Johnston v. Commonwealth. gowns, and a horse saddled, and kept waiting near at hand; a pistol and dirk for defense or attack if necessary, and gags to silence those who might be in the bank. There was a completeness of preparation that marks the experienced and accomplished burglar. This was especially the case with Rolland, who appears to have cultivated pleasant social relations with many of the citizens of Chambersburg, and particularly with Mr. Messersmith, the cashier of the bank intended to be plundered. This enabled him to become familiar with the plan of Mr. Messersmith's house and banking-room. The evidence was abundant to justify the conclusion that the object of all this social intercourse was to throw the cashier off his guard. To further inspire confidence, Rolland gave him one or more sealed packages, represented to contain valuables, but which were of course but waste paper. It was a cunningly-devised scheme — planned with skill, and executed with boldness. It would have succeeded in all probability but for Mr. Messersmith's manly and stubborn resistance. This was probably unlooked for in view of the disposition of the modern cashier to hand over the keys upon demand. The defendant and his confederate having thus laid and matured their plans, the next step was to effect an entrance into the bank. Mr. Kindline states how this was done: "I reside in the bank with Mr. Messersmith; I was in bank on night of 24th of March last; I answered the call of the bell; between eight and nine o'clock that night a bell rang from the outside; I was in the main hall when the bell rang; it was then nighttime; the door was fastened with the dead-latch; it could not have been opened from the outside; I sprung back the dead-latch; I found two men there; one I recognized as Rolland; he asked me whether Mr. Messersmith was in; I said no, he had just walked out; he said he was sorry, that he had a friend from New York that wanted to transact some business with him, and he introduced a Mr. Johnston; defendant is the man; he said he would call later in the evening; I said it was a disagreeable evening, and Rolland said yes, we may have some sleighing yet; then they left. Shortly after Mr. Messersmith came; we talked in the parlor; I did not tell Mr. Messersmith that these parties had been there to see him; I went up-stairs, and Mr. Messersmith to his office; some time after, fifteen or twenty minutes, I heard the bell ring again; I answered it a second time; the dead-latch was down; the door was locked; it was at front door, leading from the street into the hall of the Johnston v. Commonwealth. house; I opened the door and found there Rolland and the man he had before introduced as Johnston; he asked me if Mr. Messersmith was in, and I said he was; they came in and put their hats on the rack; Johnston had an overcoat; took that off and hung it up; they had an umbrella this time; I led the way through the hall into the dining-room; they followed to Messersmith's office; I opened the door of the cashier's room, leading from the diningroom in, and saw Messersmith at the grate with his back toward the door." Was there evidence here of a constructive breaking? Of an entrance obtained by artifice and fraud, by means whereof Mr. Messersmith was deceived and the law evaded ? The court below said in answer to the defendant's fourth point: “If you believe that long before the 24th of March, 1876, Rolland had conceived the idea of entering the bank of Chambersburg with intent to rob or steal, and concocted a plan by which he might effect such purpose; that he cultivated the acquaintance of the cashier and placed himself on as familiar terms as he could with him and his family, and began to talk to him of the buying of farms, and finally stated that he had a friend whom he wished to have come to Chambersburg to reside, and spoke of the Stouffer farm and thought it was too small; and on the night in question presented himself with a friend, who he stated had some business with the cashier, and if you believe this was false and fraudulent and intended to obtain admission to the house, and that it was by means of this that Rolland and Johnston did in fact obtain admission into the house, then this was such a fraud as amounted to a constructive breaking. If Rolland, by frauds and tricks and artifices, deceived the cashier, and induced him to believe that he was concerned to buy a farm for a friend, and that if he would call at his house with such a friend it would be for that purpose, and that it was thus that he was received into the house, and the whole household was so deceived, and Kindline opened the door under the influence of Rolland's deceptions as to his true character and purposes, it was a constructive breaking." This ruling was not only free from error, but it was more favorable to the defendant than he was entitled to. It was laying an unnecessary burden upon the Commonwealth. If, when Rolland and Johnston rang Mr. Messersmith's bell, they did so with the intent of entering under the guise of friendship or the pretense of business, and then robbing the bank, it was a burglarious entry; it Johnston v. Commonwealth. was a breaking within the meaning of the law. Nor would it matter that one of the burglars had established such social relations with Mr. Messersmith that he would have been admitted without question. It makes the fraud the greater. The dead-latch was down and the door was locked. The bolts were withdrawn upon the implied if not express assurance that they came there as friends for social intercourse or to transact business. This assurance in either case was a trick and deception. The law is not so impotent as to permit a burglar to enter a house under such circumstances and yet evade the responsibility of his act. We are not asserting any new doctrine nor extending the application of an old one. The principle is fully sustained by the authorities cited in Rolland v. The Commonwealth, 1 Norris, 306; 22 Am. Rep. 758. In addition I will refer to Sharswood's Blackstone, vol. 