§ 475. Definition.-Burglary is the breaking and entering of the dwelling-house of another in the nighttime with intent to commit a felony therein. Possession of burglar's tools is also indictable under some statutes.1 § 476. Essentials.-To constitute burglary, at common law, the following elements are essential: (1) There must be a breaking of the house. (2) There must be an entry of the house. (3) The house must be the dwelling-house of another. (4) The breaking and entry must be in the nighttime. (5) The breaking and entry must be done with. intent to commit a felony inside the house. § 477. The breaking.-The term breaking, in the definition of burglary, has a technical meaning. It is not essential that any part of the house be actually broken. Merely opening a closed door, or raising a closed window, is sufficient. It is not essential that the door or window be even fastened. Thus, a refusal by the trial court to charge the 1 State v. Boliski, 156 Wis. 78, 145 N. W. 368, 50 L. R. A. (N. S.) 825n. State v. Dotson, 97 Wash. 607, 166 Pac. 769; Black v. Commonwealth, 171 Ky. 280, 188 S. W. 362. 2 Ferguson v. State, 52 Nebr. 432, 72 N. W. 590, 66 Am. St. 512; Commonwealth v. Mackey, 171 Ky. 473, 188 S. W. 676. See generally on breaking, State v. Vierck, 23 S. jury that if the window was not fastened on the night in question the entry was not burglarious, was held on appeal not erroneous. In this case the court said: "There must be a breaking, removing, or putting aside of something material, which constitutes a part of the dwelling-house, and is relied on as a security against intrusion. Leaving a door or window open shows such a negligence and want of proper care, as to forfeit all claim to the peculiar protection extended to dwelling-houses. But if the door or window be shut, it is not necessary to resort to locks, bolts, or nails, because a latch to the door, and the weight of the window, may well be relied on as a sufficient security." Digging under the wall of an unfloored building, or breaking a mosquito netting fastened over an open window, or opening an area gate by means of a skeleton key and thereby effecting an entrance to the house through the kitchen door, or rolling back the closed door of a freight house, or pushing open an unfastened transom,8 is sufficient breaking. Burglary can be committed even where the entry is made through an open chimney. This is owing to the fact that the house is closed in such case as much as the nature of the thing will permit. It is not burglary, however, where the entry is made through an opening already in the wall or roof.10 The breaking must be such as will afford the burg Dak. 166, 120 N. W. 1098, 139 Am. 3 State v. Boon, 35 N. Car. 244, 57 Am. Dec. 555. See also Cox v. State (Tex. Cr.), 194 S. W. 138; People v. Kelley, 274 Ill. 556, 113 N. E. 926. 4 Pressley v. State, 111 Ala. 34, 20 So. 647. 5 Commonwealth v. Stephenson, 8 Pick. (Mass.) 354; People v. Nolan, 22 Mich. 229. 6 Rex v. Davis, Russ & R. 322. 7 State v. Richmond, 138 Iowa 494, 116 N. W. 609, 16 Ann. Cas. 457. 8 Timmons v. State, 34 Ohio St. 426, 32 Am. Rep. 376, Derby's Cases 541. 9 Olds v. State, 97 Ala. 81, 12 So. 409; State v. Willis, 52 N. Car. 190, 4 Bl. Comm. 226. 10 Rex v. Spriggs, 1 M. & Rob. 357. 11 lar an opportunity to enter so as to commit the intended felony. One author, however, states that the slightest actual breaking of any part of the house is sufficient. 12 This view, however, is erroneous. To open a door or window which is already partially open, but not sufficiently so as to permit a person to enter, is not sufficient.13 But for the burglar to raise the window slightly in the daytime, with a • view of preventing the bolt from fastening it, is immaterial.14 It is a sufficient breaking if one open an unlocked screen door fitted so closely into the frame as to require strength to open it.15 Where the intruder enters the house through an open door, and breaks an inner door with intent to commit a felony in the room broken into, and enters the room with such intent, he is guilty of burglary.16 But, at common law, where he enters a house without making a breaking, and breaks out after committing a felony therein, he is not guilty of burglary.17 By an early English statute, however, this is made burglary. 18 This statute, however, is not generally regarded as part of the American common law, but similar statutes obtain in many of the states.19 Merely breaking 11 Clark's Crim. L. 262. 12 Rex v. Hughes, 2 East P. C. 491, 1 Leach 452. 