larceny, etc.79 Thus, it is not burglary if the intent is to persuade a woman to submit to sexual intercourse, and not to have intercourse by force, if necessary, for intercourse with the woman's consent is not rape, nor a felony.8 80 The same is true where the intent is to merely beat or tar and feather the occupant, or to take property under such circumstances that the taking will not constitute robbery or larceny.82 And for the same reason a person is not guilty if he enters with a burglar merely as a detective for the purpose of fastening the guilt on his associate. 83 The intent may be to commit a statutory felony.8

81

84

791 Hale, P. C. 559; 1 Hawk. P. C. c. 38, § 18; Dobb's Case, 2 East, P. C. 513, Beale's Cas. 181; Rex v. Knight, 2 East, P. C. 510; State v. Shores, 31 W. Va. 491; Price v. People, 109 Ill. 109; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258; Ashford v. State, 36 Neb. 38, 53 N. W. 1036.

so See Harvey v. State, 53 Ark. 425, 14 S. W. 645.

81 1 Hawk. P. C. c. 38, § 18. Cutting off a man's ear is not mayhem at common law, and to break and enter a house with intent to do so is not burglary. See Com. v. Newell, 7 Mass. 245, where it was held that a breaking and entry with such an intent was not burglary, though a statute made it mayhem to cut off a man's ear, as the statute did not make it a felony.

82 Thus, it is not burglary to break and enter with intent to take property that is not the subject of larceny. State v. Lymus, 26 Ohio St. 400.

The same is true where the intent is to take property, not animo furandi, but under a bona fide claim of right or merely to use and then return it. State v. Shores, 31 W. Va. 491, 7 S. E. 413; State v. Ryan, 12 Nev. 401, 28 Am. Rep. 802.

As every larceny was a felony at common law, it was enough at com. mon law, and is still so in some jurisdictions, to show an intent to commit any larceny; but where larceny is divided into grand and petit, and petit larceny is reduced to a misdemeanor (ante, § 336), breaking and entry with intent to commit that crime is not burglary. Harvick v. State, 49 Ark. 514, 6 S. W. 19; People v. Murray, 8 Cal, 520; Wood v. State, 18 Fla. 967.

A breaking and entry with intent to commit larceny is none the less burglary because there is not enough in the house to make the taking grand larceny, if the burglar does not know this, for, as we shall see, the intended felony need not be consummated. Harvick v. State, 49 Ark. 514, 6 S. W. 19. And see State v. Beal, 37 Ohio St. 108.

83 Price v. People, 109 Ill. 109. See, also, Rex v. Dannelly, Russ. & R. 310, 2 Marsh. 571.

(b) Intent must Accompany Both the Breaking and the Entry. Both the breaking and the entry must be with felonious intent. A breaking with felonious intent, followed by an entry without such an intent, or a breaking without, followed by an entry with, such an intent, is not burglary.85 If a man breaks the window of a house, or lifts a transom or trapdoor, and his hand or head enters, though the entry may be merely for the purpose of effecting a further entrance, as by undoing a fastening, he is guilty of burglary, provided the ultimate ob ject is to commit a felony in the house. In other words, the entry in such a case need not be for the immediate purpose of committing the intended felony.86 It is otherwise when the entry is by an instrument. As we have already seen, if a man breaks a window and inserts an instrument for the purpose of committing a felony, as a gun to commit murder, or a hook to commit larceny, there is a sufficient entry to constitute burglary.87 If an instrument is inserted, however, not for the purpose of committing the intended felony, but for the purpose of procuring admission to the house, as by undoing a bolt or removing an inner shutter, and no part of the body enters, there is not a sufficient entry.8 88

841 Hawk. P. C. c. 38, § 19; Dobb's Case, 2 East, P. C. 513; Beale's Cas. 181.

85 State v. Moore, 12 N. H. 42; Colbert v. State, 91 Ga. 705, 17 S. E. 840.

To break and enter a house without any felonious intent, and to form and carry out such an intent after the entry, is not burglary. Colbert v. State, supra; State v. Moore, supra.

86 Rex v. Perkes, 1 Car. & P. 300; Reg. v. O'Brien, 4 Cox, C. C. 398; Com. v. Glover, 111 Mass. 395; Nash v. State, 20 Tex. App. 384, 54 Am. Rep. 529; Franco v. State, 42 Tex. 276. And see the dictum in Walker v. State, 63 Ala. 49, 35 Am. Rep. 1, Beale's Cas. 794.

87 Ante, § 405 b.

88 Rex v. Roberts, Car. Crim. Law, 293, 2 East, P. C. 487; Hughes' Case, 1 Leach, C. C. 406; Walker v. State, 63 Ala. 49, 35 Am. Rep. 1, Beale's Cas. 794. And see Reg. v. O'Brien, 4 Cox, C. C. 398.

Thus, in Hughes' Case, supra, it was held not to be burglary mere

90

(c) Intent may be Inferred from the Circumstances.-The intent must always be proved, so as to show that it was felonious, but it may be inferred from the circumstances.89 An intent to commit a felony at the time of the breaking and entry may very clearly be inferred from its actual commission after the entry." It may also be inferred from the conduct of the party accused, though no felony is committed, and in such a case the manner in which the entry was effected is of weight. Thus, where a man entered the room of a sleeping girl at night, by raising the window, and laid his hand upon her person, and upon her screaming, left hurriedly through the window, without any explanation, it was held that an intent to commit rape might be inferred.91 So where a man at midnight broke and entered a house in which there were valuables, and no other motive appeared, it was held that an intent to steal might be inferred.92

ly to bore a hole for the purpose of opening a bolt, though the auger penetrated to the inside of the door.

