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a proper subject for capital punishment, by the opinion of all the judges.
In the indictment there must be the words, had a venereal affair and carnally knew, and consequently some kind of penetration, and emission is to be proved; but any the least degree is sufficient; and emission is prima facie evidence of penetration. }Hawk. c. 4. s. 2
Defined. Burglary.]—Burglary is a felony at the common law,inbrtak
ing undentering the mansion-house of another,or assome say, tbo ■walls, or gates of a walled town, in the night, to the intent it commit some felony within the same, whether the felonious «• tent be executed or not. I Hawk. c. 38. How punished. This offence has been punished like all other felonies, by hanging,since the following statutes, which oust the offenders of the benefit of their clergy. 1 Bacon's Abr. 336.
For by 1 Ed. 6. c. 12. *. 10, No person convicted of breaking of any house by night, any person being then in the same house; and thereby put in fear or dread; or being indicted or appealed of the same offences, and found guilty, or who shall confess the same, or will not answer directly, or shall stand mute (or challenge peremptorily above twenty, 3 & 4 Will.lt Mar. c. 9, *. 2), shall not be admitted to the benefit of clergy. And such offenders are also excluded the benefit of clergy, whether any person were in the house at the time or not; for it is enacted in general, by 18 Eliz. c. 7, that if any person shall commit any burglary, and be found guilty by verdict, or shall be outlawed, or shall confess such burglary, such person shall suffer death, and forfeit as in cases of felony, without benefit of clergy. *. 1. Accessaries l>e- Also by 3 & 4 Will. Sf Mar. c. 9, Every person who shall *" counsel, hire, or command any person to commit any burglary,
being thereof convicted or attainted, or being indicted, and . standing mute, or challenging peremptorily above twenty, shall not have his clergy, s. 1. What breaking In brcuking.~\ One who comes down by a chimney, who will constitute opens a window, or breaks the glass thereof, unlocks a door,or the offence. draws a latch of a door, is guilty of breaking the house, as mncli as if he had actually forced open the door, or had broken a hole the wall. Hale's PI, C. 80. 3 Inst. 64. 1 Hawk. c. 38. *. 4. Also, if one assault a house «ith an'intent to rob it, and the owner of the house, in order to drive him away, opens the door, and he thereupon enters, he is guilty of breaking the house. Crompton's Jus. 32. 1 Hawk. c. 38. s. 4.
And if persons coming to an house with intent to rob if, arc let in, under a pretence of business with the owner, and then rifle the house; or if persons, having such a felonious intent, take lodgings in a house, and then fall on the landlord md rob him; or if persons, having such intent, raise an hue and cry, and prevail on the constable to search the house, and being let in by that means bind the constable and rob; in these casts, the offenders have been adjudged guilty of burglary. 1 Haak. c. 38. *. 5.
And it is burglary for one who enters by an open door, or Jiti in a house by the owner's consent, to unlatch a chamber door, with a felonious intent; so if a servant draws the latch of the chamber-door in which his master lies, with an intent to nurderhim. 1 llazck. c. 38. t. 4. 1 Bacon's Abr. 333.
And by 12 Ann. stat. 1. c. 7, after reciting, "Jhat there had been some doubt, whether the entering into a mansion-house without breaking the same, with an intent to commit some felony, and breaking the same house in the night time, to get out, «cie burglary; it is thereupon declared and enacted, that if wy person shall enter into the mansion or dwelling house of soother, by day or by night, without breaking the same, with an intent to commit felony, or being in such a house, shall com. . .
mitany felony, and shall in the night-time break the said house to get out of the same; such person is and shall be taken to bo guilty of burglary, and ousted of the benefit of clergy, in the same manner as if such person had broken and entered the said touse in the night-time to commit feloDy there.
