other in the same building with felonious intent, 15 or for a guest or lodger in a hotel or boarding or lodging house to break and enter the room of another guest or lodger, with felonious intent.16 And a servant may be guilty of burglary in entering a house or room which he has a right to enter by virtue of his employment, if he enter with intent to commit a felony.17 Likewise, if he has no right to enter the particular place,18 or at the particular time.10 § 474. Occupant's consent to the entry. There can be no breaking, so as to constitute burglary, if the occupant of a house consents to the entry.20 For this reason there is no breaking, and therefore 15 Mason v. People, 26 N. Y. 200; People v. Bush, 3 Park. Cr. (N. Y.) 552. 16 Holland v. State, 47 Tex. Cr. 623, 85 S. W. 798; State v. Clark, 42 Vt. 629. So it was decided in England with respect to chambers in a college or inn of court. 1 Hale P. C. 556. 17 Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9; State v. Howard, 64 S. C. 344, 42 S. E. 173, 58 L. R. A. 685; Rex v. Gray, 1 Strange, 481. Nor In Texas the statute provides that an entry into a house by a domestic servant or other inhabitant of the house for the purpose of committing theft is not burglary unless there is an actual breaking. A boarder who steals from the room of another boarder does not come within this provision. Ullman v. State, 1 Tex. App. 220, 28 Am. St. Rep. 405. does a tenant whose residence was about half a mile from the burglarized house, and who did not work around the house but sometimes worked about the owner's store. Williams v. State, 65 Tex. Cr. 82, 143 S. W. 634. Nor a servant whose employment is outdoors and not in the house. Williams v. State, 41 Tex. 649; Wakefield v. State, 41 Tex. 556; Williams v. State, 65 Tex. Cr. 82, 143 S. W. 634. And a person employed to clean the corridors in a hotel is not a domestic servant in relation to a saloon in the same building and under the same management, where he has no duties to perform in the saloon. Jackson v. State, 43 Tex. Cr. 260, 64 S. W. 864. 18 Colbert v. State, 91 Ga. 705, 17 S. E. 840. In Hild v. State, 67 Ala. 39, it was held to be burglary for an employee, who was left in charge of a house, to break and enter a room which he had no right to enter by virtue of his employment. 19 A person employed as delivery boy, who has no authority in the house at night, may be guilty where he breaks into the house at night. Connor v. State, 85 Tex. Cr. 98, 210 S. W. 207. In Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9, it was held that a servant or office boy of an attorney, intrusted with the key to the office, adjoining which the attorney slept, was guilty of burglary in opening the door at night, and entering with felonious intent, if he did not sleep there, and was not called there at night by his duties. 20 Lyons v. People, 68 Ill. 271; Russel v. State, 86 Tex. Cr. 580, 218 S. W. 1051; Turner v. State, 24 Tex. App. 12, 5 S. W. 511. no burglary, where the occupant, or his servant by his direction or authority, or acting by direction of the police, opens the door for the purpose of entrapping one whom he suspects of an intention to commit a burglary.21 But merely to lie in wait is not consent.22 And, as we have seen, there is a constructive breaking where the occupant is induced to open the door by trick or fraud, or by threat of violence, and where the door is opened by a servant, and a confederate admitted.23 And in states where no breaking is required to constitute the offense,24 it has been held that a person who, with intent to steal, enters a store during business hours, when it is open to the public, through the open door and in the ordinary way, is guilty of burglary, and that, in view of such intent, it cannot be said that he enters with the owner's consent or upon his invitation.25 § 475. The entry. To constitute burglary, it is essential that there shall be an entry as