In Walker v. State, supra, it was said: "When one instrument is employed to break, and is without capacity to aid otherwise than by opening a way of entry, and another instrument must be used, or the instrument used in the breaking must be used in some other way or manner to consummate the criminal intent, the intrusion of the instrument is not of itself an entry. But when, as in this case, the instrument is employed not only to break, but to effect the only entry contemplated and necessary to the consummation of the criminal intent, the offense is complete."

89 See People v. Marks, 4 Park. Cr. R. (N. Y.) 153; Franco v. State, 42 Tex. 276; Steadman v. State, 81 Ga. 736, 8 S. E. 420; State v. McDaniel, 1 Winst. (N. C.) 249.

Where accused bored a hole with an auger into a granary and allowed grain to fall out, which he carried away, the intent to steal was sufficiently shown, though gravitation co-operated in its removal. State v. Crawford, 8 N. D. 539, 80 N. W. 193, 73 Am. St. Rep. 772, 46 L. R. A. 312.

90 State v. Moore, 12 N. H. 42; Com. v. Hope, 22 Pick. (Mass.) 1. 91 State v. Boon, 13 Ired. (N. C.) 244, 57 Am. Dec. 555.

92 Steadman v. State, 81 Ga. 736, 8 S. E. 420. And see People v. Soto, 53 Cal. 415; Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756.

408. Commission of Intended Felony.

The breaking and entry with intent to commit a felony makes the crime of burglary, and it is not at all necessary that the intent shall be executed after the entry.98 It follows that one who breaks and enters a house with felonious intent is none the less guilty of burglary because he abandons such intent after the entry, either from fear or from repentance, or because he is unable to execute it by reason of resistance or other circumstances beyond his control.95

409. Statutes Relating to Burglary.

In most jurisdictions, perhaps in all, statutes have been enacted for the purpose of extending the common law. Some of them have made it burglary to break and enter premises that were not the subject of burglary at common law, as shops, stores, warehouses, etc. At common law, as we have seen, the breaking and entry must be in the nighttime. Some of the statutes, however, make it burglary to break and enter in the daytime. The statutes are to be construed in the light of the common law, and, unless a contrary intention appears, the terms used, such as "break," "enter," "dwelling house," etc., are to be taken in the sense in which they are understood at common law.96 Some statutes dispense altogether with the necessity for a breaking, and make it burglary to enter without

93 3 Inst. 63; 1 Hale, P. C. 561, 562; Wilson v. State, 24 Conn. 57; Olive v. Com., 5 Bush (Ky.) 376; State v. McDaniel, 1 Winst. (N. C.) 249.

94 State v. Boon, 13 Ired. (N. C.) 244, 57 Am. Dec. 555.

95 As, for example, because of resistance by a woman whom he intends to rape, or because of the absence of property which he intends to steal. State v. McDaniel, 1 Winst. (N. C.) 249; Harvick v. State, 49 Ark. 514, 6 S. W. 19; State v. Beal, 37 Ohio St. 108.

96 Reg. v. Wenmouth, 8 Cox, C. C. 348; Pitcher v. People, 16 Mich. 142; Finch v. Com., 14 Grat. (Va.) 643; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Nicholls v. State, 68 Wis. 416, 32 N. W. 543; Quinn v. People, 71 N. Y. 561, Beale's Cas. 789; Sims v. State, 136 Ind. 358, 36 N. E. 278; Schwabacher v. People, 165 Ill. 618, 46 N. E. 809.

breaking, if the entry is with felonious intent.97 Other statutory changes have been mentioned in previous sections.

Degrees of Burglary.-In a few states, burglary, like homicide, has been divided into degrees, according to the character of the premises, the time the offense is committed, or other circumstances.98

II. ARSON.

410. Definition and Elements.-Arson is one of the commonlaw felonies. It is the willful and malicious burning of the dwelling house of another, either by night or by day." To constitute the offense, four things are essential at common law: 1. The building burned must be a dwelling house, as in burglary. But the term "dwelling house" includes outhouses within the curtilage or common inclosure. 2. The house must be that of another. But occupancy, not ownership, is the test.

3. There must be an actual burning of some part of the house, and not merely a scorching. But the slightest burning is sufficient.

4. The burning must be willful and malicious.

This definition and analysis is of arson at common law. As we shall presently see, the offense has been extended by statute in most jurisdictions so as to include the burning of other buildings than dwelling houses, as shops, warehouses, unoccupied houses, etc., and also to include, under some circumstances, the burning of one's own house.100

97 See Nicholls v. State, 68 Wis. 416, 32 N. W. 543; Rolland v. Com., 85 Pa. 66; People v. Barry, 94 Cal. 481; People v. Brittain, 142 Cal. 8, 75 Pac. 314, 100 Am. St. Rep. 95.

98 See Pen. Code N. Y. § 496 et seq.; Pen. Code Minn. § 383 et seq.

991 Hawk. P. C. c. 18, §§ 1, 2, Beale's Cas. 797; 1 Hale, P. C. 569,

Mikell's Cas. 927; 4 Bl. Comm. 220; Mary v. State, 24 Ark. 44, 81 Am. Dec. 60; State v. McGowan, 20 Conn. 245, 52 Am. Dec. 336; Shepherd v. People, 19 N. Y. 537.

100 Post, § 416.