245; regardless whether it was or ever had been inhabited by members of the human family-id.; see 71 N. Y. 561; enlarging the common-law definition, which required it to be a dwelling-house where the family usually resided-see 60 Pa. St. 103. House, dwelling, mansion-house, and residence are equivalent terms-3 Serg. & R. 199; 3 Parker Cr. R. 208; 20 Wis. 599. The possession of a renter is sufficient-49 Iowa, 51. Burglary may be committed by breaking into a lodging-room, even by a person lawfully within the building of which it is a part-14 Gray, 103; 26 N. Y. 200; 3 Parker Cr. R. 552; 42 Vt. 629; 8 Car. & P. 747; and the apartment must be laid to be his dwelling-house-38 Cal. 138; 38 Ga. 165; 26 N. Y. 200; 1 Parker Cr. R. 329; 3 id. 552; 8 Car. & P. 747; 1 Moody C. C. 23; 1 Leach, 237; id. 537; Salk. 532; so of a loft over a stable, used as a lodging-1 Leach, 305; or a garret used as a workshop, with an apartment for sleeping-id. 237. The occupation of the servant as such is the occupation of the master-1 Hayw, (Tenn.) 242; 3 Humph. 379; Russ. & R. C. C. 442; 7 Car. & P. 150; Russ. & R. C. C. 115; unless he occupied it as a lessor-1 Moody C. C.7; see 5 Car, & P. 202; Russ. & R. C. C. 525; 1 Moody C. C. 42; id. 248; 1 Leach, 305; Russ. & R. C. C. 187. A house tenanted by a married woman is the house of the husband-5 Car. & P. 202; Russ. & R. C. C. 491; id. 517. But see 18 Ohio, 308; 26 Mich. 106.

What within the curtilage.-Outhouses, store-rooms, warehouses, barns, etc., are included with the dwelling, if they are within the curtilage, whether the yard be inclosed or open-2 Parker Cr. R. 23; 2 Hun, 336; S. C. 71 N. Y. 561; 1 Dev. 253; 1 Hayw. (Tenn.) 102; id. 242; 2 East P. C. 493; Russ. & R. 357; id. 334; as a barn, part of the same group of buildings, and not separated by a public road-16 Mich. 142; but otherwise, if separated by a highway-36 id. 309; and see 1 Dev. 253; 1 Nott & McC. 583; or a workshop adjoining the residence-Russ. & R. 334; or a smoke-house opening into the yard of a dwelling-house -4 Jones, (N. C.) 349; but otherwise, if detached and in a distinct lot1 Winst. (N. C.) No. 2, 80; so, of a goose-house opening into the yardRuss. & R. 660. A two-story house, partly occupied as a storehouse, and partly for sleeping accommodations, is a dwelling-house-26 Ala. 145; and see 68 N. C. 206; but where there was no fence inclosing the dwelling, and the store, which was twenty feet off and not appurten ant and ancillary to the house, is not part of the dwelling-see 4 Johns. 424; 60 Pa. St. 103; 1 Nott & McC. 583. Outhouses, to be within the curtilage, must be ancillary to the main building, contiguous thereto, or within the same inclosure or lot-4 Conn. 446; 20 Ala. 30; and must itself be a complete structure-1 Car. & K. 303.

460. Every burglary committed in the night-time is burglary of the first degree, and every burglary com mitted in the day-time is burglary of the second degree. [Approved Feb. 9th, in effect May 1st, 1876.]

461. Burglary of the first degree is punishable by imprisonment in the State prison for not less than one nor more than fifteen years. Burglary of the second degree is punishable by imprisonment in the State prison for not more than five years. [Approved Feb. 9th, in effect May 1st, 1876.]

House-breaking.-Burglary committed in the night-time is burglary In the first degree, and burglary committed in the day-time is in the second degree-52 Cal. 454. They are distinct offenses-52 Cal. 454.

