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"business" may not be of the kind which is carried on in conducting a "storehouse." Nor is it necessary to sustain the charge of burglary, to prove the house broken into and entered was the "place of business," etc., used for the purpose of containing or storing the goods alleged to have been stolen.' Even an incomplete house, protected by outer doors and canvas window frames, in which the carpenter's tools are stored, is the subject of burglary.' In Kentucky, a tobacco barn is not an "outhouse belonging to or used with any dwelling-house," within Gen. St. ch. 29, art. 5, § 4; and a breaking and entering of such barn, to steal tobacco, does not incur the penalty prescribed by that section. But a cellar under a dwelling-house, though entered only from the outside, is within said § 4, defining burglary as the felonious breaking of any dwelling-house, or any part thereof, and the felonious taking away of anything of value. In Michigan, where, in a trial for burglary of the house of one D., it appeared that the acts were committed in a barn jointly used for storing grain and farm property by D. and others, and which stood a short distance from the house and was separated from it only by a little gate used as the passage-way between them, a charge that if the barn was an outhouse adjacent to and used as a part of the homestead of D., and there was access between them by a gate, then the barn would be within the curtilage, is correct. In Missouri, to steal from a basement used for storing ice and beer, and having no connection with rooms above in which families live, is not stealing from a dwellinghouse." But on a trial under Rev. St. § 1298, making it burglary to enter any building "within the curtilage of a dwelling-house," or "other building" in which there are valuables, with intent to steal, it is immaterial whether a granary from which valuables were stolen was within the

1 Bethune v. State, 48 Ga. 505.

2 Guines v. State, 77 Ga. 762.

White v. Commonwealth, 87 Ky. 454.
Mitchell v. Commonwealth, 88 Ky. 349.
People v. Aplin, 49 N. W. Rep. 148.
State v. Clark, 89 Mo. 423.

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curtilage of the dwelling-house.' In New Jersey, breaking and entering a "storehouse" in the night-time, with intent to steal, is not burglary; and the same is the rule in North Carolina; and in Pennsylvania; and South Carolina. In Ohio, a building, built for a dwelling-house, but used for the storage of grain on the owner's farm, is a barn, within the statute against burglary; and a tobacco-house-a building erected upon a farm for the purpose of storing and drying tobacco, and used for that purpose- may be the subject of burglary, and may be described in the indictment as "a barn. In Texas, an office built in the corner of a warehouse is a "house" which may be broken and entered by lifting the latch. In Vermont, a railroad depot is "a warehouse" within the meaning of the statute of burglary, although such buildings were unknown when that statute was enacted.'

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§ 335. What is a breaking or entry?— (a) In general.To constitute burglary, any breaking that enables the prisoner to take the property out through the breach, with his hands, is sufficicnt, if the intent was felonious." And breaking into a store with intent to steal and carry away goods, is a sufficient breaking to constitute burglary. That goods should actually be taken and carried off is not essential." But to constitute burglary, there must be a breaking, removing, or putting aside of some part of the dwelling-house which is relied on as a security against intrusion. A door or window left open is no such security. But if the door or window be shut, it need not be locked, bolted, or nailed; a latch to the door, or the

1 State v. Hecox, 83 Mo. 531.

2 Conners v. State, 45 N. J. L. 340.

* State v. Dozier, 73 N. C. 117.

4 Hollister v. Commonwealth, 60 Pa. St. 103.

5 State v. Anderson, 24 S C. 109.

Barnett v. State, 38 Ohio St. 7.

'Ratekin v. State, 26 Ohio St. 420.

8 Anderson v. State, 17 Tex. App. 305.

State v. Bishop, 51 Vt. 287; 31 Am. Rep. 690.

10 Fisher v. State, 43 Ala. 17.

11 Olive v. State, 5 Bush 376.

weight of the window being sufficient.' Where there is internal communication between the apartment broken into and the room or building which the accused is accused to have feloniously entered, the offense is complete so far as the act of breaking and entering is concerned.' Thus though an entrance was effected through an open door, yet, if the accused, when in the house, unlocked or unlatched an inner door, with intent to commit a felony, his offense is burglary, if committed in the night-time. A breaking may be done by fire as well as by other means. The entrance and the intention being shown, the breaking is not lost in the consumption of the building. But an entry without force, although unlawful, is only a civil trespass. Thus entering a house through an open door or window is not burglary.' And the removal of a plank which is loose, and not attached to the freehold, in a partition wall of a building, is not a breaking in within the statute." Where, therefore, the indictment charges force, there must be evidence of force. If the entry is at night, slight force will suffice."

(b) Doors.-The lifting the latch of a closed door and pushing open the door is a sufficient breaking to constitute burglary.' So if a party knocks at the door of a dwelling-house in the night-time, and, the bolt being drawn, enters with the intent to commit a felony, there is a breaking and entering,

1 State v. Boon, 13 Ired. 244; State v. Reid, 20 Iowa 413; Lyons v. People, 68 Ill. 271; Com. v. Strupney, 105 Mass. 588. But see People v. Bush, 3 Parker 552.

