definition of which is the entering in the night-time any dwelling-house, tent, etc., with intent to commit petit larceny or any felony, no matter how the entry was effected.' In New York, an attorney who broke into a tomb and coffin to procure evidence to defeat a claim for embalming a body, was held guilty of burglary in the third degree.' The North Carolina statute punishing "any person who shall willfully break into a store-house where any merchandise or other personal property is kept, or any uninhabited house, or any dwellinghouse, in the night-time, otherwise than by breaking," must be construed as if it read, "or enter any dwelling-house," etc. In Ohio, to maliciously enter a store-house and attempt to steal anything of the value of $35 is, within 74 Laws, 249, § 6, an attempt to commit a felony."

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8.333. What does not.-Where a party enters a storehouse through an open window, and, removing the bar of the door, opens it to let in his accomplices, who do not in fact enter, he is not guilty of burglary. So, if one neither effects nor enlarges the opening through which he feloniously takes corn from a corn-crib, he is not guilty of burglary. And a person

who is lawfully in a house, or has the right to enter, as the guest of an inn, cannot be convicted of entering in the night time with intent to steal.' Therefore, a joint tenant cannot be guilty of burglary in unlocking the door of the joint tenement and taking therefrom the goods of his roommate." Again, if A. informs a sheriff that B. has requested A. to enter a house at night and steal a sum of money concealed there, and, by advice of the sheriff, A. enters alone, secures the money, marks it for identification, delivers it to B., and gives a signal, whereupon the sheriff arrests B. with the

money in his possession, B. is not privy to a burglary, none being committed.'

§ 334. What premises may be burglarized—(a) In general. -The general rule is that every dwelling-house is a habitation in which burglary may be committed, and also all out-houses attached to the dwelling, and intended for the comfort and convenience of the family; but not a store, in which no member of the family slept, though within thirty feet of it, and within a common inclosure.' It is not burglary to break the door of a store within three feet of the dwelling-house, and inclosed in the same yard, when the store is not essential to the house as a dwelling.' And breaking open, in the night, a store twenty feet from a dwelling-house, but not connected with it by any fence or inclosure, is not burglary. Where a person was charged with breaking and entering, in the night, "a certain house, not then occupied as a dwelling-house," and

1 People v. Collins, 53 Cal. 185 Defendant had been in the saloon, which it was alleged he was attempting to enter, on Sunday morning, and obtained a drink. He went out and, on returning the same morning, found the door closed, and was seen with his body leaning half over the top of a window which had been left down, and, on being asked what he was doing, said he wanted whisky. Held, not sufficient to sustain a conviction. - Fiester v. People, 125 Ill. 348. The accused proposed the commission of a burglary to H., who agreed to join in it, and notified the authorities. The accused and H. went together to the building. The accused raised a window and assisted H. in getting into the building. H. handed out a piece of bacon to the accused and was assisted by him in getting out. The accused picked up the bacon and was carrying it off when he was arrested. Held, that the accused could not be convicted of burglary, but of petit larceny only. State v. Haynes (Mo.), 16 S. W. Rep. 514. Three persons, much intoxicated, went into a store and bought and drank cider. They returned and called for more, which was poured out and set in glasses on the counter, about which time a pistol was discharged, and they all went out, leaving the cider on the counter. The attendant immediately locked the door, but left the store lighted, it being about ten o'clock at night. They pushed against the door, broke it open, and went in, followed by others, and there in the light and in the presence of the other persons drank the cider. Held, error to refuse an instruction that if they in good faith believed they had a right to drink the cider-that it was theirs -- then they had no intent to steal it.-State v. Shores, 31 W. Va. 491.

? Armour v. State, 3 Humph. 379.

8 State v. Langford, 1 Dev. 253. People v. Parker, 4 Johns. 424,

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stealing therein goods and chattels, it was held to be only larceny.' But it has been held burglary to break and enter a house in a city where the prosecutor intended to live when he came back from the country, to which he had moved his furniture on going to the country, although his family had never slept in it; it only having been used by them occasionally as a stopping place. In Arkansas, any house, under the statute, comes within the prohibitiou against burglary and arson. An out-house is not necessarily within the curtilage. A house contiguous to and used in connection with a hotel, both belonging to and controlled by the same person, is an outhouse. In Connecticut, the cabin of a vessel is a "shop," and a barn not connected with the mansion-house, is an "outhouse," within the statute punishing burglary. But otherwise as to a district school-house. In South Carolina, a millhouse, in which no.one sleeps, distant seventy-five yards from the owner's dwelling, and separated by a highway from it, and not shown to be appurtenant, is not a subject of burglary, either at common law or under Gen. St. ch. 129, § 32.

(b) Dwelling-house. To constitute a dwelling-house in the sense necessary to make the unlawful breaking burglary, no one need be in the house at the time, provided the owner had an intention of returning. A house ceases to be a dwellinghouse in this sense if the owner locks it up and leaves it with

1 Wilde v. Com., 2 Metc. 408.

2 Com. v. Brown, 3 Rawle, 207.

Shotwell v. State, 43 Ark. 345. A small building separated from a hotel by a passage-way was connected with it by a bridge passing between the second stories. The ground floor of the building was used as a saloon by the proprietor of the hotel, and the upper floor was divided into rooms for the accommodation of guests of the hotel. There was a privy, also, on the ground floor, used both by guests of the hotel and patrons of the saloon. There was no stairway or means of communication between the saloon and the story over it. Held, that a breaking and entering of the saloon at a time when the rooms overhead were occupied by the bartender and a son of the proprietor, was not indictable as a breaking and entering of a saloon "not adjoining to or occupied with a dwelling-house."-People v. Calderwood, 66 Mich. 92.

