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it must come under one of the three heads into which that subject is divided by Russell as above set forth. It cannot come under the first or the second, as the entrance was certainly not obtained by threats or fraud. If it comes under any of them, it can only be the third, and on the ground that the entrance was obtained by a conspiracy. Was it obtained by a conspiracy, so as to be a constructive breaking within the meaning of the law in regard to burglary?

The conspiracy, if any, was between the prisoner Clarke and Henderson, who, with Ďabney, jointly rented and occupied a room in the house of Fannie Straus, in which room was the trunk of Dabney, which, with its contents, was charged to have been stolen. If there were any such conspiracy, what was its object? Could it have been to break and enter the room of which Henderson and Dabney were joint tenants and occupants, of which each kept a key, and which, of course, each had, at all times, either by day or by night, a right to enter at pleasure ? or must it not have been only to steal the trunk of Dabney and its contents, which were in the room, and which were actually stolen, as charged in the indictment? They had no occasion to form a conspiracy to break and enter the room. They had a ready and a lawful mode of entering that through the door, which Henderson could at any time unlock. Dabney and Henderson and Clarke had rooms in the same house, the doors of the two rooms opening near each other on the same porch, and they frequently interchanged visits from one room to the other. Suppose Clarke had visited Henderson and Dabney's room in the latter's absence, and in the night-time, and that Clarke and Henderson had then agreed to steal Dabney's trunk, and had stolen it accordingly. Of course there would have been no burglary in that case. Can it make any difference that the agreement to steal was made before they unlocked the door and entered the room? Suppose it had been, as it may have been, made in Clarke's room, and the parties had then, immediately, stepped from Clarke's room into Henderson and Dabney's room and stolen the trunk of Dabney. Would the unlocking of the door of the latter room by Henderson, in that case, be a breaking of the room within the meaning of the law in regard to burglary, either as to Clarke or as to Henderson ? The case stands upon the same ground on which it would have stood, in this respect, if Henderson had been the sole renter and occupier of the room jointly rented and occupied by himself and Dabney. Each joint-tenant had the same right of entry, at pleasure, into the joint room, as he would have had into his several room.

Then, can a man commit burglary by breaking his own house, even by actually breaking it by violence, much less by unlocking the door and entering in the usual way? Can he break it by mere construction of law ?

We see nothing in any of the books to warrant the opinion that he can; and it would be contrary to principle, and the very definition of the offence, to say that he can. That definition is, “A breaking and entering the mansion-house of another,&c., not of one's own house. The offence is aimed at the dwelling-house of another, which is his castle, and which the law protects both against civil and criminal injuries. Here the offence was aimed, not at the dwelling-house of Henderson, that was thrown open to Clarke by the owner or the occupant, but at the trunk of Vol. II.)


[No. 11.

Dabney. It may be said that the joint room was the dwelling-house of Dabney as well as of Henderson, and so it was, but that, as before said, can make no difference. Dabney consented to rent a room jointly with Henderson, and thus consented that it should be the dwelling-house of Henderson, with all the right of entry possessed by a sole occupant.

The cases of constructive breaking by conspiracy are cases in which one of the conspirators is not the owner of the house, but a servant of the owner, or one having a bare charge and not actual possession thereof; where there is a bare charge, the person having such charge may open the door and enter at pleasure, so long as he is acting in pursuance of such charge, and of the powers and duties which it confers or imposes. But whenever he conspires with another wrong-doer to open the door and let him in to commit a felony, and the opening and entering are accordingly done, both parties are guilty of burglary. There has been in that case a breaking and entering of the mansion-house of another, in strict pursuance of the definition of the offence. The house is in no sense the house of the servant, who had only a bare charge in regard to it, and the power conferred by that charge ceased to exist when the servant sought to pervert it to the injury of his employer by opening an entrance into his dwellinghouse to a felon by night. Henderson stood in no relation of a servant to Dabney in regard to the room which they jointly occupied, but had the actual possession and legal right of possession of that room jointly with Dabney.