But if one enter into a house by a door which he finds open, or through a hole which was made there before, and steal goods, or draw any thing out of a house through a window or door which was open before, or enter into a house by the doors open in the day-time, and lie there till night, aud then rob and go »*ay, without breaking any part of the house, he is not guilty ofbnrglary; and therefore such breaking, as is implied by law in every unlawful entry on the possession of another, whether it lie open or be inclosed, though it will maintain a common indict. moot, or action of trespass quare clausumfregit, will not satisfy tie words felonice et burglariter jregit. 1 Haak. c. 38. *. 4. Cupboards, presses, lockers, and other fixtures of the like kind, which merely supply the place of chests, and other ordi* nary utensils of household, should be considered in no other l^ht than as mere moveables, partaking of the nature of these utensils, and adapted to the same use; and therefore the break. open a chest in the house, or the door of a cupboard, let into the wall of an house, is not burglary. Foster's Cr. L. 108, 109.
And entering.] Any the least entry, either with tho whole What mtrj or but with part of the body, or with any instrument or wea- sufficient, pon, will be sufficient to constitute burglary; as if one do but put his foot over a threshold, or his hand, or a hook or pistol within a window, or turn the key, of a door which is locked on the inside, or discharge a loaded gun into a house. 1 Hawk, «• 33. t. J.
B'it where thieves, having bored a hole through the door with an instrument called a centre bit, and part of the chips were found in the in-ide of the house; though this was admitted to be a sufficient breaking, yel, as there must be both a breaking and an entering, to constit ite the crime of burglary, and the thieves having neither got in themselves, nor introduced a han I or instrument, for the purpose of stealing the property, the entry was rule! incomplete. Leach's Cases in Cr. L. 312, 313.
Also in some cases an entry in law is sufficient, though there be no actual entry; as where divers come to commit a bur. glary, and some s'and to vtatch in adjacent places, and the others enter and r.b; lor in all such cases, the act of one is in judgment of law the act of all. I Hawk. c. 38. s. 8.
And Iijioii tiiis principle, it has been determined by all the judges, that a servant who confederating with a rogue, lets him in to rob a house, is guilty ol a burglary *. 2 Strange 8S1. Th* nit h* There must be both a breaking and an entry; for, according K.iiialjrc..kiiie '<» Hate, breaking wifhotit entering, or entering without break, and >.mij. ing, makes not burglary; and therefore if, on a bare assault upon a house, the owner fling out his money, it is Bo burglary. 1 Hale a 50. I Hawk. c. 38. s. 3I»whntplHce ^'/,e mansion hou*e.~\ According to the constant course of thisoffeiice muy late precedents and opinions, it seems necessary to have the t* commuted, word mansion .lis (dwelling, hour) in the indictment; and therefore that the offence can be only committed in a dwellinghouse. 1 Bacon's Abr. 335. 1 Hawk. c. 38. s. 10.
But it is agreed, thai biirg'ary may be committed in churches', for the general tenor of the books seems to be, that burglary may be committed in breaking houses or churches, or the zcaUl or gates <>f a tuzen. I Hank. v. 38. s. 10.
A house which a man dwells in hut for part of a year, or ■which he has hired to live in, and brought part of bis goods into, but has not yel lodged in, or which his wife haj hired, though without his privity, and livos in without him, »ill •atisfy the words dwelling-house in an indictment of burglary, though no peison were in at the time of the offence. 1 JIask. , c. 38. s. 11.
Also all outbuildings, as barns, stables, dairy-houses, and the like, adjoining to a house, are looked upon as part thereof, and consequently burglar) may be committed in them; but if
• The case was thus.: two prisoners were indicted for burglary ; and il epw." i d in evidence, iliat one being a servant in the li»u»e, which w»» robbed, in tlii: niglit-limc opened the street-door, mid lei in ihe oilier I* then si ewecl him ihe side-hoard, from whence such oth* r prisoner look the plate: the servant ihrn opened the door and In him out, but did liol i* OUl with biro, but iveul lo bed.
tltcy be removed at any distance from the house *, it seems that it has not been usual of late to proceed against ofl'cuces therein as burglaries, l Hawk. c. 38. *. 12.
