through the hole with intent to steal watches and other things within his reach, the entry was sufficient.32 And again, where the accused broke a pane of glass in the upper sash of a window and introduced his hand between the glass and the inside shutters of the window, which were fastened, all the judges were of the opinion that the entry was sufficient.33 On the other hand, where the accused raised a window and introduced a crowbar to force open the inside shutters, the judges held that the conviction was wrong because it did not appear that any part of his hand was inside the window although the aperture was large enough to admit it.34 And again, where the accused broke open outside window shutters, and in attempting to raise the window sash put his hands in the space between the shutters when closed and the sash, the entry was not sufficient. The court observed in this particular case, "To constitute 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 have consummated a lonious intention."35 1 The breaking and the entry may be on different nights, but each must be done with intent to commit a felony.36 § 479. Dwelling-houses.-At common law, as in case of arson, the building must be the dwelling-house of another, or an outhouse within the curtilage. The only exceptions to the rule were as to breaking and entering into a church or through the walls or gates of a town.3 32 Gibbon's Case, 2 East P. C. 490, Foster C. L. 107. 33 Rex v. Bailey, Russ. & Ry. 341. 34 Rex v. Rust, 1 Mood. Cr. C. 183. 37 35 State v. McCall, 4 Ala. 643, 39 Am. Dec. 314. 36 Commonwealth v. Glover, 111 Mass. 395. 37 People v. Richards, 108 N. Y. 137, 15 N. E. 371, 2 Am. St. 373. Outbuildings closely and intimately connected with the habitation, the use of which is essential to its enjoyment, are protected as is the dwelling-house itself.38 Where a shop is part of a dwelling-house, breaking and entering into the shop may be burglary.39 A room in a hotel in which a man resides with his family, has been held a dwelling-house.40 Statutes in many states have extended the offense of burglary to include breaking and entering into buildings other than a dwelling-house.40a § 480. Nighttime.-To constitute burglary, at common law, both the breaking and the entering must be in the nighttime; but, as previously stated, they may occur on different nights. The term nighttime, like the terms breaking and entering, has a technical meaning. At common law, it begins when daylight ceases and ceases when daylight begins again. In other words it exists during the time that a person's countenance is not reasonably discernible by sunlight. Moonlight and artificial lights, such as gas and electric lights, do not enter into the definition.41 Hence the ability to distinguish objects at the time is not the test. And if daylight has ceased or not begun the offense is burglary, no matter how bright the moonlight or artificial light.* 42 "It is now generally agreed, that if there be daylight enough begun or left either by the light of the sun or twilight, whereby the countenance of a person may be reasonably discerned, it is no burglary; but that this does not extend to moonlight; for then many midnight burglaries would 38 Unseld v. Commonwealth, 140 Ky. 529, 131 S. W. 263, 140 Am. St. 393. 39 Quinn v. People, 71 N. Y. 561, 27 Am. Rep. 787, Derby's Cases 536. 40 People v. Carr, 255 Ill. 203, 99 N. E. 357, Ann. Cas. 1913D, 864n, 41 L. R. A. (N. S.) 1209n. 40a State v. Dotson, 97 Wash. 607, 166 Pac. 769 (garage). 41 State v. Morris, 47 Conn. 179; People v. Griffin, 19 Cal. 578; 4 B1. Comm. 224. 42 State v. Bancroft, 10 N. H. 105; State v. McKnight, 111 N. Car. 690, 16 S. E. 319, Derby's Cases 540. 44 go unpunished."43 In some of the states what constitutes nighttime is fixed by statute." In a few of them it extends from one hour after sundown to one hour before sunrise.45 § 481. The intent.-The breaking and the entering must be done with intent to commit a felony within the house.46 If done with the intent to commit a misdemeanor, and the intruder commits a felony, he is not guilty of burglary. On the other hand, if he breaks and enters with intent to steal all the money in the house that he can find, and he finds only two dollars, which he carries away, and stealing two dollars is only a misdemeanor, he is guilty of burglary." As a general rule, the intent is to commit larceny: but it may be to commit any other felony.48 It is not burglary at common law, to break and enter with intent to commit fornication, incest or adultery; for neither of these crimes is a felony at common law. 49 Nor is it burglary where the intent is to recapture goods which the intruder believes he has a right to take, although he is wholly mistaken.50 Where the intent is to get intercourse with a woman by fraudulently impersonating her husband, the breaking and entering is burglary, provided the intercourse under such circumstances amounts to rape. Whether such intercourse amounts to rape is a question upon which the decisions are in conflict. In an 432 East P. C. 509; 1 Hale P. C. 550. 44 See the statutes and codes of the various states. 45 Mass. Rev. Laws (1902), ch. 219, p. 1853, § 10. 46 Vickery v. State, 62 Tex. Cr. 311, 137 S. W. 687, Ann. Cas. 1913C, 517n; Cox v. State (Tex. Cr.), 194 S. W. 138; State v. Phillips, 80 W. Va. 748, 93 S. E. 828 (intoxication a defense); People v. Kelley, 274 I11. 556, 113 N. E. 926; Howard v. People, 62 Colo. 131, 160 Pac. 1060; State v. Bricker, 178 Iowa 297, 159 47 Harvick v. State, 49 Ark. 514, 6 S. W. 19. 48 Walton v. State, 29 Tex. App. 163, 15 S. W. 646; Harvey v. State, 53 Ark. 425, 14 S. W. 645, 22 Am. St. 229. 49 State v. Cooper, 16 Vt. 551; Robinson v. State, 53 Md. 151, 36 Am. Rep. 399, Derby's Cases 547. 50 Rex v. Knight, 2 East P. C. 510. 51 English case upon this point, eight of the judges thought that having carnal knowledge of a woman under such circumstances was rape and four thought it was not." The fact that the intruder changes his intent after entering the house is immaterial.52 And the fact that it proves physically impossible to carry out his intent is also immaterial.53 51 Rex v. Jackson, Russ. & Ry. 487, 2 B. & H. Lead. Cas. 254n. 52 Lanier v. State, 76 Ga. 304; Hunter v. State, 29 Ind. 80. 53 State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490; State v. McDaniel, 60 N. Car. 245. See also State v. Simpson, 32 Nev. 138, 104 Pac. 244, Ann. Cas. 1912 C, 115; Schultz v. State, 88 Nebr. 613, 130 N. W. 105, 34 L. R. A. (N. S.) 243n. TITLE FOUR. CRIMES AGAINST PROPERTY. Chapter XXVI. Blackmail or Threatening Letters----§§ 485-487 XXVII. Cheating and False Pretenses. §§ 490-502 $$ 505-514 S$ 515-531 §§ 533-561 $$ 563-572 $$ 575-577 --§§ 580-581 § 485. Definition.-In practically all jurisdictions it is now an offense to obtain money or property from another by threatening injury to person, property or character. This is ordinarily known as blackmail. It is possible that such offenses were punishable at common law,' but today the offense is entirely statutory, and 1 Rex v. Southerton, 6 East. 126; 3 Russ. Crimes h Am. ed.) 177. |