Page images

Definition of Burglary is a felony at common law, in breaking and entering the burglary. mansion house of another, in the night, with intent to commit some

felony within the same, whether the felonious intent be executed or

not. Hale's Sum. 79. Breaking To amount to a breaking within this branch of the definition,

the entrance must be obtained either by fraud, conspiracy, threat,

or force. 2 Russ. 2. Trespass only. But every entrance into the house by a trespasser is not a break

ing in this case; there must be an actual breaking. As, if the door of a mansion house stand open, and the thief enter, this is not breaking. So, if the window of the house be open, and a thief with a hook or other engine draweth out some of the goods of the owner, this is no burglary, because there is no actual breaking of the house. But if the thief breaketh the glass of a window, and with a hook or other engine draweth out some of the goods of the owner, this is burglary, for there was an actual breaking of the

house. 3 Inst. 64. Actual break- And Lord Hale says, these acts amount to an actual breaking; ing.

viz. opening the casement or breaking the glass window, picking open the lock of a door, or putting back the lock, or the leaf of a

window, or unlatching the door that is only latched. 1 Hale, 552. Entering by a So, if a thief enter by the chimney it is a breaking; for that is as chimney.

much closed as the nature of things will permit. i Haw. c. 38. $ 4. 4 Black. Com. 226.

Getting into a chimney of a house is a sufficient breaking and entering to constitute burglary, though the party does not enter any of the rooms of the house.

Brice, E. T. 1821. C. C. R. 450. The prisoner got in at the top of a chimney, and got down to just above the mantelpiece of a room on the ground floor. Case on question, whether this was a breaking and entering of the dwelling-house. Holroyd and Burrough Js. thought not, on the ground that he was not in the dwelling-house till he was beyond the chimney. The ten other judges held otherwise : for the chimney was part of the dwelling-house; the getting in at the top was a breaking of the dwelling-house, and the lowering himself an entry into the dwelling,

house. Forcing a win

Rex v. Hall, York Sp. Ass. 1818, reserved per Bayley J., C.C. R. dow fastened with wedges.

355. H. was convicted at York Sp. Ass. 1818, of burglary. It appeared that the prisoner entered the prosecutor's house by lifting up a large iron grating, which was placed over the cellar (for the admission of light only), and opening a window in a passage leading from that cellar. The cellar opened into a passage, which led into the house, and the window was within the walls of the house; the cellar was beyond the walls. The grating weighed eight stone, and was usually fastened inside by a large iron chain, but it was not so fastened at the time the prisoner entered. The window opened upon hinges, and was fastened by two nails which acted as wedges, but those nails would open by pushing. It was objected by the prisoner's counsel, that the lifting up the grate was no breaking, because it was kept down by its own weight only; and that the forcing open the window was no breaking, because it was done by pushing only. – Mr. J. Bayley thought the forcing the window was a breaking, but reserved both points for the consideration of the judges, who held the conviction right, and the

Rex v.

prisoner received sentence of death, but was afterwards reprieved, and transported for fourteen years.

Res v. Haines and Harrison, E. T. 1821. C. C. R. 451. The Pulling down prisoner entered a house by pushing down the upper sash of a a sash. window ; it had no fastening, and was kept in its place by the pulley weight only : there was an outer shutter, but it was not put to. Case on question, whether the pushing down the sash was a breaking, and the twelve judges were unanimous that it was ; and Abbott Č.J. observed, without animal force the sash would keep its place.

Brown's case, Winton Spring Ass. 1799, cor. Buller J. 2 East's Opening foldP. C. 487. On indictment for burglary in the dwelling-house of ing doors. G. A., it appeared that the place which the prisoner entered was a mill under the same roof, and within the same curtilage as the dwelling-house. Through this mill was an open entrance or gateway capable of admitting waggons, and intended for the purpose of loading them more easily with flour, through a large aperture or hatch over the gateway communicating with the floor above. This aperture was closed by folding doors with hinges, which fell over it, and remained closed by their own weight, but without any interior fastening ; so that those without under the gateway could push them open at their pleasure by a moderate exertion of strength : in this manner the prisoner entered the mill in the night, with the evident intention to steal the flour. Buller J. held this to be a sufficient breaking to constitute the offence, and the prisoner was accordingly convicted. But this doctrine appears to Whether openbe extremely doubtful, from Callan's case, C. C. R. 157., who was ing a trap door tried before Lord Ellenborough C. J. at the 0. B. Nov. Sess. 1809, or flap of a

cellar fastened on an indictment for stealing three bottles of wine in the dwelling.

