BURGLARY, crim. law. 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. 3 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38, s. 1; 4
Bl. Com. 224; 2 East, P. C. C. 15, s. 1, p. 484; 2 Russell on Cr. 2; Roscoe,
Cr. Ev. 252; Coxe, R. 441; 7 Mass. Rep. 247.
2. The circumstances to be considered are, 1. in what place the offence
can be committed; 2. at what time 3. by what means; 4. with what intention.
3.- 1. In what place a burglary can be committed. It must, in general,
be committed in a mansion house, actually occupied as a dwelling; but if it
be left by the owner animo revertendi, though no person resides in it in his
absence, it is still his mansion. Fost. 77; 3 Rawle, 207. The principal
question, at the present day, is what is to be deemed a dwelling-house. 1
Leach, 185; 2 Leach, 771; Id. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 558;
Hawk. c. 38, s. 18; 1 Russ. on Cr. 16; 3 Berg. & Rawle, 199 4 John. R. 424 1
Nott & M'Cord, 583; 1 Hayw. 102, 242; Com. Dig. Justices, P 5; 2 East, P.
4. - 2. At what time it must be committed. The offence must be
committed in the night, for in the day time there can be no burglary. 4 Bl.
Com. 224. For this purpose, it is deemed night when by the light of the sun
a person cannot clearly discern the face or countenance of another 1 Hale,
550; 3 nst. 63. This rule, it is evident, does not apply to moonlight. 4
Bl. Com. 224; 2 Russ. on Cr. 32. The breaking and entering need not be done
the same night 1 Russ. & Ry. 417; but it is necessary 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 will not be burglary. 1 Hale, 551;
2 Russ. on Cr. 32. Vide Com. Dig. Justices, P 2; 2 Chit. Cr. Law, 1092.
5.-3. The means used. There must be both a breaking and an entry.
First, of the breaking, which may be actual or constructive. An actual
breaking tal-,es place when the burglar breaks or removes ally part of, the
house, or the fastenings provided for it, with violence. Breaking a window,
taking a pane of glass out, by breaking or bending the nails, or other
fastenings, raising a latch where the door is not otherwise fastened;
picking open a lock with a false key; putting back the lock of a door or the
fastening of a window, with an instrument; turning the key when the door is
locked in the inside, or unloosening any other fastening which the owner has
provided, are several instances of actual breaking. 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. Alis. Pr. Cr. Law, 284. Constructive
breakings occur when the burglar gams an entry by fraud, conspiracy or
threats. 2 Russ. on Cr. 22 Chit. Cr. Law, 1093. The breaking of an inner
door of the house will be sufficient to constitute a burglary. 1 Hale, 553.
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. 3 Inst.
64; 4 Bl. Com. 227; Bac. Ab. Burglary, B Com. Dig. Justices, P 4. But the
introduction of an instrument, in the act of breaking the house, will not be
a sufficient entry, unless it be introduced for the purpose of committing a
6. - 4. The intention. The intent of the breaking and entry must be
felonious; if a felony however be committed, the act will be prima facie
evidence of an intent to commit it. If the breaking and entry be with an
intention to commit a bare trespass, and nothing further is done, the
offence will not be a burglary. 1 Hale, 560; East, P., C. 509, 514, 515; 2
Russ. on Cr. 33.
, breaking and entering
, unlawful entry