The mere fact that one person is with another who enters a house and steals therefrom, but who does not interfere to prevent the theft, does not render him guilty-27 Cal. 490. The offense is complete if the value of the property intended to be stolen was less than fifty dollars-28 Cal. 218, distinguishing 8 id. 519. Entering, by opening a door fastened by a latch, is the offense, if the intent to commit a felony exists-1 Lea, (Tenn.) 444; 3 Greenl. Ev. § 576.

Terms defined.-A "shop" includes any place where goods are sold or work is done for which money is received-5 Day, 131. See 4 Conn. 446; 1 Root, 63; 19 N. H. 135; but not a counting-room-4 Parker Cr. R. 153; nor place of business-48 Ga. 505. The term "shop" is equivalent to store-14 Gray, 376; and breaking and entering into a shop adjoin ing a dwelling-house is indictable-3 Met. 316; id. 588; 1 Mass. 248; but see 20 Pick. 356. That the terms "shop" and "store" are not synonymous, see-19 N. H. 135. A "store" is a place where goods are exhibited for sale-19 N. H. 135; and breaking into and entering a store is indictable under the statute-10 Mass. 153; but see 8 Mass. 490. A "storehouse" includes a place of storage for all purposes, including commercial use-3 Ired. 570. A "warehouse" is any place used for the temporary storage of merchandise-24 Conn. 57; 10 Ohio St. 287. See 3 Serg. & R. 199; and includes a cellar-M. & R. 458; and a railroad depot-51 Vt. 287. A passenger-room in a railroad station is an office under the statute-6 Cush. 181.

462. Section four hundred and sixty-two of the Penal Code is repealed. [Approved Feb. 9th, in effect May 1st, 1876.]

463. The phrase "night-time," as used in this chapter, means the period between sunset and sunrise.

The time.-The offense of burglary in the first degree must be committed in the night-time-5 How. (Miss.) 20; but not at any particular hour of the night-35 Cal. 115. If the breaking and entering be in the night-time, it is burglary in the first degree, and if in the day-time it is In the second degree-52 Cal. 453. Night-time consists of the period from the termination of daylight to the earliest dawn of the morning -10 N. H. 105; and the presence of sufficient daylight to discern a man's features is an established criterion-19 Cal. 578; 16 Conn. 32; 10 N. H. 105; 5 How. (Miss.) 20; 7 Dane's Abr. 134. Whether committed in the night or day-time is a question of fact for the jury-5 How. (Miss.) 20; 35 Conn. 515; see 35 Caf. 115; 31 Ohio St. 462; to be inferred from facts and circumstances-10 N. H. 105; 58 Ga. 78; and no presumption of law will suffice-53 id. 567; 4 Jones, (N. C.) 319; see 42 N. Y. 1. Between six and seven o'clock, on the afternoon of August 31st, is not in the night-time-19 Cal. 578. It is not material that the breaking and entering were done on different nights-Russ. & R. C. C. 417; 7 Car, & P. 432; 9id. 44; so, a party present at the breaking on the first night is a principal, though absent at the entering-7 id. 432. It is immaterial that part of the work was done in the day-time-111 Mass. 395. See 25 Me. 500; Charlt. R. M. 80; 2 Tex. Ct. App. 412.

CHAPTER III.

HAVING POSSESSION OF BURGLARIOUS INSTRUMENTS AND DEADLY WEAPONS.

§ 466. Possession of burglarious instruments.
§ 467. Having possession of deadly weapons.

466. Every person having upon him, or in his possession, a picklock, crow, key, bit, or other instrument or tool, with intent feloniously to break or enter into any building, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument above named, so that the same will fit or open the lock of a building, without being requested so to do by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing, or having reason to believe, that it is intended to be used in committing a misdemeanor or felony, is guilty of misdemeanor. Any of the structures mentioned in section four hundred and fifty-nine of this Code, shall be deemed to be a building within the meaning of this section. [In effect March 3rd, 1874.]

To procure, with a criminal intent, is an offense-Russ. & R. C. C. 308; 1 El. & B. 435; and possession may be shown on a charge of procuring Russ. & R. C. C. 308; 1 Lew. C. C. 42.

467. Every person having upon him any deadly weapon with intent to assault another, is guilty of a misdemeanor.

CHAPTER IV.

