BURGLARY. The breaking and entering the house of another in the night-time, with intent to commit a felony therein, whether the felony be actually committed or not. Co. 3d Inst. 63; 1 Hale, Pl. Cr. 549; 1 Hawk. Pl. Cr. c. 38, s. 1; 4 Bla. Com. 224; 2 Russ. Cr. 2; State v. Wilson, 1 N. J. L. 441, 1 Am. IDeC. 216 ; Cora. v. Newell, 7 Mass. 247; 1 Whart Cr. L. (9th ed.) § 758; Allen v. State, 40 Ala. 334, 91 Am. Dec. 477.
In what place a burglary can be commit ted. It must, in general, be committed in a mansion-house, actually occupied as a dwell ing ; but if it be left by the owner animo re vertcndi, though no person resides in it in his absence,' it is still his mansion; Post. 77; Com. v. Brown, 3 Rawle (Pa.) 207; Com. v. Barney, 10 Cush. (Mass.) 478. See DWELL ING-HOUSE. But burglary may be committed in a church, at common law. And under the statutes of some of the states, it has been held that it could be committed in a store over which were rooms in which the owner lived; Quinn v. People, 71 N. Y. 561, 27 Am. Rep. 87. A shoeshop in a room connected with the dwelling is it part of it; People v.. Dupree, 98 Mich. 26, 56 N. W. 1046; a wheat house; Bass v. State, 1 Lea (Tenn.) 444; a railroad depot; State v. Bishop, 51 Vt. 287, 31 Am. Rep. 690; a stable; Orrell v. People, 94 Ill. 456, 34 Am. Rep. 241; but not a mill house, seventy-five yards the owner's dwelling, and not shown to be appurtenant; 3 Cox 581; Co. 3d Inst. 64. It must be the dwelling-house of another person; 2 Bish. Cr. Law § 90 ; East, Pl. Cr. 502. A store house in which a clerk sleeps to protect the property is a dwelling; State v. Pressley, 90 N. 'C. 730; U. S. v. Johnson, 2 Cra. C. C. 21, Fed. Cas. No. 15,485.
At what time it must be committed. The offence must be committed in the night ; for in the daytime there can be no bur glary ; 4 Bla. Com. 224; 1 C. & K. 77 ; Lewis v. State, 16 Conn. 32; State v. Bancroft, 10 N. H. 105. For this purpose it is deemed night when by the light of the sun a person cannot clearly discern the face or counte nance of another; 1 Hale, Pl. Cr. 550 ; Co. 3d Inst. 62; 1 C. & P. 297 ; 7 Dane, Abr. 134. This rule, it is evident, does not apply to moonlight ; 4 Bla. Com. 224 ; 2 Russ. Cr. 32 ; State v. Bancroft, 10 N. H. 105; Thomas v. State, 5 How (Miss.) 20; State v. Mc
Knight, 111 N. C. 690, 16 S. E. 319. The breaking and entering need not be done the same night ; 1 R. & R. 417 ; but it is neces sary that the breaking and entering should be in the night-time ; for if the breaking be in daylight and the entry in the night, or vice versa, it is said, it will not be burglary; 1 Hale, Pl. Cr. 551; 2 Russ. Cr. 32. But guccre, Wilmot, Burgl. 9. See Corn., Dig. Justices, P, 2 ; 2 Chit. Cr. Law 1092. In some states by statute the breaking and en tering in the daytime with intent to commit a misdemeanor or felony is burglary; State v. Miller, 3 Wash. 131, 28 Pac. 375; State v. Hutchinson, 111 Mo. 257, 20 S. W. 34.
The means used. There must be 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 fastenings provided for it, with violence ; 1 Bish. Cr. Law 91. Breaking a window, taking a pane of glass out, by breaking or bending the nails or other fastenings; 1 C. & P. 300; 9 id. 44; 1 R. & ',R. 341, 499; Walker v. State, 52 Ala. 376; cutting and tearing down a netting of twine nailed over an open window ; Com. v. Stephenson, 8 Pick. (Mass.) 354; Sims v. State, 136 Ind. 358, 36 N. E. 278; raising a latch, where the door is not otherwise fastened; 8 C. & P. 747; Coxe 439; Curtis v. Hubbard, 1 Hill (N. Y.) 336 ; State v. Newbegin, 25 Me. 500; Bass v. State, 1 Lea (Tenn.) 444 ; Tim-, mons v. State, 34 Ohio St. 426, 32 Am. Rep. 376; State v. O'Brien, 81 Ia. 93, 46 N. W. 861 ; picking open a lock with a false key ; putting back the leek of a door, or the fast ening of a window, with an instrument; lowering a window fastened only by a wedge or weight; 1 R. & R. 355, 451; State v. Moore, 117 Mo. 395, 22 S. W. 1086; Walker v. State, 52 Ala. 376 ; or opening a door when not locked or bolted; Grimes v. State, 77 Ga. 762, 4 Am. St. Rep. 112 ; contra, Williams v. State (Tex.) 13 S. W. 609; State v. Reid, 20 Ia. 413; Timmons v. State, 34 Ohio St. 426, 32 Am. Rep. 376; People v. Nolan, 22 Mich. 229 ; Carter v. State, 68 Ala. 96; Lyons v. People, 68 Ill. 271; turn ing the key when the door is locked in the inside, or unloosing any other fastening which the owner has provided; lifting a trap-door ; 1 Mood. 277; but see 4 C. & P.