13 Commonwealth v. Strupney, 105 Mass. 588, 7 Am. Rep. 556; Rex v. Hyams, 7 Car. & P. 441. See also People v. White, 153 Mich. 617, 117 N. W. 161, 17 L. R. A. (N. S.) 1102, 15 Ann. Cas. 927. But see State v Lapoint, 87 Vt. 115, 88 Atl. 523, 47 L. R. A. (N. S.) 717. 14 People v. Dupree, 98 Mich. 26, 56 N. W. 1046. 15 Collins v. Commonwealth, 146 Ky. 698, 143 S. W. 35, 38 L. R. A. (N. S.) 769; State v. Henderson, 212 Mo. 208, 110 S. W. 1078, 17 L. R. A. (N. S.) 1100, 15 Ann. Cas. 930. 16 Rex v. Johnson, 2 East P. C. 488; State v. Wilson, 1 N. J. L. 439, 1 Am. Dec. 216; State v. Scripture, 42 N. H. 485. 17 Brown v. State, 55 Ala. 123, 28 Am. Rep. 693; State v. McPherson, 70 N. Car. 239, 16 Am. Rep. 769. 18 12 Anne, ch. 7, § 1 (1713). 19 Lawson v. Commonwealth, 160 Ky. 180, 169 S. W. 587, L. R. A. 1915D, 972. open a trunk, cupboard, chest or box, within the house is not sufficient to make the offense burglary.20 The mere fact that the accused might have entered the house without opening a door or window is immaterial. Thus, where the door was double, being cut across the middle, and the upper half was open, and the accused lifted the hook that fastened the lower half and opened this part and walked in, the breaking was sufficient, the court holding that the fact that the accused could have jumped over the lower part of the door was no defense.21 Merely going upon a piazza with felonious intent is not burglary.22 The breaking may be constructive as well as actual. This may be accomplished in various ways. Thus, the intruder may be admitted by an accomplice already within the house. This accomplice may be a servant, an apprentice, or some other person.23 Again, the intruder may gain admittance by fraudulently concealing himself in a trunk, wardrobe, chest or box, which is taken into the house, 24 or by false representing that he desires to interview the occupant on business,25 or by knocking on the door and rushing into the house without an invitation, after the door has been opened.20 And one who has authority to enter a house or place of business for certain purposes may be held guilty of burglary if he abuses such authority and makes use of it to gain admission to commit a felony, as where an employé 20 State v. Wilson, 1 N. J. L. 439, 1 Am. Dec. 216; State v. Scripture, 42 N. H. 485. 21 Ferguson v. State, 52 Nebr. 432, 72 N. W. 590, 66 Am. St. 512; State v. Rowe, 98 N. Car. 629, 4 S. E. 506. See also Collins v. Commonwealth, 146 Ky. 698, 143 S. W. 35, 38 L. R. A. (N. S.) 769. 22 State v. Puckett, 95 S. Car. 114, 78 S. E. 737, 46 L. R. A. (N. S.) 999. who had a key to his employer's building opened it when his duties did not require him to do so and took property intending to convert it to his own use.27 In all of the foregoing instances the breaking is sufficient. 28 § 478. The entry.-To constitute burglary, it is essential that some part of the body, or some part of the instrument used to commit the felony, enter the house.2 An entry of some part of the instrument used solely to make the breaking is not sufficient.29 Thus, where the burglar bored a hole with a center-bit through the panel of the house door, near one of the bolts by which it was fastened, and some pieces of the broken panel were found within the threshold of the door, the court held that since the entry of the center-bit was not made for the purpose of committing a felony it was not sufficient.30 On the other hand, when the instrument used is employed not only to make the breaking, but also to effect the only entry contemplated and necessary to the consummation of the felonious intent, the offense is complete. Thus, where the accused bored a hole through the floor of a granary, using a large auger, and then held a sack under the hole to catch the corn that came through the hole, the entry was sufficient, for the auger was the instrument employed not only to make the entrance but also to effect the larceny.31 Any entry, however slight, is sufficient. Thus, where the accused cut a hole in the window shutters of the prosecutor's shop, which was part of his dwelling-house, and put his hand 27 State v. Corcoran, 82 Wash. 44, 143 Pac. 453, L. R. A. 1915D, 1015n. 28 Commonwealth v. Glover, 111 Mass. 395; Harrison v. State, 20 Tex. App. 387, 54 Am. Rep. 529; State v. McCall, 4 Ala. 643, 39 Am. Dec. 314; Evans v. State, 19 Ga. App. 68, 90 S. E. 1025; Gilford v. 29 Rex v. Rust, 1 Moody Cr. C. 183. 30 Rex v. Hughes, 2 East P. C. 491, 1 Leach 452. 31 Walker v. State, 63 Ala. 49, 35 Am. Rep. 1, Derby's Cases 544. |