through the same into the house, is such a breaking as constitutes burglary;' and in Missouri such an entry constitutes burglary in the second degree.❜ (d) Chimneys and other apertures.-To constitute burglary, there must be a breaking, removing or putting aside of something material, which constitutes a part of the dwelling-house, and is relied on as a security against intrusion. If an entrance be effected through an opening previously there, without forcible enlargement of it, this cannot be a burglarious entry, unless it be effected through an open chimney.' Thus going down a chimney into a house, with the intent to steal, and getting out through a window by breaking the inside fastening, is a sufficient "breaking into and entering" to constitute burglary. And one who, intending to steal shelled corn, bores a hole through the floor of a corn-crib from the outside, and thus draws the corn into a sack below, is guilty of burglary. But where a gin-house no longer used for ginning cotton contained two rooms, a lint-room and a gin-room, and the occupant of the latter crawled through a hole in the partition, which hole was made for the purpose of allowing the cotton to pass from the gin into the lint-room, into the former room, and stole seed-cotton belonging to the occupant 1 Frank v. State, 39 Miss. 705. State v. Tutt, 63 Mo. 595. At a trial for burglary, when the evidence was that defendant entered through an open window, the blinds of which were fastened with a "catch" on the inside, and that the door of the kitchen, which he entered, was bolted, there was no error in a charge that to constitute a breaking either the window-blind or the outside door of the kitchen must have been fastened, and that to constitute a fastening it was not necessary that the inmates of the house should have resorted to locks and bolts, if the doors or windows were held in position by their weight, and thus relied on as security.-State v. Fleming, 107 N. C. 905 Where it was proved that the defendant about four o'clock in the morning had raised the window of a dwelling-house, and stood outside holding it up with his hand, the fingers of which were inside the house, and his elbows resting on the window sill, when being discovered he dropped the window and fled, it was held sufficient to sustain a conviction.-France v. State, 42 Tex. 276. 3 Carter v. State, 68 Ala. 96; Com. v. Stephenson, 8 Pick. 354; State v. Willis, 7 Jones, 190. 4 Walker v. State, 52 Ala. 376. Walker v. State, 63 Ala. 49; 35 Am. Rep. 1. of said room, it was held that the offense of burglary had not been committed.' 2 § 336. Constructive breaking. The breaking which will constitute burglary may be actual or constructive. Thus, to obtain admission to a dwelling-house at night, with intent to commit a felony, by means of artifice or fraud, or upon a pretense of business or social intercourse, is a constructive breaking, and will sustain an indictment charging burglary by breaking and entering.' But to amount to a constructive breaking, so as to constitute burglary, by enticing the owner out of his house by fraud and circumvention, and thus inducing him to open his door, the entry of the trespasser must be immediate, or so soon that the owner, or his family, cannot refasten the door. Where the owner was decoyed to a distance from his house, leaving it unfastened, and his family did not fasten it after he went out, and the trespasser, at the expiration of about fifteen minutes, entered the house through the unfastened door, with intent to commit a felony, it was held not burglary. So, getting into a room through an open transom over the door is not a constructive breaking, within the meaning of Neb. Crim. Code, § 48, defining burglary as a willful, malicious, and forcible breaking and entering of a dwelling-house in the night-season, with intent, etc. But where defendant, with intent to rob an express-car, secreted himself in a box, which he procured to be placed in the car by agents of the express company, it was held a constructive breaking. So a domestic servant, conspiring with those who are not servants, may be guilty of burglary, though the breaking be not actual, and such as if committed by the servant acting alone would not be burglary;' and a farm hand who sleeps and eats out 1 Stone v. State, 63 Ala. 115. 2 Clarke v. Commonwealth, 25 Gratt. 908. 3 Johnston v. Commonwealth, 85 Pa. St. 54; Rolland v. Commonwealth, 82 Pa. St 306; State v. Johnson, Phill. L. 186; 93 Am. Dec. 587; State v. Mordecai, 68 N. C. 207. 4 + State v. Henry, 9 Ired. 403. 5 McGrath v. State, 25 Neb. 780. Nicholls v. State, 68 Wis. 416; 60 Am. Rep. 870. "Neiderluck v. State, 23 Tex. App. 38. side the master's house, though he works in the house when ordered, is not a "domestic servant" within the meaning of Tex. Penal Code, art. 714, requiring an "actual breaking " in the case of a "domestic servant." 2 § 337. Day or night-time.-At common law, burglary, and breaking and entering a dwelling-house in the daytime, are intended to be two distinct offenses, and they cannot be made to constitute one and the same offense, by means of an averment in an indictment to that effect. To constitute burglary the breaking and entering must be in the night-time, when there is not sufficient daylight or twilight begun or left to discern the countenance of a person; but this does not extend to moonlight; and it will not 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 left for the purpose. In Georgia, under the earlier decisions, burglary may be committed in the day as well as night. And in Maine, the offense may be committed irrespective of light or darkness.' But the provisions of Ga. Rev. Code, § 4245, 4347, and 4350, make a distinction between burglary in the night, burglary in the day and larceny from the house; and the act of 1879, p. 65, did not alter the law of burglary, otherwise than to put burglary, whether committed in the day or night, on the same plane in respect to punishment. In Indiana, where the defendant is convicted of the offense defined in Rev. Stat. 1881, § 1930, and the evidence clearly shows his unlawful breaking and entry into the house in the daytime, the Supreme Court will not disturb a verdict of guilty on the evidence, where the jury may have fairly inferred and found from the I Waterhouse v. State, 21 Tex. App. 663. 