2, p. 226; Wharton's Crim. Law, vol. 2, § 1539; Roscoe's Crim. Ev. 346; Bacon's Abr., title Burglary (A.), 133; Chitty's Crim. Law, vol. 3, p. 856, where numerous authorities are cited in support of the text. In Ducher v. The State, 18 Ohio, 317, the facts were these: Sarah Brown was living in the house with her son, John Ondery. On the night mentioned in the indictment they were awakened by some one knocking at the door; in answer to which John said, "Come in." The persons outside pulled the latch-string without being able to open the door, when they stated that they could not come in. John then got up and opened the door, when two men walked into the house. After they had entered one of them nearly closed the door and stood by it; the other stated that they had a warrant for John Ondery from the prosecuting attorney of Pickaway county. John asked for time to put on his clothes, and after he had done so, one of the men told him they wanted his money, and asked for his mother's money. John said it was in a chest. They told her to get the key which she did. They tried to open the chest, where John told them the money was, and being unable to do so, with threats of violence induced her to do it, and then took from the chest the money described in the indictment; held, that this was a constructive breaking under the Ohio statute, which provides against a forcible breaking and entering. It will be observed, in the case above cited, that the door was opened in obedience to a knock. Not a word was said by way of inducement to open it; yet it was a manifest trick and fraud. When a person rings a door-bell of a house, the owner has a right to presume that VOL. XXVII-79 Rolland v. Commonwealth. his visitor calls for the purpose of friendship or business. If, in obedience to the summons, he withdraws his bolts and bars, and the visitor enters to commit a felony, such entry is a deception and fraud upon the owner and constitutes a constructive breaking. [Omitting minor matters.] So much of the judgment of the Oyer and Terminer as imposed an imprisonment of six years and four months under the second count of the indictment is affirmed, and so much of the judgment as imposes imprisonment of three years and ten months under the third count of said indictment is reversed. Judgment reversed. ROLLAND V. COMMONWEALTH. (85 Penn. St. 66.) Criminal law-burglary — opening inner door. Opening the inner door of a dwelling-house, at night, with felonious intent, constitutes burglary, whether the felony is to be committed in the particular room or in another. IND NDICTMENT for burglary. The opinion sufficiently states the point. The prisoner was convicted. O. C. Bowers, district attorney, and John Stewart, for the Commonwealth. Duncan & McGowan and J. McDowell Sharpe, for plaintiff in error. To constitute burglary by opening an inner door, the intent must be to commit a felony in the very room into which entrance was thus effected. Edmond's case, Hutton, 20; 1 Hawk. P. C. 102; Rex v. Gray, 1 Strange, 481, 2 East's P. C. 488; State v. Wilson, 1 Coxe (N. J. L.), 441; U. S. v. Brown, 4 Cranch, 604; State v. Henry, 9 Ired. 471. PAXSON, J. This record presents but a single question. Was there such a breaking as constitutes felonious burglary? That the opening of an inner door may be such breaking is too well settled to need discussion. If a person leaves his doors or windows open, it is his own folly and negligence, and if a man enters therein, it is Rolland v. Commonwealth. no burglary; yet if he afterward unlocks an inner door or chamber door, it is so: Sharswood's Blackstone, vol. 2, p. 226. The same rule is asserted in Wharton's Criminal Law, vol. 2, § 1536; 1 Bishop's Cr. Law, 308; Roscoe, p. 302, and numerous authorities cited in which the point has been decided. It was conceded at bar that the law is so, but it was contended that in the case of the opening of an inner door, it must be accompanied with an intent to commit a felony in the very room so entered. We do not assent to this qualification of the common-law rule. If a burglar, entering by an outer door or window, incautiously left open, with the intent to commit a felony in a particular room in the house, as if he intends to rob a safe with the location of which he is familiar, and in furtherance of his design, and to enable him to accomplish it successfully, opens the door of the adjoining room in the same house to gag and bind the owner sleeping therein, it is a breaking within the meaning of the law defining the offense of burglary. Yet in such case there would be an entire absence of an intent to commit a felony in the bed-room. The binding of the owner, standing alone, would be a mere assault and battery, punishable as a misdemeanor. Taken in connection with the main object it assumes a different character, and becomes a necessary incident of the felony as much so as the lifting of a latch or the breaking of the door of the safe. The true test, as applied to an inner door of a house, is whether it was opened in the perpetration of or attempt to perpetrate the felony. If it was a necessary act in the perpetration of the felonious design, it can make no difference that the felony was to be committed in an adjoining room. There may be cases in which the qualification referred to would apply, as in the case of a lodger at an inn who intends to commit a felony in another room in the same house. But if such qualification exists in any case, we fail to see its application to the facts of the case at bar. We will not strain the law to meet a particular case, nor will we refine it away in the interest of burglars. We think the court below submitted the question of intention fairly to the jury. told that if the prisoner opened the door for the purpose of escaping, he could not be convicted of burglary; but if it was done in furtherance of a design to commit a felony in the house, the offense was complete. This ruling was clearly correct. They were [Omitting a statutory consideration,] the judgment is affirmed. Judgment affirmed. |