broken one night, and the same breakers enter the next night through the same, they are burglars. There must, in general, be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption. As at least by breaking, or taking out the glass of, or otherwise opening, a window, picking a lock, or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner has provided. But, if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein, it is no burglary: Yet if he afterwards unlocks an inner or chamber door, it is so. But, to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit. So also to knock at a door, and, upon opening it, to rush in, with a felonious intent; or, under pretence of taking lodgings, to fall upon the landlord, and rob him; or, to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking: For, the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process. So, if a servant opens and enters his master's chamber door, with a felonious design; or, if any other person lodg ing in the same house, or in a public inn, opens and enters another's door, with such evil intent, it is burglary. Nay if the servant conspires with a robber, and lets him into the house by night, this is burglary in both: For the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease, rather aggravates than exte nuates the guilt. 4 Bl. Com. 226. Ibid. 4 Bl. Com. 227. As for the entry, any the least degree of it, with any part Ibid. of the body, or with an instrument held in the hand, is sut ficient: As, to step over the threshold, to put a hand or a 4 Bl. Com. 227. Ibid. Stat. 1805, e, 101, sec. 1. hook in at a window to draw out goods, or a pistol, to demand one's money, are all of them burglarious entries. The entry may be before the breaking, as well as after: For by statute 12 Ann. c. 7, if a person enters into the dwelling house of another, without breaking in, either by day or night, with intent to commit felony, or, being in such house, shall commit any felony; and shall in the night break out of the same, this is declared to be burglary; there having been different opinions concerning it: Lord Bacon holding the affirmative, and Sir Matthew Hale the negative. But it is universally agreed that there must be both a breaking, either in fact or by implication, and also an entry, in order to complete the burglary. 4. As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwise it is only trespass. And it is the same, whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, a murder, a rape, or any other felony, is burglary; whether the thing be actually perpetrated or not. Nor does it make any difference, whether the offence were felony at common law, or only created so by statute; since that statute, which makes an offence felony, gives it incidentally all the properties of a felony at common law. II. Of the punishment of burglary by statute. It is provided, 1. That if any person, with intent to kill, rob, steal, commit a rape, or to do or perpetrate any other felony, shall in the night time break and enter, or having, with such felothe burglar is armed nious intent, entered, shall in the night time break a dwellweapon, or commits ing house, any person then being lawfully therein, and such Punishment where with a dangerous an assault on some in the house. person lawfully with- Offender being, at the time of such breaking or entering, armed with a dangerous weapon, or arming himself or her self, in such house, with a dangerous weapon, or committing an actual assault upon any person lawfully being in such house; every such offender, and any person present, aiding, assisting, or consenting in such burglary, or accessory thereto before the fact, by counselling, hiring, or procuring such burglary to be committed, who shall be duly convicted thereof in the supreme judicial court, shall suffer the punishment of death. Ibid. sec. 2. Punishment where thus armed, or does sault. 2. If any person, with intent to kill, rob, steal, commit a rape, or to do or perpetrate any other felony, shall, in the night time, break and enter, or having, with such felonious the burglar is not intent, entered, shall in the night time break a dwelling not commit such ashouse, without being armed with a dangerous weapon, or without arming himself or herself, in such house, with a dangerous weapon, and without committing an assault upon any person lawfully being in such house; every such offender, and every person present, aiding and abetting in such burglary, or accessory thereto before the fact, by counselling, hiring, or procuring such burglary to be committed, who shall be duly convicted thereof in the supreme judicial court, shall be punished by solitary imprisonment for such term, not exceeding two years, as the justices of the said court, before whom the conviction may be, shall sentence and order, and by confinement afterwards to hard labour for life. For the punishment of accessories after the fact, the reader is referred to title ACCESSORIES, p. 45. III. Punishment for breaking and entering in the day time; or entering, in the night time, without breaking, any house, shop, vessel, &c. with a felonious intent. If any person, with intent to kill. b, steal, or to do or perpetrate any other felony, shall in the night time enter, without breaking, or in the day time break and enter, any dwelling house, or any outhouse thereto adjoining and occupied therewith, or any office, shop, or warehouse, or any ship or vessel lying within the body of a county; Ibid. s. 4. eyery such offender, and every person present, aiding or abetting in the commission of such offence, or who shall have counselled, hired, or procured the same to be committed, being thereof duly convicted in the supreme judicial court, shall be punished by solitary imprisonment, for such term, not exceeding six months, and by confinement afterwards to hard labour, for such term, not exceeding three years; or by a fine, not exceeding five hundred dollars, and imprisonment in the common goal, not exceeding three years; as the justices of the said court, before whom the conviction may be, shall sentence and order, according to the aggravation of the offence. NOTE. At common law, the breaking and entering a church in the night time, with intent to commit a felony, is burglary. 4 Bl. Com. p. 224. But by our statute of larcenies, 1804, c. 143, s. 6, such breaking and entry of a church in the night time, and committing a larceny therein, subjects the offender to solitary imprisonment, and confinement to hard labour. TITLE XXXII. IN CERTIORARI. England, writs of certiorari are usually had to certify 4 Bl. Com, 320, 321. and remove any record or other proceeding, as well upon indictment as otherwise, from any inferior court of criminal jurisdiction into the court of king's bench: And this is frequently done for one of these four purposes; either, 1. To consider and determine the validity of appeals or indictments, and the proceedings thereon; and to quash or confirm them as there is cause: Or, 2. Where it is surmised, that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the bar of the court of king's bench, or before the justices of nisi prius : Or, 3. It is so removed, in order to plead the king's pardon there: Or, 4. To issue process of outlawry against the offender, in those counties or places where the process of the inferior judges will not reach him. Such writ of certiorari, when issued and delivered to the inferior court supercedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal; unless the court of king's bench remands the record to the court below, to be tried there and determined. Ibid. Ibid. A certiorari may be granted at the instance of either the Ibid. prosecutor or the defendant: The former as a matter of right, the latter as a matter of discretion; and therefore it is seldom granted to remove indictments from the justices of gaol delivery, or after issue joined, or confession of the fact, in any of the courts below. Thus much as to the English law respecting this writ. |