There is a case referred to in 1 Russell on Crimes, 816, 817, in which a guest at an inn broke open and robbed the room of another guest at the same inn, being aided in such breaking by the landlord, to whom he pretended that the other guest had stolen his goods. Mr. Baron Adams, who tried the prisoner, doubting whether the bedchamber could properly be called the dwelling-house of the prosecutor, as stated in the indictment, the case was submitted to the consideration of the judges. They all thought that though the prosecutor had for that night a special interest in the bedchamber, yet that it was merely for a particular purpose, viz. : to sleep there that night as a travelling guest, and not as a regular lodger; that he had no certain and permanent interest in the room itself, but that both the property and possession of the room remained in the landlord, who would be answerable civiliter for any goods of his guest that were stolen in that room, even for the goods then in question, which he could not be unless the room were deemed to be in his possession. They thought also that the landlord might have gone into the room when he pleased, and would not have been a trespasser to the guest. The landIord in this case, says Russell, does not appear to have been privy to the felonious intent of the prisoner; but even if the landlord had been an accomplice in the act of the prisoner, it seems that his offence would not have been burglary; for though it had been said that if the host of an inn break the chambers of his guest in the night to rob him, it is burglary, that doctrine is questioned ; and it was well observed that there seems to be no distinction between that case and the case of an owner residing in the same house breaking the chamber of an inmate, having the same outer door as himself, which would not be burglary; and for this doctrine is cited 2 East P. C. ch. 5, sec. 15, p. 502.

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landlord or o inmate of the not be guil

That authority, cited from Russell and from East, shows that if the landlord or owner residing in the same house, breaking open the room of a guest or an inmate of the house, would not be guilty of burglary, a fortiori a joint tenant would not be guilty of that offence in unlocking the door of the joint tenement and taking therefrom the goods of his roommate. In the former case the guest or inmate may be said to have in some sense a separate possession of his chamber during his occupancy of it, so as to make it, by construction of law, his dwelling-house and not that of his host; but in the latter case, beyond all question, the joint tenement is as much the dwelling of one of the joint tenants as the other ; and that is precisely this case.

There can be no doubt but that Clarke and Henderson stand upon the same footing in regard to the offence committed by them; and if it was not burglary in Henderson, it was not burglary in Clarke. If Henderson had a right to unlock the door and enter, he certainly had a right to per mit Clarke to enter.

The cases before stated from Russell of constructive breaking by threats and fraud, are cases in which, though the entry by the felon may have been by the act of the owner, yet such act was not freely and voluntarily done, but was induced by force or the apprehension thereof, or fraud ; and 80 was not, in contemplation of law, the act of the owner. It was done invito domino.

We have seen no case, and think there has been none, in which the entry was by the voluntary act and consent of the owner or occupier of the house, which has been held to be burglary. And were we to affirm the judgment in this case, we would establish a doctrine of constructive burglary which would not only be new, but contrary to the well known definition of that offence. While the legislature might make such a change, we think it would be judicial legislation in us to do so. If the question, upon principle, were more doubtful than it is, we would be inclined in favorem vitæ, not to apply the doctrine of constructive burglary to this new case. The offence of burglary may be punished with death.

We are therefore of opinion that the hustings court erred, both in refusing to give the instruction asked for by the prisoner, and in giving, in lieu thereof, the instruction which was given, and also in overruling the motion of the prisoner to set aside the verdict and grant him a new trial. The judgment must therefore be reversed, the verdict set aside, and the cause remanded to the hustings court for a new trial to be had therein in conformity with the foregoing opinion. On which new trial the prisoner may be acquitted of the felonious and burglarious breaking and entering into the dwelling-house, but convicted of the larceny as charged in the indictment. See Code, ch. 202, $$ 27 and 30, pp. 1248 and 1249.

ANDERSON, STAPLES, and BOULDIN, JJ., concurred in the opinion of MONCURE, P. CHRISTIAN, J., dissented.

Judgment reversed.

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To avoid a policy of life insurance upon the ground that the answers to questions pro

pounded by the application are untrue, it must appear that the answers were false malo animo, deliberate misrepresentations made with intent to misstate the facts for a fraudulent purpose. Where the questions are very difficult to answer accurately, the answers, in the absence of proof of fraud, may be treated as representations, although

declared by the policy to be warranties. Whether the answers are fraudulent is a question of fact for a jury.

