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in pursuance of said agreement they entered the room and stole the said property, then the prisoner is guilty of burglary." To which ruling of the court the prisoner excepted.

The second bill of exceptions was to the decision of the court overruling the motion of the prisoner to set aside the verdict of the jury as contrary to the law and evidence, and grant him a new trial.

To the judgment pronounced against the prisoner as aforesaid, he applied to a judge of this court for a writ of error; which was accordingly

awarded.

Burglary is defined to be, a breaking and entering of the mansion-house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. 1 Russell on Crimes, 785. Each of the facts constituting this definition must be proved by the prosecutor, in order to sustain the charge of burglary.

In this case there was no doubt or difficulty in regard to any of these facts save one, and that was in regard to the breaking; whether there was a sufficient breaking to constitute burglary within the meaning and definition of that offence. That is the only question arising in this case, and that question is presented by each of the two bills of exceptions taken in the case.

There are two kinds of breaking within the meaning of the said definition; one an actual breaking, and the other a breaking by construction of law.

It is not pretended that there was an actual breaking in this case; and therefore it is needless to inquire what will and what will not constitute an actual breaking in the meaning of the law. If there was any breaking within such meaning in this case, it was only a breaking by construction of law.

Was there a breaking in this case by construction of law?

Such a breaking is not by violence, which, more or less, is supposed to be embraced in every actual breaking; but is, "where an entrance is obtained by threats, fraud, or conspiracy." 1 Russell on Crimes,

792.

That writer gives instances of a constructive breaking by each of these three modes, as:

1st. By threats. Where, in consequence of violence commenced or threatened in order to obtain entrance to a house, the owner, either from apprehension of the violence, or in order to repel it, opens the door and the thief enters, such entry will amount to breaking in law; for which some have given as a reason, that the opening of the door by the owner being occasioned by the felonious attempt of the thief, is as much, imputable to him as if it had been actually done by his own hands. And in a late case, where the evidence was that the family within the house were forced by threats and intimidation to let in the offenders, Thompson, B., told the jury that although the door was, literally, opened by one of the family, yet if such opening proceeded from the intimidations of those who were without, and from the force that had been used, knocking at and breaking the windows, calling out and insisting on the door being opened, and firing of guns; if, under these circumstances, the persons within were

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induced to open the door, it was as much a breaking by those who made use of such intimidations to prevail upon them so to open it, as if they had actually burst open the door. Ib. 792, 793.

2dly. By fraud. Where an act is done in fraudem legis, the law gives no benefit thereof to the party. Thus "if thieves, having an intent to rob, raise hue and cry and bring the constable, to whom the owner opens the door, and they, when they come in, bind the constable and rob the owner, it is burglary. And upon the same principle, the getting possession of a dwelling-house by a judgment against the casual ejector, obtained by false affidavits, without any color of title, and then rifling the house, was ruled to be within the statute against breaking the house and stealing the goods therein. So, if a man go to a house under pretence of having a searchwarrant, or of being authorized to make a distress, and by these means obtain admittance, it is, if done in the night-time, a sufficient breaking and entering to constitute burglary. If admission to a house be gained by fraud, not carried on under the cloak of legal process, as by a pretence of business, it will also amount to a breaking by the construction of law." As" where thieves came to a house in the night-time with intent to commit a larceny, and knocked at the door, pretending to have business with the owner, and being by such means let in, robbed him; they were held guilty of burglary. And so where some persons took lodgings in a house, and afterwards, at night, while the people were at prayers, robbed them; and it was considered that the entrance into the house, being gained by fraud, with an intent to rob, the offence was burglary. For the law will not endure to have its justice defrauded by such evasions. A case is also reported where the entrance to the house was gained by deluding a boy who had the care of it. It appeared upon the evidence that the prisoner was acquainted with the house, and knew that the family were in the country; and that upon meeting with the boy who kept the key, she desired him to go with her to the house; and by way of inducement, promised him a pot of ale. The boy accordingly went with her, opened the door and let her in; upon which she sent him for the pot of ale, and when he was gone robbed the house and went away. And this being in the night-time, it was adjudged that the prisoner was clearly guilty of burglary." Ib. 793, 794.

3dly. By conspiracy. "Thus where a servant conspired with a thief to let him into his master's house to commit a robbery, and in consequence of such agreement, opened the door or window in the night-time and let him in; this, according to the better opinion, was considered to be burglary in both the thief and the servant; and this doctrine is confirmed by a subsequent decision. Two men were indicted for burglary, and upon the evidence it appeared that one of them was a servant in the house where the offence was committed; that in the night-time he opened the street door, let in the other prisoner, and showed him the sideboard, from whence the other prisoner took the plate; that he then opened the door and let the other prisoner out; did not go out with him, but went to bed; and upon these facts being found specially, all the judges were of opinion that both the prisoners were guilty of burglary, and they were accordingly executed." Ib. 794.

If the case now under consideration be a case of constructive breaking,

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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 Dabney, 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 e 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

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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 landlord 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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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 so 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.