BURGLARY, at common law, the break ing and entering the house of another in the nighttime, with intent to commit a felony therein, whether the felony be actually commit ted or not. Burglary at common law, and in its first degree in the statutes of the various States, must, in general, be committed in a mansion-house actually occupied as a dwelling, but if it be left by the owner anima reverlendi, though no person resides in it in his absence, it is still his mansion. But at common • law burglary may be committed in a church. In New York (Penal Code § 496), and in some other States in which the New York statute has been adopted, burglary at common law, or in the first degree, must be committed in the night, but in New York and in some other States burglary in the second and third degrees may be committed in the daytime, and it is burglary in the third degree in New York feloniously to enter a building, whether inhab ited or not, either in the daytime or night. Be
fore the offense is complete there must be both a breaking and an entry or an exit. An actual breaking takes place when the burglar breaks or removes any part of the house, or the fasten ings provided for it, with violence. Construct ive breakings occur when the burglar gains an entry by fraud, conspiracy or threats. The least entry, with the whole or any part of the body, hand or foot, or with any instrument or weapon, introduced for the purpose of commit ting a felony, will be sufficient to constitute the offense. Burglary is a felony in all of the States, and in North Carolina it may be pun ished with death or imprisonment. In New York it is punishable as follows: Burglary in the first degree, imprisonment for not less than 10 years; second degree, not exceeding 10 years; third degree, not exceeding five years.