dow, or a hole in the wall; but to open the iron gate which leads only into the yard would not be a breaking of such a part as would constitute burglary. If the door or window is partly open it is said to hold out a temptation to the easily tempted, and to be such a negligence on the part of the owner that he should not be allowed to prosecute for the felony of burglary, if led by the temptation anyone breaks into the house. And yet if the outer door is open and the burglar enters through some other door, or, (by statute 12 Anne, c. 7.), if entering through an open door he breaks out through a closed one, it is burglary. Constructive breaking consists of getting in at a point that cannot be otherwise protected, or obtaining entry by fraud. It has been held in a number of cases that one who climbs down the chimney is guilty of breaking, because the chimney cannot by its nature be closed. If one by connivance with the servant in the house is let into the house at night to commit a felony therein, as larceny or adultery, this would seem to be burglary in both. A robber who knocks at the door as if someone had come to call on the inmates of the house is guilty of burglary, if they, being thus deceived, should open the door to him and he afterwards enters the house with felonious intent. One had himself enclosed in a box and sent by express from one town to another for the purpose of robbing the express, and this fraudulent entry into the express car was held a constructive breaking to make it a statutory burglary of an express car (1). One who lives in the house as servant and has a room there at night is (1) Nicholls v. State, 68 Wis. 416. guilty of breaking if he lifts the latch of the door to his master's chamber and opens the door at night with felonious intent. § 111. Entering. Like the breaking, the entry may be actual or constructive. Actual entry need not be of the whole body. Even the slightest entry of a finger is sufficient, as by inserting it through the hand-hole in the door to open it by lifting the latch, which would be a constructive breaking and actual entry, or by putting the ends of the fingers inside of the window-sash in attempting to lift the sash. If a burglar enters through the chimney it is not necessary that he get entirely into the house. When a burglar entered through the chimney and got down a little below the roof, and, because he could neither get further down nor get out, called for help, and the master of the house came and rescued him, it was held clearly burglary (2). The entry may be made by inserting part of the person or by inserting any instrument with which to commit the felony. If the entry is by any part of the person it is not necessary that the particular entry be made for the purpose of committing the felony; it may be to open the way for a more general entry, by turning the latch, or the like. But if an instrument only is inserted it is not a burglarious entry unless the design was to commit the felony by the insertion of that instrument. Therefore when a crow-bar was put so far under the window sash to lift it that it left a mark on the window sill inside, the court held that no burglarious entry had been made, for (2) Olds v. State, 97 Ala. 81. it was not designed to commit the felony by such entry (3). And when the end of the bit used to bore a hole in the door to get at the lock must have been inside of the door, since some of the chips fell inside, this was held to be no entry (4.) But if the instrument was inserted to commit the felony, as the insertion of a hook with which to pull out the goods inside, this would be a felonious entry. Therefore, if a person with murderous intent should knock enough of the mud from between the timbers of a log house so that he could see inside, this would be a breaking, and then if he should shoot through the hole to kill one inside the insertion of the ball would be a sufficient entry to make it burglary. An instance of constructive entry is furnished by the case where one bored a hole through the floor of a granary and caught the grain which ran out; this was a sufficient entry, admitting that the bit did not enter the granary, for no further entry was necessary to accomplish his purpose (5). § 112. Dwelling-house. The dwelling-house may be the rich man's mansion or the poor man's hovel or even his tent; and the dwelling house extends to include every building within the curtilege or yard; therefore one who opened the door of the barn adjoining the house at night, and went in and stole wool there stored, was held guilty of burglary, though it was about a hundred feet from the house to the barn (6). (3) Rex v. Rust, 1 Moody C. C. 183. As the offense is punished as a violation of the habitation, not of the property, it would not be burglary to break into a house into which goods had been moved, but which had not yet been occupied as a residence; or which had been vacated. But if the family have merely gone away for the season, leaving the goods in the house and intending to return, or if the owner has two residences, one in town and another at his summer resort, and lives at one in the winter and in the other during the summer season, breaking into either in the period of absence would be burglary if the other elements of the crime were present. § 113. Of another. A servant who lodges in the house is guilty of burglary if he breaks into the chamber of his master or any inmate of the house at night with felonious intent; and the same would be true of a guest at a hotel who breaks into the room of another guest at night for like purpose; but in the indictment it should be alleged as the breaking of the dwelling house of the keeper of the hotel, not of his injured guest. If a servant open the outer door at night to let a burglar in, this is also burglary in him. If I break into the house of my tenant at night with burglarious intent, it would of course be no defense that I own the ultimate title to the house. § 114. In the night-time. For the purpose of burglary it is night-time when twilight has approached so far that it is impossible to recognize the countenance of another by the light of the sun; and it remains night-time till this condition is changed by the dawn. It is not important that the light of the moon or artificial light would enable one to recognize another. While both the breaking and the entry must be in the night-time, yet if one with fraudulent intent unfastens and opens a window in the daytime so that he can get in at night, this is burglary. Evidence that the property was in place the night before and was gone in the morning, is enough to convict without proving that the property was taken in the dark hours, though the first witness to observe that the property was gone did not notice it till some time after daylight; for such things are not usually done in broad day-light in a public place, and this fact raises a presumption, in the absence of proof to the contrary. § 115. The felonious intent. Entry with any wicked or mischievous intent, not felonious, will not make burglary. Therefore where adultery is only a misdemeanor, breaking into the house of another with adulterous intent would not be burglary. The intent with which the act is done is sufficiently shown by what is done or attempted after entry is effected, or might be presumed from such suspicious circumstances as absence of any other apparent motive. It will be noticed that the essential intent is to commit a felony in the building broken into. It is believed that if the entry was merely to procure means to commit a felony elsewhere it would not be burglary. The felony usually designed is larceny, but any other felony intended would be sufficient. SECTION 2. ARSON. § 116. Defined. Arson is the malicious and voluntary burning of the dwelling-house of another by night or by day. It will be noticed that many of the elements of |