And where a person left his country-house, and disfurnished . partofit, without any settled resolution of returning, but rather inclining to the contrary: the court held, it could not under these circumstances be deemed his dwelling house; but where the owner (juitteth the house, with an intention of returning, as some families do in the summer, it may still be considered as his mansion-house, though no person be left in it; but there must be an intention of returning, otherwise burglary cannot be com. mittcd therein. Foster's Cr. L. 7G. 77.
If several persons dwell in one house, as servants, guests, tenants at will, or otherwise, having no fixed and certain interest in any part thereof, and a burglary be committed in any ot their apartments, the indictment must lay the offence in the mansion-house of the proprietor. 1 Ilitzsk. c. 38. s. 13.
Thus where a burglary was committed in the apartments bf a servant to the African company, it was ruled that the indictment should charge the offence to be committed in the mansion-house of the company. Foster's Cr. L. 3S, 39.
But a chamber in one of the inns of court, wherein a person usually lodges, or a lodging in a part of a house, actually di« vided from the rest of the house, and having a door of its own to the street, are agreed to be called properly mansion-houses* 1 Haxk. c. 38. s. 13.
However if inmates have several rooms in a house, of which rooms they keep the keys, and inhabit them severally with their families, yet if they enter into the house at one outer door with the owner, these rooms cannot be said to be the dwelling-houses of the inmates; but the indictment ought to be for breaking the houst^of the owner. Leach's Cas. Cr. L. 91. n.
But if the owner inhabit no part of the house, or even if he occupy a shop or a cellar in it, but do not sleep therein, the apartments of lodgers shall be considered as their respective dwelling houses. Rogers's Case, Leach's Cr. L. 90."
Burglary cannot be committed in a shop or workhouse which K leased to one for his use in the day time only, and who never Indies there. I Hawk. c. 38. s. 16; but it is larceny. 1 Hale's Hist. 557, 558.
Nor in a ground inclosed, nor in a booth \ or tent. 1 Hawk. t. 38. *. 17.
In the night.'] Burglary may be committed at any time after sun set, and before sun-rising *; but it seems that the word noctanter, which is precisely necessary in every indictment for this offence, cannot be satisfied in a legal sense, if it appear upon the evidence that there was so much day light at the time, that a man's countenance might be discerned thereby. 1 Hash, c. 38. ). I.
But this doth not extend to moonlight; for then many midnight burglaries would go unpunished; and besides the malignity of the offence doth not so properly arise from its being done in the dark, as at the dead of night; when all the creation, except beasts of prey, are at rest, vt hen sleep has disarmed the owner, and rendered his castle as it were defenceless. 4 BlackCorn. 224.
The hour must also be set forth in the indictment.
Willi intent to commit felony.'] The indictment must also allege, and the verdict find, an intention to commit some felony; for if it appear that the offender only meant to commit a trespass, as to beat the party or the like, he is not guilty of burglary. 1 Haick. c. 38. J. IS.
But it seems that an intention to commit mnrder, ortocoffl« mit a tape, or such other crime, which was a trespass only at law, aud is made felony by statute, will make a man guilty of burglary, as much as it such offence were a felony at common law; because whenever a statute makes any offence felony, it incidentally gives it all the properties of felony at the common law. 1 Hav>k. c. 38. *. 19.
And it is not material whether the felonious intent be executed or not; the breaking and entering in tli.e night time, although no robbery is committed, is sufficient to constitute tot crime of burglary,
And where a man commits burglary, and at the same tin* ■teals goods out of, the house, fl is also larceny; and if he be acquitted of the burglary, he may ..notwithstanding! be indicted of the larceny; for they are several offences, though committed at the same time; and burglary may be, where there is no larceny; and larceny may be, where there is no burglary, 8 Hate's Hist. 246.
Warrant to apprehend a burglar.
tlemnn, hath this day made complaint upon oath befor* m - ■ one of his majesty's justices of peace in and for tit saii.