BURGLARY (Burgi latrocininni,) or nocturnal house breaking, in law, signifies an unlawful entering into the dwelling-house of another, in the night-time, with the in tention of committing some felony.
In burglary there are four things to be considered : the time, the place, the manner, and the intent.
1. The time must be night ; for the like offence com mitted by day is called house-breaking, to distinguish it from burglary, which is committ.d by night. Antient ly, the (lay was reckoned to begin only at sun-rising, and to end immediately at sun-set ; but the better opi nion seems to be, that if there be day-lig:it enough, begun or left, to enable one to discern a man's face, it is no burglary. But this principle does not extend to moon-light.
2. The place, according to Sir Edward Coke, must be a mansion-house ; and, therefore, to account for the reason why breaking into a church is burglary, he quaintly observes, that it is domus mansionalis Dci. But it does not seem absolutely necessary that it should, in all cases, be a ; for a burglary may be com mitted by breaking the gates or walls of a town by night. According to Spelman's definition, burglary is nocturna diruptio alicujus habitaculi, eel ecelesza, etiam murornm portarumve burgi, ad feloniani perpctrandam." And we may, therefore, conclude, that the requisite of its being domes niansionalis is only in the burglary of a private house. No distant barn, however, warehouse, or the like, are under the same privileges as a man's dwelling house ; nor empty houses, wherein no one resides. But burglary inay be committed in a house where a man sometimes resides, and %%hie!, the owner bath left for a short time, ammo revert end!; although no one should happen to be in it •t the period of committing the crime. A burglary may also be committed in the barn, stable, or warehouse, if they be parcel of the mansion-house, though not under the same root, or contiguous. A cham ber in a college or inn of court, where one usually lodges, is to all intents and purposes the mansion-house of the owner ; for every inhabitant bath a distinct property therein. So also is a room or lodging, in any private house, the mansion-house, for the time being, of the lodger, if the owner do not lihnsell live in the house, Or if he and the lodger enter by separate outward doors , otherwise, however, lodgers are considered only as in mates, and their chambers as parcel of the dwelling house of the owner. The house of a corporation is their mansion house, and not that of the respective officers who may inhabit its separate apartments. A shop hired for the purposes of work or trade, and not used as a dwelling, is not considered as a mansion-house, nor can a burglary be committed therein. Neither can burglary he committed in a tent or booth erected in a market or fair, even although the owner should lodge in it. The entering into the work-shops of the plate-glass manufac tory, with intent to steal the stock or utensils, is made single felony, and punished with transportation for seven years, by 13 Geo. III. c. 38.
3. With regard to the manner of committtng burgla ry, there must be both a breaking and an entry to com plete the offence. But it is not necessary that they should both take place at the same time ; for if a breach be made one night, and the same breakers enter through it the next night, they are burglars. In general, there must be an actual, and not merely an ideal breaking; such, at least, as breaking or taking out the glass, or otherwise opening a window ; picking a lock, or opening it with a key ; lifting up the latch, or unloosing any other fastenings of a door. But if doors or windows are negli
gently left open, and a man enters, it is no burglary, un less he afterwards unlocks an inner or chamber door. To come down a chimney is held to be a burglarious entry. if a man enters by an open door, and breaks open a chest, it is no burglary ; but it is so, if he breaks open a cupboard or other fixture. If a person knocks at a door, and upon its being opened, rushes in, with a felonious intent ; or, under pretence of taking lodgings, falls upon the landlord and robs him ; or procures a con stable to gain admittance, in order to search for traitors, and then binds the constable and robs the house : all these are deemed burglarious entries, although there be no actual breaking. So, likewise, if a servant opens and enters his master's chamber-door with a felonious de sign ; or if a person lodging in the same house or inn, opens and enters another's door with an evil ibtent. If a servant conspires with a robber, and lets him into his master's house by night. both are implicated in the crime. The least degree of entry with any part cf the body is sufficient to constitute a burglary ; such as stepping over the threshold, putting a hand or a hook in at a window to draw out goods, or a pistol to demand one's money. The entry may be before the breaking as wehi as after it ; for by statute 1'2 Ann. c. 7. if a person enter a the dwelling-house of another, by day or right, without break ing in, with intent to commit Molly, or being in the house, shall commit felony and then break out by night ; this is declared to be burglary. When several persons ome together, with a design to commit burglary, and one does it, while the others watc.i tear the house, the act of one is considered as the act of all.
4. The breaking and entering must be made with a felonious intent, otherwise the offence amounts only to a trespass. It is the same thing, however, whether the in tention be actually carried into execution, or only demon strated by some overt act.
Burglary is a felony at common law, but within the benefit of clergy. By the statutes I Edw. VI. c. 12. and 18 Eliz. c. 7'. however, clergy is taken away from the principals ; and by 3 and 4 William and Mary c. 9. from all accessaries before the fact. By the statute 10 and 11 William III. c. 23. any person who shall convict a bur glar shall be exempted from parish and ward offices where the offence was committed. To this exemption a reward of 401. is superadded by the statutes 5 Ann. c. 31. and 6 Geo. I. c. 23. If an accomplice, being out of prison, shall convict two or more offenders, he is enti tled to a pardon of the felonies enumerated in the act. And by the statutes 25 Geo. II. c. 36., 27 Geo. II. c. 3., and 18 Geo. III. c. 19., the charges of prosecuting and convicting a burglar shall be paid by the treasurer of the county where the burglary was committed, to the prose cutor and poor witnesses. The statute 23 Geo. III. c. 88. enacts, that any person who shall be apprehended, having upon him any pick-lock key, kc. or other imple ment, with intent to commit a burglary, shall be deemed a rogue and a vagabond within the statute 17 Gco. II. c. 5. And by the statute 10 Geo. III. c. 48. the buyers and receivers of jewels, gold, or silver plate, carried off in a burglary, may be tried and transported for fourteen years, before the conviction of the principal. Blackst. Comment. B. iv. ch. 16. ; Jacob's Law Diet. (z)