The opinion of the court was delivered by

RAPALLO, J. The exceptions mainly relied upon on the argument are those taken to the refusal of the judge to grant the motion for a nonsuit; to his refusal to charge the jury that " if they believed that Fitch had had any disease of the eyes such as to require care and attention, no recovery could be had ;” that “if they believed that Fitch had had any injury of the eyes, there could be no recovery ;” and that “ if they believed that there existed at any time prior to the application, either a disease, or any injury of the eye, there could be no recovery.” Also to the exclusion of evidence that Fitch committed suicide. Other exceptions were taken and appear in the case, but if the positions upon which they are founded are sound, they are available under the motion for a nonsuit, and have been so treated on the argument, and will be here considered in that connection.

The motion for a nonsuit was made upon the ground that by the undisputed and uncontradicted evidence it appeared that Fitch, in the application he made for the policy, made misrepresentations as to certain facts, and concealed and withheld certain other facts, which, under the terms of the policy and of the application, necessarily made it void.

It is claimed on the part of the defendant that the statements contained in the application were warranties, and must be absolutely true; that it was not for the jury to pass upon the question whether they were material to the risk, nor whether the applicant made any intentional misstatement; that the only question is whether or not the statements were true, and that if any untrue statement (except as to ancestry) was made in the application, the plaintiff cannot recover, and that. it is wholly unimportant whether or not the matter as to which the untrue statement was made had any tendency to increase the risk, or any connection with the cause of death, or whether the statement was known to the applicant to be untrue.

The first question to be considered is, whether the statements contained in the application were absolute warranties or were representations, and whether, under the terms of the policy and application, the warranty therein mentioned was not in effect simply that the statements were made in good faith. Although the term warranty is used in both instruments, Vol. II.)

Fitch v. Am. POPULAR LIFE Ins. Co.

(No. 11.

it must be construed with reference to the other language employed in the same instruments. These instruments were prepared by the defendant, and themselves explain the degree of responsibility to be assumed by the applicant in answering the questions, propounded to him. Although the word warranty is employed, yet if the explanations accompanying that term show that a strict warranty was not intended, these explanations given by the defendant itself in the papers, and which induced the applicant to undertake to answer the questions and enter into the contract, must govern.

The application begins with a preamble, headed “Explanation.” This explanation describes the nature of life insurance, and defines the terms “ insured” and “ assured.” It then proceeds to state that the policies of this company are made in entire, unconditional, honest good faith, and that it is required as a condition that the application be made in equal good faith. That if it is, and the conditions fulfilled, premiums paid when due, &c., — "all of which is easily done when the intention is good, the assured may confidently rely upon the prompt payment of the assurance by this company as one of the most certain of human events. The assurance can be jeopardized only by dishonesty or inexcusable carelessness on the part of the applicant, since each question and answer is easily made correctly; if only truthful, I do not know 'is as proper at one time as • Yes' or No' at another. .... The sole object is to protect the honest from the effects of misstatements not only of themselves but of others, by having everything so plain that it will be clearly evident that a misstatement can be made by intention only.”

It then proceeds to propound questions as to the grandparents, parents, uncles, and aunts on the paternal and maternal sides, whether living or dead, their health when living, ages at death, causes of death, weight, height, complexion, color of hair, beard, and eyes, and various other questions concerning them. Then follow a great number of questions of the most minute character touching the insured, his constitution, habits, &c., and among others as to his weight, how much increase or diminution in weight in one year and in five years, what diseases he has had, including those of childhood ; whether any place where he has ever lived was subject to any disease, and what; as to his habits, how often he bathes, whether he rises and retires regularly, whether late or early, what he wears next his skin, what kind of stimulants he uses, if any; whether he takes his tea or coffee weak or strong; the extreme number of glasses of ale, beer, cider, or wine he takes in a day, the quantity he takes in a month; whether he has ever been intoxicated, and how often ; whether the action of his bowels is regular every day; whether he has any practice tending to impair health, &c.; whether his vocation endangers life or health, what it will be; whether he has reason to think his residence, vocation, or any circumstance affecting him will be more hazardous to life and health than is at present the case ; whether his hands and feet are usually warm or cold ; whether any kind of food usually produces ill health or indigestion; whether he has ever had any of a long catalogue of diseases, many of which are of a character which he might well have had without knowing it, and which he might naturally deny ignorantly; whether he has ever had any diseases of, or injury to, any organ, or has ever had any symp



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