That writer gives instances of a constructive breaking by each of these three modes: as,

1. By threats. Where in consequence of violence commenced or threatened in order to obtain entrance to a house, the owner, either from apprehension of the violence, or in order to repel it, opens the door and the thief enters, such entry will amount to breaking in law; for which some have given as a reason, that the opening of the door by the owner being occasioned by the felonious attempt of the thief, is as much imputable to him as if it had been actually done by his own. hands. And in a late case, where the evidence was that the family within the house were forced by threats and intimidation to let in the offenders, Thompson, B., told the jury that although the door was literally opened by one of the family, yet if such opening proceed from the intimidations of those who were without, and from the force that had been used, knocking at and breaking the windows, calling out and insisting on the doors being opened, and firing of guns; if under these circumstances, the persons within were induced to open the door, it was as much a breaking by those who made use of such intimidations to prevail upon them so to open it, as if they had actually burst open the door.1

2. By fraud. Where an act is done in fraud in legis, the law gives no benefit thereof to the party. Thus, if thieves having an intent to rob, raise hue and cry and bring the constable, to whom the owner opens the door, and they, when they come in, bind the constable and rob the owner, it is burglary. And upon the same principle, the getting possession of a dwelling-house by a judgment against the casual ejector, obtained by false affidavits, without any color of title, and then rifling the house, was ruled to be within the statute against breaking the house and stealing the goods therein. So, if a man go to a house under pretense of having a search warrant, or of being authorized to make a distress, and by these means obtain admittance, it is, if done in the night time, a sufficient breaking and entry to constitute burglary. If admission to a house be gained by fraud, not carried on under the cloak of legal process, as if by a pretense of business, it will also amount to a breaking by the construction of law. As where thieves came to a house in the night time with intent to commit a larceny, and knocked at the door, pretending to have business with the owner, and being by such means let in, robbed him; they were held guilty of burglary. And so, when some persons took lódgings in a house, and afterwards, at night, while the people were at prayers, robbed them; and it was considered that the entrance into the house, being

1 Id. 792,793.

gained by fraud, with an intent to rob, the offense was burglary. For the law will not endure to have its justice defrauded by such evasions. A case is also reported where the entrance to the house was gained by deluding a boy who had the care of it. It appeared upon the evidence that the prisoner was acquainted with the house, and knew that the family were in the country; and that upon meeting with the boy who kept the key, she desired him to go with her to the house; and by way of inducement, promised him a pot of ale. The boy accordingly went with her, opened the door and let her in, upon which she sent him for the pot of ale, and when he was gone robbed the house and went away. And this being in the night time, it was adjudged that the prisoner was clearly guilty of burglary.1

3. By conspiracy. "Thus, where a servant conspired with a thief to let him into his master's house to commit a robbery, and in consequence of such agreement, opened the door or window in the night time and let him in; this, according to the better opinion, was considered to be burglary in both the thief and the servant; and this doctrine is confirmed by a subsequent decision. Two men were indicted for burglary, and upon the evidence it appeared that one of them was a servant in the house where the offense was committed; that in the night time he opened the street door, let in the other prisoner, and showed him the sideboard, from whence the other prisoner took the plate; that he then opened the door and let the other prisoner out; did not go out with him, but went to bed. And upon these facts being found specially, all the judges were of opinion that both the prisoners were guilty of burglary, and they were accordingly executed."2

If the case now under consideration be a case of constructive breaking, it must come under one of the three heads into which that subject is divided by Russell as above set forth. It can not come under the first or the second, as the entrance was certainly not obtained by threats or fraud. If it comes under any of them it can only be the third, and on the ground that the entrance was obtained by conspiracy. Was it obtained by a conspiracy so as to be a constructive breaking within the meaning of the law in regard to burglary?

The conspiracy, if any, was between the prisoner, Clarke, and Henderson, who, with Dabney, jointly rented and occupied a room in the house of Fannie Straus, in which room was the trunk of Dabney, which, with its contents, was charged to have been stolen. If there were any such conspiracy, what was its object? Could it have been to break and enter the room of which Henderson and Dabney were joint tenants and occupants, of which each kept a key, and which, of course,

each had, at all times, either by day or night, a right to enter at pleasure? Or must it not have been only to steal the trunk of Dabney and its contents, which were in the room, and which were actually stolen, as charged in the indictment? They had no occasion to form a conspiracy to break and enter the room. They had a ready and lawful mode of entering, that through the door, which Henderson could at any time unlock. Dabney and Henderson and Clarke had rooms in the same house, the doors of the two rooms opening near each other on the same porch, and they frequently interchanged visits from one room to the other. Suppose Clarke had visited Henderson and Dabney's room in the latter's absence, and in the night time, and Clarke and Henderson had then agreed to steal Dabney's trunk, and had stolen it accordingly. Of course there would have been no burglary in that case. Could it make any difference that the agreement to steal was made before they unlocked the door and entered the room? Suppose it had been, as it may have been, made in Clarke's room, and the parties had then, immediately, stepped from Clarke's room into Henderson and Dabney's room and stolen the trunk of Dabney. Would the unlocking of the door of the latter room by Henderson, in that case, be a breaking of the room within the meaning of the law in regard to burglary, either as to Clarke or as to Henderson? The case stands upon the same ground on which it would have stood, in this respect, if Henderson had been the sole renter and occupier of the room jointly rented and occupied by himself and Dabney. Each joint tenant had the same rights of entry, at pleasure, into the joint room, as he would have had into his several

room.