FORGERY AND COUNTERFEITING.

$470. Forgery of wills, conveyances, etc.

§ 471. Making false entries in records or returns.

§ 472. Forgery of public and corporate seals.

§ 473. Punishment of forgery.

§ 474. Forging telegraphic messages.

§ 475. Passing or receiving forged notes.

§ 476. Making, passing, or uttering fictitious bills. etc.

§ 477. Counterfeiting coin, bullion, etc.

§ 478. Punishment of counterfeiting.

§ 479. Possessing or receiving counterfeit coin, bullion, etc. § 480. Making or possessing counterfeit dies or plates.

§ 481. Counterfeiting railroad ticket, etc.

§ 482. Restoring canceled tickets.

470. Every person who, with intent to defraud another, falsely makes, alters, forges, or counterfeits any charter, letters, patent, deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, bond, covenant, bank-bill or note, post-note, check, draft, bill of exchange, contract, promissory note, due-bill for the payment of money or property, receipt for money or property, passage ticket, power of attorney, or any certificate of any share, right, or interest in the stock of any corporation or association, or any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release, or receipt for money or goods, or any acquittance, release, or discharge for any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificates of shares of stock, goods, chattels, or other property whatever or any letter of attorney, or other

power to receive money, or to receive or transfer certifi cates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or assignment of any bond, writing obligatory, or promissory note for money or other property, or counterfeits or forges the seal or handwriting of another; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false; altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; or who, with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court, or the return of any officer to any process of any court, is guilty of forgery,

Forgery defined.-Forgery is the fraudulent making or alteration of a writing, to the prejudice of another's rights-35 Cal. 507; 4 Up. Can. Pr. 216; 1 Dears. & B. 566; Law R. 1 C. C. 200; 2 Leach, 775. It is the false making, or materially altering, with intent to defraud, any writ ing which, if genuine, might apparently be of legal efficiency, or the foundation of a legal liability-53 Ala. 467; 5 Ark. 349; 8 Iowa, 231; 19 id. 299; 26 id. 407; 20 id. 541; 3 Cush. 150; 2 Bay, 262; 2 Me. 365; 50 id. 409, 411; Thach. C. C. 187; 2 Const. S. C. 669; 4 Parker Cr. R. 217; 6 id. 135; 8 Yerg. 151; 15 Mass. 526; Addis. 33; 1 James, 385. It is the making of an instrument fraudulently purporting to be that which it is not 10 Low. Can. Jur. 296; Law R. 1 C. C. 200; doubted-11 Gray, 197; or a fraudulent application of a false signature to a true instrument-1 Hale P. C. 683. Even a mark made in the name of another is forgery1 Leach, 57. Writing includes everything done by the pen, by engrav ing, or by printing-3 Gray, 441; 8 Cox C. C. 32; or otherwise-86 Ill. 239; as, by pasting a name over another's-1 Har. (Del.) 507; or, engraving-4 Parker Cr. R. 166; 7 Cox C. C. 494; Dears. & B. 460; 1 Moody C. C. 807; id. 304; or by photographic process-Leigh & C. 330. The bare making, without publishing or uttering, constitutes the offense2 Bay, 262; 2 Mass. 397; Russ. & R. C. C. 97. The common-law offense is not superseded by the statute-3 Cush. 150. The purpose of the statute is protection of society-35 Cal. 503.

Subjects of forgery. The following instruments have been held subjects of forgery: An acquittance for a specific sum-2 Cranch C. C. 521; 1 Sid. 278; or a receipt in full-2 Allen, 161; 15 Ohio, 717; 2 Leach, 732. A receipt may be an acquittance-15 Mass. 526; 51 Vt. 102; 7 Car. & P. 549; 8 id. 180; 1 Car. & M. 135; and an agreement of sale of standing timber may be a receipt-14 Up. Can. C. P. 309. So, book entries are subjects of forgery when legal evidence against vendee-32 Pa. St. 529; 49 How. Pr. 462; but see 46 N. H. 266; or entries in a pass-book-9 Cox PEN. CODE.-17.