2 Commonwealth v. Bruce, 79 Ky. 560.

3 Martin v. State, 1 Tex. App. 525.

4 White v. State, 49 Ala. 344.

Temple v. State, 6 Baxter, 496.

State v. Kennedy, 16 Mo. App. 287.

7 Com. v. Trimmer, 1 Mass, 476.

8 Ross v. State, 16 Tex. App. 554.

* State v. Groning, 33 Kan. 18; State v. O'Brien, 46 N. W. Rep. 861; Bass v. State, 1 Lea 444. The necessary breaking under Ga. Code, § 4386, is accomplished when a person, who has no business in a factory, enters by turning the door-knob, thereby withdrawing the bolt used in the day-time to keep the door closed; the same being done early in the morning, after the door was unlocked, but before it had come into general use for the day by the public, or even by the employes of the establishment.-Kent v. State, 84 Ga. 438.

whether he pushes the door open, or enters after it is opened from within.1 The outer door being open, entering and unlatching, or unlocking a chamber door is burglary. Otherwise, if all the doors are open, and a thief enter, though he afterward break open a chest or cupboard.' A person who entered a railroad depot through an open outer door, and then broke and entered an inner door, was held guilty of breaking and entering the depot; and it matters not whether the felony is to be committed in the particular room into which this inner door opens, or in another part of the house.' Where there are to the cellar-way of a dwelling-house two doors, one opening outwardly, the other opening into the cellar, the latter is an outer door of the house, and, if closed and latched, the unlatching and entering constitutes a breaking and entry." So, pushing open a closed, but unfastened transom swinging horizontally on hinges over an outer door of a dwelling-house is "forcibly" breaking within the Ohio statute defining burglary. And pushing up a trap-door in a floor a foot with the hand is sufficient to constitute a burglarious entry.'

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(c) Windows.-The general rule is that any entry, by means of hand or foot, or even by an instrument, with which it is intended to commit felony, is sufficient to constitute burglary; but simply breaking blinds, and making no entry beyond sash-windows, is not. And it is held that entering a house through an open window is not a sufficient breaking to constitute burglary; nor is the person so entering guilty of burglary, because he removed the bar of the door while within and opened it to let in his accomplices, if none of them

1 State v. Carter, 1 Del. Cr. 402. There is a breaking and entering by A., where he goes to B.'s house in the night-time, gives a false reason for askthat the door be opened, and when it is opened and immediately closed, shoots through it, and then forces it open and enters.-Seling v. State, 18 Neb. 548.

2 State v. Wilson, Coxe 439.

3 State v. Scripture, 42 N. H 485.

Rolland v. Commonwealth, 85 Pa. St. 66.

'McCourt v. People, 64 N. Y. 583

Timmons v. State, 34 Ohio St. 426.

Nash v. State, 20 Tex. App. 384; 54 Am. Rep. 529.

State v. McCall, 4 Ala. 643; 39 Am. Dec. 314.

Pines v. State, 50 Ala. 153.

in fact entered;' and where the only evidence for the prosecution is the testimony of the owner of the house, to the effect that he, one morning, found a window open, which was usually kept closed, but could not say that it was closed or fastened the previous night, and that he found, on examination no signs of a breaking or entering, the court should charge the jury, on the written request of the defendant, that they must find him not guilty.' So also, the mere raising of a partly opened sash, so as to admit a person, is not a breaking such as constitutes burglary. Where the only covering to the opening for a window is cloth hung over two nails at the top, and loose at the bottom, whether removal of the cloth from one of the nails is a sufficient breaking to constitute burglary, quære.*

In Michigan, the removal of an iron grating covering an area opposite a cellar window of a store, is a breaking within the meaning of Comp. L., § 5756, defining burglary;' and an entry into a building by raising a transom window attached by hinges above, and arranged to fall into the frame by its own weight when the window was shut into the frame, so as to require some force to open it, is a sufficient breaking under Comp. L. 1871, § 7563, punishing the breaking and entering an office, shop, etc., in night-time, etc. In Mississippi, the raising of a window sash which was down and closed, and which was the only fastening to the window, and an entry 1 Ray v. State, 66 Ala. 281.

2 Green v. State, 68 Ala. 539; Williams v. State, 52 Ga. 580; Contra State v. Carpenter, 1 Del. Cr. 367.

3 Commonwealth v. Strupney, 105 Mass 588.

Hunter v. Com., 7 Gratt. 641; 56 Am. Dec. 121.

People v. Nolan, 22 Mich. 229.

6 Dennis v. People, 27 Mich. 151. On the ground floor of a dwelling-house was a store. Both the store and the dwelling were occupied by the owner. There was a passage-way from the rear of the store to the kitchen, which connected with the dining-room by a door. Stairways led from the kitchen and dining-room to living and sleeping rooms over the store. There was no cellar except under the store. Held, that one who with felonious intent to comit larceny, in the night-time broke and entered through the area window into the cellar, passed up the cellar stairs into the store-room, and from thence escaped through the rear store door, which he unlocked for that purpose, was guilty of burglary in breaking and entering a dwellinghouse.-People v. Griffin, 77 Mich. 585.

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