere casual use of a tenement as a lodging, or only on some particular occasions, will not constitute it a dwelling house for this purpose. In Brown's case all the judges agreed, that the fact of a servant having slept in a barn the night it was broken open, and for several nights before, being put there for the purpose of watching against thieves, made no sort of difference in the question, whether burglary or not. So, a porter lying in a warehouse to watch goods, which is only for a particular purpose, does not make it a dwelling house: but if all communication with the dwelling-house, of which it is a part, be not excluded, it may still be a part of the house in which burglary may be committed. 1 East. Cr. L. 497.

A house wherein a man dwells but for part of a year, or a chamber in one of the inns of court, or of a college, wherein any person usually lodges, may be called his dwelling house, whether any person were actually therein or not, at the very time of the offence. Yet in all cases the owner must have quitted the house animo revertendi (with an intention of returning) in order to have it still considered as his mansion, where neither he nor any part of his family were in it at the time of the breaking and entering. 1 East, Cr. L. 496.

Thus, a person possessed of a house in the city of W. wherein he dwelt, took a journey into C. with intent to return, and sent his wife and family out of town, leaving the key with a friend to look after the house: after he had been gone a month, no person being in the house, it was broke open in the night and robbed of divers goods. He returned a month after with his family, and inhabited there. Adjudged burglary. Ibid.

John and Miles Nutbrown were indicted for burglary in the dwelling house of one Mr. Fackney, at Hackney, and stealing divers goods. The prosecutor made use of it as a country house in the summer, his chicf residence being in London. About the latter end of the summer preceding the offence, he removed with his whole family to his house in the city, and brought away a considerable part of his goods. And in the November following, the house at Hackney was broken open, and in part rifled; upon which he removed the remainder of his household furniture, except a clock and a few old bedsteads, and some lumber of little value, leaving no bed or kitchen furniture, or any thing else for the accommodation of a family. Mr. Fackney being asked, whether at the time he so disfurnished his house he had any intention of returning to reside there, declared that he had not come to any settled resolution, whether to return or not; but was rather inclined totally to quit the house, and to let it for the remainder of his term.. The fact of the burglary happened in the January following. But the court were of opinion, that the prosecutor having left the house, and disfurnished it in the manner before mentioned, without any settled resolution of returning, but rather inclining to the contrary, it could

not be deemed his dwelling house, at the time the fact was committed: and accordingly the prisoners were directed to be acquitted of the burglary; but they were found guilty of felony in stealing the clock, and some other small matters. Fost. 75, 77. 1 East. Cr. L. 496-7.

It is stated generally by Dawkins (B. 1. c. 58, sect. 11.) that burglary may be committed in a house which one has hired to live in, and brought part of his goods into, but has not yet lodged in. But this point has often since been ruled otherwise. See 1 East. Cr. L. 497-8.

Thus in the case of Lyens and Miller, who were indicted for burglary, in the dwelling house of ES; it appeared that the house was left in the care of a carpenter, who was to put it in repair; that the prosecutor had never inhabited it, nor had servants or furniture in it; that the former occupier had removed out of it about a fortnight; and, at the time of the offence committed, it was uninhabited. After conviction, it was held on a reference, to the judges, that this was no mansion-house, never having been inhabited. They also held that it could not be burglary, on that indictment, which (charging the intent to steal) must be to steal the goods then and there being; and where nothing was in the house, nothing could be stolen. Also it seemed to be the sense of the judges, that although some goods might have been put in the house, yet if neither the party nor any of his family had inhabited it, it would not be a mansion-house, in which burglary could be committed. 1 East. Cr. L. 497-8.

So, where the former tenant of a house had quitted it, and the incoming tenant had put in all his furniture, and had been frequently there in the day time; but had never slept in the house, nor any of his family. Held that burglary could not be committed therein.

1 East. Cr. L. 498.

On the authority of Lyons and Miller's case, above, it was held, that where a house was a new one, and finished all but the painting and glazing; that a workman, who was constantly employed by the owner, slept in it for the purpose of protection; but no part of the owner's domestic family had yet taken possession of it; it could not be the mansion-house of the prosecutor. Ibid.

So, where the prosecutor had lately taken a house, and on the night of the offence, and for six nights before, had procured two hair-dressers, none of his own family, to sleep there, for the purpose of taking care of his goods and merchandise therein deposited; but he himself had never slept there, nor any of his family. Held that the prisoner could not be convicted of burglary. Ibid.

On the same principles it was held, that where the owner of a house put a servant into it, to sleep there at nights till he could get a tenant, in order to protect some furniture there which he had purchased of the last tenant, which servant had so slept there for three weeks before; but the owner never intended to inhabit it himself; a conviction for stealing the goods in the dwelling house of such owner was wrong, as to the capital part of the charge. 1 East. Cr. L. 499.

3. AS TO THE OWNER....It is necessary to ascertain to whom the mansion belongs, and to state that with accuracy in the indictment. As a general rule, it may be laid down, that where the legal title to the whole mansion remains in the same person, there, if he inhabit

it, either by himself, his family, or servants, or even by his guests, the indictment must lay the offence to be committed against his man. sion. And so it is, though he let out apartments to inmates, who have a separate interest therein, if they have the same outer door or entrance into the mansion in common with himself. But if distinct families be in the exclusive occupation of the house, and have their ordinary residence or domicile there, without any interference on the part of the proper owner, or if they be only in possession of parts of the house as inmates to the owner, and have a distinct and separate entrance; then the offence of breaking, &c. their separate apartments must be laid to be done against the mansion-house of such occupiers respectively. 1 East. Cr. L. 499, 500. See cases illustrating the above rule, East. Cr. L. from p. 500 to 508.

The house of a corporation, inhabited in separate apartments by the officers of the body corporate, is the mansion-house of the corporation, and not of the respective officers. 4 Bl. Com, 225.

There may be such a severance by lease of part of a mansion, as that it shall no longer be the subject of burglary. As if a person hire a shop, parcel of another man's house, to work or trade in, but never lie there, it is no dwelling house, nor can burglary be committed therein; it is not the mansion of him who occupies the other part, nor is it the dwelling house of the lessee, who never lies there. 4 Bl. Com 225. 1 East, Cr. L. 507.

IN THE NIGHT....The time must be by night, and not by day; for in the day time there is no burglary. 4 Bl. Com 224.

But the breaking and entry need not both be in the same night; for if thieves break a hole in the house one night, to the intent to enter another night, and commit felony, and they accordingly do so through the hole they so made the night before, this seems to be burglary; for the breaking and entry were both in the night. 1 East. Cr. L. 508. 4 Bl. Com, 226.

As to what shall be accounted night, lord Coke says, as long as the day continues, whereby a man's countenance may be discerned, it is called day; and when darkness comes and day light is past, so as by the light of day you cannot discern the countenance of a man, then it is called night. And this doth aggravate the offence; since the night is the time when man is at rest, and when beasts run about seeking their prey. Hence in ancient records, the twylight was signified, when it was said, inter canem et lupum (between the dog and the wolf); for when the night begins the dog sleeps, and the wolf seeketh his prey. 3 Inst 63.

Anciently the day was accounted to begin only at sun-rising, and to end immediately upon sun-set; but the better opinion seems to be, that if there be day-light, or crepusculum enough, begun or left, to discern a man's face withal, it is no burglary. 4 Bl. Com. 224. 1 East. Cr. L. 509.

But this does not extend to moon light; for then many midnight burglaries would go unpunished: and besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night; when all creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and rendered his castle defenceless. 4 Bl. Com. 224.