2 People v. Taggart, 43 Cal. 81. State v. Manluff, 1 Del. Cr 208; State v. Carter, Id. 402. 4 State v. Morris, 47 Conn. 179. State v. Thompson, R. M. Charlt. 80. * State v. Newbergin, 25 Me. 500. 7 Williams v. State, 46 Ga. 212; Wood v. Slate, Id. 322. • Ashton v. State, 68 Ga 25. facts and circumstances shown that such breaking and entry were done with intent to commit larceny.' In Massachusetts, on the trial of an indictment against an accessory before the fact, to the breaking and entering a bank building in the night, and stealing from the vault of the bank, it is immaterial that part of the work was done in the day-time, or that the forcing open of the vault and stealing its contents was postponed until daylight; nor is it necessary to prove that the defendant knew or supposed that the offense was to be committed in the night." In Texas, Pen. Code art. 710, relating to burglary, defining "day-time" to include any portion of the twenty-four hours from thirty minutes before sunrise until thirty minutes after sunset, a theft at night, within the meaning of the above act, is a theft committed at any time between thirty minutes after sunset and thirty minutes before sunrise." $338. Breaking out, after entry without breaking. In Connecticut, proof of entering a house in the night-time, without breaking, for purposes of felony, and breaking out to escape, warrants a conviction of burglary. But in Georgia, entering through an open door to commit a felony and unbolting a door to get out is not actually or constructively a sufficient breaking and entering into" to constitute a burglary." And the weight of authority is to the effect that one who has secreted himself in a house by night to commit a felony, and who, on discovery, attempts to escape by unlocking a door, is not thereby guilty of "breaking and entering." Such unlocking cannot be referred arbitrarily to the felonious design. 66 1 Burrows v. State, 84 Ind. 529. 4 State v. Ward, 43 Conn. 489. 5 White v. State, 51 Ga. 285. 6 Adkinson v. State, 5 Baxter 569; Goldsmith v. State, 63 Ga. 85; State v. McPherson, 70 N. C. 239; 16 Am. Rep. 769; Rolland v. Com., 82 Pa. St. 306; 22 Am. Rep. 758; Brown v. State, 55 Ala. 123: 23 Am. Rep. 693. Where it was proved that the prisoner entered a dwelling-house by an open window in the day time, passed through the house, unlocked the front door and went out about noon, it was held that his offense was not burglary in the second degree under the statute of New York (2 R. S. 5th ed. p. 947, § 13).— People v. Arnold, 6 Parker 638. But where, on trial of a charge of breaking into a postoffice under U. S. Rev. St. § 5478, requiring evidence of forcible breaking, it appears that all persons had been previously removed from the premises, the accused found attempting a burglary is not entitled to the benefit of any presumption that he had previously secreted himself in the building.' § 339. The felonious intent. To constitute burglary, the intent to steal must accompany or prompt the entering.' Thus, one cannot be convicted of burglary, if he had no felonious intent, was present simply as a spy on the others, and had told a magistrate that the burglary was to be committed.' But if two persons break into a house, one with intent to commit a felony and another with an innocent purpose, the party having the intent to commit a felony is guilty, without reference to the secret purpose which the other party may have had. To break and enter a dwelling-house with intent to commit adultery, is not burglary in Vermont; and in Massa 1 United States v. Lantry, 30 Fed. Rep. 232. 'Harris v. State, 20 Tex App. 652. A servant employed by an attorney in and about his office, and intrusted with the key to the front door, may be convicted of burglary (Code, § 4343), if he enters the office by night, by using the key, with the intention at the time of stealing the money of his employer while asleep in an inner room; but if he is in the habit of sleeping in the office, with the consent of his employer, or without objection from him, and enters with the intention only of going to bed, but afterwards forms the design to steal the money, and attempts to do so, he is not guilty of burglary.-Lowder v. State, 63 Ala. 143. Defendants were indicted for breaking and entering with intent to commit larceny Testimony showed that they broke into the tool-house of a railroad company, took from it a hand-car, put it on the track and rode in it twelve miles, and then removed it to and left it at side of track. Held, that this did not establish larcenous intent essential to constitute burglary.-State v. Ryan, 12 Nev. 401; 28 Am. Rep. 802. 3 Price v. People, 109 Ill. 109. 4 Gale v. State, 13 Lea 489. P. informed the sheriff that C. had requested him to enter a house in the night-time, and steal therefrom a sum of money which he knew to be concealed there, the money to be divided between them. By advice of the sheriff, P. agreed to do so, for the purpose of entrapping C., and accordingly entered the house, secured the money, marked it so that it could be identified, and, after delivering it to C., gave a signal, when the sheriff arrested C. with the money in his possession. Held, that inasmuch as P. alone entered the building, and did so without felonious intent, there was no burglary committed, and therefore C. could not have been privy to a burglary.—People v. Collins, 53 Cal. 185. State v. Cooper, 16 Vt. 551. |