4 State v. Carrier, 5 Day, 131; State v. Brooks, 4 Conn. 446. See also, Rex v. Humphrey, 1 Root 63.

State v. Bailey, 10 Conn. 144.
State v. Sampson, 12 S. C. 567.

a settled purpose not to return.' Burglary may be committed by breaking and entering rooms in a tenement house which is occupied separately by several families, each having distinct apartments opening into a common hall and thus communicating with the street. But apartments leased and occupied separately from other tenements in the same building, with a separate outside entrance, the lessee having his residence in another part of the city, are not "adjoining to or occupied with a dwelling-house" within the Michigan statute against burglary (Comp. L. § 5766). Where a dwelling-house was occupied by one in charge of a plantation, and he ordinarily slept in one room of it, the entire house was his dwellinghouse, although another room may have been occasionally occupied as an office or bedroom by another, who, while there, was the master. Upon an indictment charging the breaking of and entry into the mansion-house, a conviction is proper, where the evidence shows that the house broken and entered was a smokehouse. Mansion or dwelling-house includes all such houses as are appurtenant thereto, as kitchen, laundry, smokehouse and dairy."

1 State v. Meerchouse, 34 Mo. 344; 86 Am. Dec. 109. Mason v. People, 26 N. Y. 200.

3 People v. Nolan, 22 Mich. 229. A. and B. were partners, and used and occupied as stores lower stories of two adjacent buildings opening into each other. A., with other persons, lived in upper rooms, and was there at time of burglary, but there was no internal communication between stores and upper rooms, latter being accessible only through fenced yard and staircase leading thence. Breaking was into one of stores. Held, that entry was into a “dwelling-house” within statute of burglary, which enacts that no building shall be deemed a dwelling-house, unless joined to, immediately connected with, and part of a dwelling-house; that phraseology being intended only to exclude isolated, uninhabited out-houses.Quinn v People, 71 N. Y. 561; 27 Am. Rep. 87.

4 Ashton v. State, 68 Ga 25.

5 Fletcher v. State, 10 Lea 338.

The building burglarized was held to be a 'dwelling-house,” within the law as to burglary, in the following cases: A two-story house of which the front on the first floor was used by the owner as a storehouse, and the back room (containing a few boxes of goods, and communicating with the front by a door in the partition) as a sleeping room, while his clerks took their meals at a hotel, but slept in the rooms on the second floor.-Ex parte Vincent, 26 Ala. 145; and see State v. Mordecai, 68 N. C. 207. A building within the curtilage of a residence, and regularly used as a sleeping-room

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(c) Building.-Where burglary is defined as entering, etc., any house or building," to constitute the crime the house need not be inhabited. A "stable" is fairly included in the statute defining burglary in that class of structures denominated other buildings."" But, under a statute making punishable the crime of breaking into a building, ship, or vessel, with intent, etc., it seems that one cannot be indicted for breaking into a corn-crib.'

(d) Warehouse; storehouse; barn, etc.-In Connecticut, where the question was raised and discussed whether a cornhouse and its fastening could be the subject of burglary, the court erred in instructing the jury that, as matter of law, it was so; he should merely have submitted to them the principles applicable. In Georgia, burglary may be committed in a house which is "the place of business of another, where valuable goods, wares or produce, or other articles of value are contained or stored." (Code, § 4386.) If it be not the "mansion or dwelling or storehouse," it is sufficient if it be proven to be the place of business of another, where valuable goods, etc., are contained or stored," although that

such as a storehouse. State v. Mordecai, 68 N. C. 207. A smokehouse which opened into the yard of a dwelling-house.-State v. Whit, 4 Jones 349. A smokehouse, the front part and door of which were in the yard of the dwelling-house, although the rear was not.-Fisher v. State, 43 Ala. 17. A storehouse twenty-four yards from the dwelling-house and separated therefrom by a fence, if the owner or his servant occasionally sleep there. -State v. Wilson, 1 Hayw. 242. A storehouse used regularly as a sleeping apartment, although for the sole purpose of protecting the premises.— State v. Outlaw, 72 N. C. 598; State v. Williams, 90 N. C. 724; 47 Am. Rep. 541; State v. Pressley, 90 N. C. 730.

In the following cases the building entered was held not to be a "dwellinghouse," within the law: A house visited once or twice a year by its owner to eat and sleep in for about a week, but unoccupied by any person during the rest of the year.-Scott v. State, 62 Miss. 781. A storehouse in which the owner occasionally slept, two hundred yards from his dwelling-house, in which he generally slept, with his family.-State v. Jenkins, 5 Jones 430; approved, State v. Outlaw, 72 N. C. 598. A storehouse not habitually occupied by the owner or some of his family for sleeping, but in which a mere watchman sleeps to preserve the property.-State v. Potts, 75 N. C. 129. 1 State v. Dan, 18 Nev. 345.

? Orrell v. People, 94 Ill. 456. Wood v. State, 18 Fla. 967.

State v. Williamson, 42 Conn. 461.