well as a breaking. To break open a door or window with intent to enter and commit a felony is not burglary, if no entry is in fact made, but is merely an attempt to commit burglary 26 The slightest entry, however, is sufficient, if it be with felonious intent. It need not be of the whole body, but may be of the hand, or foot, or head, or even a finger only.27 Indeed, it need not be of any part of the body, but an entry may be made by an instrument, where the instrument is inserted for the purpose of committing the felony, as by a gun for the purpose of murder, or a hook for the purpose of stealing, and the like.28 But the mere intrusion of an instru 21 See § 187, supra. 22 See § 187, supra. 23 See § 468, supra. 24 See § 463, supra. 25 Pinson v. State, 91 Ark. 434, 121 S. W. 751; People v. Brittain, 142 Cal. 8, 75 Pac. 314, 100 Am. St. Rep. 95; People v. Barry, 94 Cal. 481, 29 Pac. 1026. 261 Hale P. C. 555; 1 Hawk. P. C. c. 38, § 3; State v. McCall, 4 Ala. 643, 39 Am. Dec. 314; Gaddie v. Com., 117 Ky. 468, 78 S. W. 162, 111 Am. St. Rep. 259; Reg. v. Meal, 3 Cox C. C. 70; Anon., 1 Dyer 99a, pl. 58; Rex v. Rust, 1 Moody C. C. 183; and other cases cited in the following notes. 271 Hale P. C. 555; 1 Hawk. P. C. c. 38, § 7; Fisher v. State, 43 Ala. 17; Com. v. Glover, 111 Mass. 395; Franco v. State, 42 Tex. App. 276; Nash v. State, 20 Tex. App. 384, 54 Am. Rep. 529; Resolution of Judges, And. 114; Rex v. Perkes, 1 Car. & P. 300; Reg. v. O'Brien, 4 Cox C. C. 398; Gibbon's Case, Fost. C. L. 107, 2 East P. C. 490; Rex v. Davis, Russ. & R. 499; Rex v. Bailey, Russ. & R. 341. 28 1 Hale P. C. 555; 1 Hawk. P. C. c. 38, §7; Walker v. State, 63 Ala. 49, 35 Am. Rep. 1; State v. Crawford, 8 N. D. 539, 80 N. W. 193, 46 L. R. A. 312, 73 Am. St. Rep. 772; Resolution of Judges, And. 114. In Walker v. State, 63 Ala. 49, 35 Am. Rep. 1, and State v. Crawford, ment employed to break is not sufficient where, as used, it is without capacity to aid otherwise than by opening a way of entry, and must be used in another way, or another instrument must be used, to consummate the criminal intent.29 Breaking the outer blinds of a window and inserting the hands or an instrument for the purpose of breaking the sash has been held not to be a sufficient entry.30 But breaking a pane of glass in a window, and introducing the hand for the purpose of undoing the latch so as to raise the window, has been held to be sufficient, though there are inside shutters which are not opened.31 And pushing up a trapdoor has been held sufficient though only the hand entered.82 And there is a sufficient entry where a man comes partly down a chimney, though he may not be able to get all the way down, and may not succeed in getting into any of the rooms.3 Shooting into a house from the outside without putting the gun into the house is not burglary,34 unless made so by statute.35 § 476. Time of breaking and entry. The breaking and the entry, to constitute burglary at common law, must both be in the nighttime, and this must be proved.36 But it is not necessary that both shall 8 N. D. 539, 80 N. W. 193, 46 L. R. A. 312, 73 Am. St. Rep. 772, the accused, with intent to steal grain, bored a hole through the floor of a granary from the outside, and thus drew the grain into a sack below. It was held that the entry of the auger was suffi cient, and that he was guilty of burglary. 29 Walker v. State, 63 Ala. 49, 35 Am. Rep. 1; State v. Crawford 8 N. D. 539, 80 N. W. 193, 46 L. R. A. 312, 73 Am. St. Rep. 772. And see § 465, supra. 30 State v. McCall, 4 Ala. 643, 39 Am. Dec. 314; Minter v. State, 71 Ark, 178, 71 S. W. 944; Gaddie v. Com. (Ky.), 78 S. W. 162. And in Rex v. Rust, 1 Moody C. C. 183, it was held that throwing up a window, and introducing an instrument between the window and an inside shutter, to force open the shutter, was not a sufficient entry, unless the hand, or some part of it, was within the window. See also Rex v. Roberts, 2 East P. C. 487. 