231; are several instances of actual break ing. But removing a loose plank in a par tition wall was held not a breaking ; Corn. v. Trimmer, 1 Mass. 476. According to the Scotch law, entering a house by means of the true key, while in the door, or when it had been stolen, is a breaking ; Alison, Pr. 284. See 1 Swint. Just. 433.
Constructive breakings occur when the burglar gains an entry by fraud; 1 Cr. & D. 202 ; Ducher v. State, 18 Ohio, 308 ; State v. Henry, 31 N. C. 463 ; 1Rolland v. Com monwealth, 82 Pa. 306 ; by conspiracy or threats ; 1 Russ. Cr. Graves ed. 792; 2 id. 2 ; State v. Rowe, 98 N. C. 629, 4 S. E. 506 ; by bribing a servant ; by knocking at the door, and, when opened, rushing in ; by gaining admittance on pretense of wishing to speak to some one within; by gaining ad mittance by threats; Odgers, Corn. L. 383. When one of three breaks and enters, an other watches at the door, and a third stands farther off to give notice if help comes, it is burglary in all; 1 Hale, Pl. Cr. 555.
Where one is let into a store in the night time on pretence of making a purchase and while in he unbolts a door and admits his accomplice, who secretes himself on the in side and afterwards steals, both may be convicted of breaking and entering; Com. v. Lourey, 158 Mass. 18, 32 N. E. 940. Where a window is slightly raised in the daytime so as to prevent the bolt from being effectual, it would not prevent the subse quent breaking and entering in the night time through the window from being bur glary ; People v. Dupree, 98 Mich. 26, 56 N. W: 1046. The breaking of an inner door of the house will be sufficient to constitute a burglary ; 1 Hale, PL Cr. 553; 8 C. & P. 747; People v. Fralick, Lalor's Sup. (N. Y.) 63; 2 Bish. Cr. Law § 97 ; or the opening of an inner closed door ; 2 East, P. C. 48; and it is not necessary that such breaking be ac companied with an intention to commit a felony in the very room entered ; Hart mann v. Com., 5 Pa. 66. Entry through an open door in the night-time with intent to steal is not burglary ; Costello v. State (Tex.) 21 S. W. 360.
Any, 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 committing a felony, will be sufficient to constitute the offence; Co.
3d Inst. 64 ; 4 Bla. Cem. 227; Bacon, Abr. Burglary (B); Corn. Dig. Justices, P, 4 ; Al len v. State, 40 Ala. 334. 91 Am. Dec. 477 ; Franco v. State. 42 Tex. 276; Com. v. Glov er, 111 Mass. 395; Harris v. People, 44 Mich. 305; 6 N. W. 677. Where a person enters a chimney of a storehouse intending to go down such into the store to steal, he is guilty of burglary; Olds v. State, 97 Ala. 81, 12 South. 409. But the introduction of an in strument, in the act of breaking the house, will not be sufficient entry unless it be in troduced for the purpose of committing a felony ; 1 Leach 406 ; 1 Mood. 183. The whole physical frame need not pass within ; 2 Bish. Cr. Law § 92 ; 1 Gabb. Cr. Law 176.
There was, at common law, doubt wheth er breaking out of a dwelling-house would constitute burglary; 4 Bla. Com. 227; 1 B. & H. Lead. Cr. Cas. 540 ; but it was de clared to be so by stat. 12 Anne, c. 7, § 3, and 7 & 8 Geo. IV. c. 29, § 11. The bet ter opinion seems to be that it was not so at common law ; Rolland v. Corn., 82 Pa. 324, 22 Am. Rep. 758; Whart. Cr. L. 9th ed. § 771; contra, State v. Ward, 43 Conn. 489, 21 Am. Rep. 665. As to what acts con stitute a breaking out, see 1 Jebb 99; 8 C. & P. 747 ; 1 Russ. Cr. (Graves ed.) 792; 1 B. & H. Lead. Cr. Cas. 540.
The intention. The intent of the break ing and entry must be felonious ; if a felony, however, be committed, the act will be pri ma facie evidence of an intent to commit it ; 1 Gabb. Cr. Law 192. gee Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756; State v. Scripture, 42 N. H. 485; People v. Young, 65 Cal. 225, 3 Pac. 813. See State v. Colter, 6 I. 195; Corn. v. Tuck, 20 Pick. (Mass.) 356; Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9. If the breaking and entry be with an intention to commit a trespass, or a mere misdemeanor, and nothing further is done, the offence will not be burglary ; Com. v. Newell, 7 Mass. 245; State v. Coop cr, 16 Vt. 551; People v. Urquidas, 96 Cal. 239, 31 Pac. 52; 1 Hale, Pl. Cr. 560.
See HAMOSOCNE; BREAKING; CREPUSCU L UM.
It need not appear that the ulterior felony was actually committed. And if a tramp enters for shelter and is tempted to steal, it is not burglary; Odgers, Corn. L. 384.