by compression house of the prosecutor, and afterwards burglariously breaking only caused by out of the said house. — The wine was stolen from a bin in the its natural cellar belonging to the dwelling-house of the prosecutor, who weight, be a kept the Cock public-house, in Tottenham Court, and had been sufficient breakremoved by the prisoner from thence to the flap by which the ing to constitute cellar was closed on its outside next to the street. The flap


had bolts belonging to it, by which it might have been bolted within ; but whether it was so bolted on the night of the burglary the prosecutor could not say, but he was sure the flap was down. It did not appear whether the prisoner had entered by the flap of the cellar, or not, as a door which communicated with the cellar in another direction, and which the prosecutor had left locked, was broken open. The probability, therefore, was that the prisoner had entered that way; but if he had entered by raising up the flap, it would (unless prevented) have closed after him by its own weight, and, in order to get out after it had so closed, it would have required the degree of force necessary to lift up such a flap, to be applied to it. The flap was a large one, being made to cover the opening of a cellar, through which the liquors consumed in the public-house were usually let down into the cellar. The prisoner, when first discovered, had his head and shoulders out of the Aap of the cellar, and upon being seized made a spring, got out, and ran away: he was immediately pursued, caught, and brought back, and the flap through which he had got was then found fallen down and closed. Upon this evidence it was doubted, whether there was a sufficient breaking to constitute the crime


of burglary, and the prisoner having been convicted, the ques. tion was saved for the opinion of the twelve judges, who it is understood entertained great doubts upon the question. — No opinion was ever delivered, but the prisoner was discharged out

of custody. Difference be- The only difference between this and Broron's case appears to tween Brown's be, that in B.'s case there were no interior fastenings. - In this, and Callan's there were, but in neither case were any in fact used, but the com

pression or fastening, such as it was, was produced by the mere

operation of natural weight in both cases. Lifting up the The prisoner got into prosecutor's dwelling-house by raising up flap of a cellar

the flap of a cellar which was let down, but which the jury found usually kept

not to have been nailed; and from the cellar there was an internal down by its own weight, is communication with the house.

On Ca. Res., after a verdict of a sufficient guilty, the judges held that there was a sufficient breaking, and breaking that the conviction was right. E. T. 1833. R, v. G. Russell,

1 M. 377. Semb., that this decision supersedes a contrary ruling

on a like point in R. v. Lawrence & Weaver, 4 C. & P. 231. Aperture left Where a cellar window was boarded up, but an aperture left for adinission

for the admission of light, through which a thief entered in the of light. night, this was held to be no burglary. R. v. Lewis, 2 C. & P.

628. Breaking open Rex v. Bennett and Turnwell, 0. B. Dec. 1814. cor. Sir J. Silan external gate vester, Recorder. W. B. and J. T. were convicted at the 0. B. not opening

Dec. Sess. 1814, of burglariously breaking and entering the into any build. ing, no bur

dwelling-house of W. A. Frampton in the night of the 15th of glary. November, with intent to steal his goods and chattels, in the said

dwelling-house. It appeared in evidence, that the place broken was an external gate not opening into any building, but only into the yard, through which access might be had without interruption to the dwelling part of the prosecutor's premises. But upon reference to the judges on case reserved, they unanimously held this not to be burglary, the place broken being the outward fence of

the curtilage only. C. C. R. 289. Opening an So also in the case of John Davis and James Lemon, who were area gate with a convicted of burglary at the 0. B. Jan. Sess. 1817, before Abbolt J. skeleton key,

A question arose, whether the opening an area gate by means of and thereby effecting an en

a skeleton key, and thereby effecting an entrance through the trance into the kitchen door, which was open, would constitute the crime of house, adjudged burglary. At Feb. Sess. 1817, Graham B. stated, that nine judges not burglary. assembled to consider this case, were unanimously of opinion that,

the area gate not being part of the dwelling-house, there was not a sufficient breaking to constitute the crime of burglary. C. C. R.

322. Breaking inner But a burglary may, notwithstanding, be committed by a breakdoor.

ing on the inside: for though a thief enter a dwelling-house in the night-time through the outer door being left open, or by an open window, yet, if when within the house, he turn the key or unlatch a chamber door, with intent to commit felony, this is burglary.

2 East's P. C. 488. Breaking A servant lay in one part of the house and his master in another, inner door. between them was a door at the foot of the stairs, which was

latched; the servant in the night drew the latch, and entered his master's chamber in order to murder him : this was held to be burglary. 2 East's P. C. 488.

So where one of the servants in the house opened his lady's Breaking chamber door (which was fastened with a brass bolt), with design inner door. to commit a rape ; it was ruled to be burglary, and the defendant was convicted. Gray's case, 1 Stra. 481.