Then, can a man commit burglary by breaking his own house, even by actually breaking it by violence, much less by unlocking the door, and entering in the usual way? Can he break it by mere construction of law?

We see nothing in any of the books to warrant the opinion that he can; and it would be contrary to principle and the very definition of the offense to say that he can. That definition is "a breaking and entering the mansion house of another," etc., not of one's own house. The offense is aimed at the dwelling-house of another, which is his castle, and which the law protects both against civil and criminal injuries. Here the offense was aimed, not at the dwelling-house of Henderson, that was thrown open to Clarke by the owner, or the occupant, but at the trunk of Dabney. It may be said that the joint room was the dwelling-house of Dabney as well as of Henderson, and so it was, but that, as before said, can make no difference. Dabney consented to rent a room jointly with Henderson, and thus consented that it should be the

dwelling-house of Henderson, with all the right of entry possessed by a sole occupant.

The cases of constructive breaking by conspiracy are cases in which one of the conspirators is not the owner of the house, but a servant of the owner, or one having a bare charge and not actual possession thereof; where there is a bare charge, the person having such charge may open the door and enter at pleasure, so long as he is acting in pursuance of such charge, and of the powers and duties which it confers or imposes. But whenever he conspires with another wrong-doer to open the door and let him in to commit a felony, and the opening and entering are accordingly done, both parties are guilty of burglary. There has been in that case a breaking and entering of the mansionhouse of another, in strict pursuance of the definition of the offense. The house is in no sense the house of the servant, who had only a bare charge in regard to it, and power conferred by that charge ceased to exist when the servant sought to pervert it to the injury of his employer by opening an entrance into his dwelling-house to a felon by night. Henderson stood in no relation of a servant to Dabney in regard to the room which they jointly occupied, but had the actual possession and legal right of possession of that room jointly with Dabney.

There is a case referred to in 1 Russell on Crimes,1 in which a guest at an inn broke open and robbed the room of another guest at the same inn, being aided in such breaking by the landlord, to whom he pretended that the other guest had stolen his goods. Mr. Baron Adams, who tried the prisoner, doubting whether the bed-chamber could properly be called the dwelling-house of the prosecutor, as stated in the indictment, the case was submitted to the consideration of the judges. They all thought that though the prosecutor had for the night a special interest in the bed-chamber, yet that it was merely for a particular purpose, viz. to sleep there that night as a traveling guest, and not as a regular lodger; that he has no certain and permanent interest in the room itself, but that both the property and possession of the room remained in the landlord, who would be answerable civiliter for any goods of his guest that were stolen in that room, even for the goods then in question, which he could not be unless the room were deemed to be in his possession. They thought also that the landlord might have gone into the room when he pleased, and would not have been at trespasser to the guest, the landlord in this case, says Russell, does not appear to have been privy to the felonious intent of the prisoner, but even if the landlord had been an accomplice in the act of the prisoner, it seems that his offense would not have been burglary; for though it

1 pp. 816, 817.

BEATTY, J. The defendants in this action were convicted of burglary. They moved for a new trial on the ground that the verdict was contrary to the evidence; and they now appeal from the judgment and the order overruling their motion for a new trial. The charge in the indictment is that the defendants broke into a tool-house of the Central Pacific Railroad with intent to commit larceny. The bill of exceptions contains all the testimony which in any wise tended to establish the guilt of the defendants and it amounts simply to this: the three defendants and one other person (who gave evidence for the State) were traveling along the line of the railroad from California toward the Eastern States. They broke into a tool-house of the railroad company one night, took therefrom a hand-car, placed it on the track, propelled themselves a distance of twelve miles, removed the hand-car from the rails to the side of the track and then left it. This is the whole case. There was not a particle of proof, and there can be no presumption, that the defendants broke into the tool-house with any other intent or purpose than that of taking the hand-car and using it as they did use it. If such taking and use was not larceny, there was no proof that the breaking into the tool-house was with the intent to commit larceny and that essential element of the crime of which they were found guilty was not proved.

We have no doubt that the taking and use of the hand-car was not larceny. The attorney-general does not contend that it was, and the only case to which we have been referred as sustaining the ruling of the District Court is that of People v. Juarez,1 but that case does not sustain the action of the District Court. It merely follows the case of Rex v. Cabbage, which established the principle that where there is an intent to deprive the owner of his property, it is not essential that the taking should be with a view to pecuniary profit lucri causa. We acknowledge the correctness of this principle. A man may be guilty of larceny if he takes another man's whisky, intending to drink it, though it is certain he will not be a gainer, pecuniarily or otherwise by the transaction. But although there may be larceny without any intent on the part of the thief to profit himself, we do not know of a case where it has been held that there can be larceny without any intent to deprive the owner of his property. And that is the case here. There is not the slightest ground for supposing that those defendants intended to deprive the railroad company of its property in this hand-car. They committed a trespass but they are not guilty of burglary,

The judgment and order of the District Court are reversed and the cause remanded. Remittitur forthwith.

1 28 Cal. 380.

2 R. & R. C. C. 292.