31 Rex v. Bailey, Russ. & R. 341. See also Franco v. State, 42 Tex. 276. 32 Nash v. State, 20 Tex. App. 384, 54 Am. Rep. 529. 33 Olds v. State, 97 Ala. 81, 12 So. 409; Donohoo v. State, 36 Ala. 281; Rex v. Brice, Russ. & R. 450. 34 Resolution of Judges, And. 114. See 1 Hale P. C. 555. 35 In Texas the statute provides that an entry may be committed by the discharge of firearms or other deadly missile into a house with intent to injure any person therein. Nalls v. State, 87 Tex. Cr. 83, 219 S. W. 473; Shackelford v. State, 83 Tex. Cr. 371, 203 S. W. 600. 36 4 Bl. Com. 224; 1 Hale P. C. 549, 550. occur on the same night.37 And it has been held to be burglary where a window through which the entry is made is raised a fraction of an inch in the daytime, so as to prevent the bolt from catching, and on the following night is raised enough to permit the entry.38 And also where a breaking and entering for the purpose of committing larceny takes place in the nighttime, although the property stolen is not taken out of the building until after daylight.39 At common law the nighttime, for the purpose of burglary, does not begin until after sunset and ceases when, there is daylight enough to discern a man's countenance thereby.40 In England and in some New Jersey. Downs v. New Jersey Fidelity & Plate Glass Ins. Co. of Newark, 91 N. J. L. 523, 103 Atl. 205, L. R. A. 1918 D 513. North Carolina. State V. McKnight, 111 N. C. 690, 16 S. E. 319; State v. Whit, 4 Jones 349. Ohio. Adams v. State, 31 Ohio St. 462. Utah. State v. Richards, 29 Utah 310, 81 Pac. 142. Virginia. Com. v. Weldon, 4 Leigh they may so infer. People v. Dupree, 98 Mich. 26, 56 N. W. 1046; Metz v. State, 46 Neb. 547, 65 N. W. 190; State v. Bancroft, 10 N. H. 105; State v. Richards, 29 Utah 310, 81 Pac. 142. 37 A breaking on one night and an entry on the next or a still later night is sufficient. 1 Hale P. C. 551; Rex v. Jordan, 7 Car. & P. 432; Rex v. Smith, Russ. & R. 417. See also Com. v. Glover, 111 Mass. 395. 38 People v. Dupree, 98 Mich. 26, 56 N. W. 1046. 39 People v. Gibson, 58 Mich. 368, 25 N. W. 316. 404 Bl. Com. 224; 3 Coke Inst. 63; 1 Hale P. C. 550, 551; 1 Hawk. P. C. c. 38, § 2. See also the following decisions: Maryland. State v. Morris, 47 Bowser v. State, 136 of our states the nighttime is now expressly defined by statutory enactment.41 In many jurisdictions, breaking and entry in the daytime is made burglary or a separate offense by statute.42 § 477. Intent-In general. Another essential element of burglary is a felonious intent. Except where the rule has been changed by statute, no breaking and entry, however forcible, will amount to burglary unless there is a specific intent to commit a felony.48 Thus, avail a prisoner on a charge of burglary that there was light enough from the moon, street lights, and lights of buildings, aided by newlyfallen snow, to enable one person to discern the features of another. There must have been daylight enough for the purpose. "" State v. Morris, 47 Conn. 179; State v. McKnight, 111 N. C. 690, 16 S. E. 229. And see 4 Bl. Com. 224; Thomas v. State, 5 How. (Miss.) 20. 41 In England it is provided that the nighttime shall be deemed to commence at nine o'clock in the evening, and to conclude at six in the morning. 24 & 25 Vict. c. 96, § 1. The Texas statute fixes it at from thirty minutes after sunset to thirty minutes before sunrise. See Long v. State, 58 Tex. Cr. 209, 127 S. W. 208, 21 Ann. Cas. 405; Laws v. State, 26 Tex. App. 643, 10 S. W. 220. In some states it is from sunset to sunrise. State v. Richards, 29 Utah 310, 81 Pac. 142. 42 California. People v. Barnhart, 59 Cal. 381. Illinois. Schwabacher v. People, 165 Ill. 618, 46 N. E. 809; Bromley v. People, 150 Ill. 297, 37 N. E. 209. Kentucky. Statutory housebreaking. Young v. Com., 126 Ky. 474, 104 S. W. 266, 128 Am. St. Rep. 326, 15 Ann. Cas. 1022. Louisiana. State v. Curtis, 116 La. 749, 41 So. 58. |