At a meeting of the judges upon a special verdict, in January Breaking open 1690, they were divided upon the question, whether breaking open door of cupthe door of a cupboard let into the wall of the house were burglary the wall of a or no. Concerning which, Mr. J. Foster (Fost. 108, 109.) thinks, house. that with regard to cupboards, presses, lockers, and other fixtures of the like kind, in favour of life, a distinction ought to be made between cases relating to mere property, and such wherein life is concerned. He says, “ In questions between the heir or devisee, and the executor (see 2 Vern. 508. I P.Wms. 94.), those fixtures may with propriety enough be considered as annexed to, and parts of, the freehold. The law will presume, that it was the intention of the owner, under whose bounty the executor claimeth, that they should be so considered ; to the end that the house might remain to those who, by operation of law, or by his bequest, should becone entitled to it, in the same plight he put it or should leave it, entire and undefaced. But in capital cases, I am of opinion that such fixtures, which merely supply the place of chests 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.” And Lord Hale, in another passage, seems to have inclined to the same opinion. 1 Hale, 555. 2 East's P. C. 489.

So, if the thief enter by the open door, and in the house break Breaking trunk a trunk or box which was locked, this is no breaking, to constitute locked. a burglary; because such things are no part of the house. 2 East's P.C. 488.

Some doubts having been formerly raised, whether, if a person Breaking out entered a dwelling-house, without breaking it, with intent to com- of a house. mit a felony, and afterwards broke the house in the night-time to get out, it amounted to burglary, it is declared by 7 & 8 G.4. c. 29. $ 11., that if any person shall enter the dwelling-house of another with intent to commit felony, or being in such dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night-time, such person shall be deemed guilty of burglary.

Where it appeared that the sash of a window had been a little Opening a sash opened, but not sufficiently to allow of a person entering through which was it, and the prisoners threw the sash up and got in, held, that it did already in part

opened. not constitute a breaking. H. 1828. (a) R. v. Smith, R. & M. 178.

N. B.— This was not a case of burglary, but of house-breaking, and committing larceny therein.

Part of a pane of glass in a window was broken, and prisoner Glass of winput his hand through to undo the fastening of the window, but dow already could not reach sufficiently far without breaking the residue of the broken, fastene pane: he did so, unfastened and opened the window, and got in ; ing undone. and whether this was a sufficient breaking was the question. Thir.

(a) The ground of the judges' opinion was, that there was no decision which went the length of holding this a breaking; and they thought they ought not to go beyond what had been decided unless the case were within some settled principle, which this was not. MS, Bayley B.


teen judges (abs. Lord Lyndhurst B. & Bolland B.) were unanimous that it was, not by breaking the residue of the pane, but by unfastening and opening the window. H. T. 1832. R. v. Robin.

son, MS. Bayley B. S. C. 1 M. 327. Getting en- Thieves, having an intent to rob, raised the hue and cry, and trance by fraud. brought the constable, to whom the owner opened the door ; and

when they came in they bound the constable and robbed the owner; held to be burglary. So if admission be gained under pretence of business ; or if one take lodgings with a like felonious intent, and afterwards rob the landlord; or get possession of a dwelling-house by false affidavits without any colour of title, and then rifle the house ; such entrance being gained by fraud, it will

be burglarious. 2 East's P. C. 485. By deluding a So in A. Hawkins's case, 0. B. 1704. 2 East's P. C. 485. She boy who bad was indicted for burglary; upon evidence it appeared that she was the care of the

acquainted with the house, and knew that the family were in the country; and meeting with the boy who kept the key, she prevailed upon him to go with her to the house, by the promise of a pot of ale; the boy accordingly went with her, opened the door, and let her in ; whereupon she sent the boy for the pot of ale, robbed the house, and went off; and this being in the night-time, it

was adjudged that the prisoner was clearly guilty of burglary. By threats. A breaking may be also in law, as 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. — But where no fraud or conspiracy is made use of, or violence commenced or threatened, in order to obtain an entrance, there must be an actual breach of some part of the house, though it need not be accompanied with any violence as to the manner of

executing it. 2 East's P. C. 486. Cornwall's case. Joshua Cornwall was indicted with another person for burglary; By conspiracy, and it appeared that he was a servant in the house, 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: after which Cornwall opened the door and let him out, but did not go out with him. Upon the trial it was doubted whether this were burglary in the servant, he not going out with the other. But afterwards, at a meeting of all the judges at Serjeant's Inn, they were unanimously of opinion that it was burglary in both, and not to be distinguished from the case where one watches at the street end whilst another goes in and commits the burglary, which hath often been ruled to be burglary in both ; and accordingly Cornwall was executed. 2 Stra. 881. 19 Howell's St.

Tri. 782. (n.) 4 Blac. Com. 227. Breaking of in- In the case of a servant opening a door of his master's house side door by a for a felonious purpose, without any conspiracy with others, it

seems that the question whether such act amounts to a breaking must depend upon the point whether the door might have been opened by the servant in the course of his trust and employment. Thus, if a servant unlatch a door or turn a key in a door of his master's house and steal property out of the room, such opening of the door being within his trust, is not a breaking; but if a servant break open a door, either outward or inward (as a closet, study, or counting-house), such opening not being within his trust,


« PreviousContinue »