was not in the course of a legal defence; at any rate the leave of the court was not asked for that purpose until according to the regular course of procedure the arguments for the State and the prisoner had been concluded. Taking this to be true the court might very well have refused to allow the defendant to make the statement he desired. For the error in the first question considered, the judgment is reversed and the defendant is directed to remain in custody to await a trial, de novo, unless in the interim he be discharged by due course of law. BURGLARY-SERVANT. LOWDER v. STATE. [63 Ala. 143; 35 Am. Rep. 9.] In the Supreme Court of Alabama, 1879. A Servant and Office Boy of an attorney at law intrusted with the key of the front door of the office and entering at night by using the key, with intent to steal, the attorney sleeping according to custom in an inner room, is guilty of burglary; but not so if the boy is in the habit of sleeping in the office, to the knowledge of his employer and enters to go to bed, and after entering forms the design to steal. Conviction of burglary. The opinion states the facts. H. C. Tompkins, Attorney-General, for the State. MANNING, J. Appellant was indicted for burglary, in entering at night through the outer front door the office of Sayre & Graves, attorneys at law, from which an open door let into an adjoinging bed-room, where Mr. Sayre lay, having gone to bed. The evidence tended to show that defendant went from the office after entering it into the bed room, to steal money from the pocket-book of Mr. Sayre, which he had placed between the mattresses of the bed on which he was lying. And the defence is that he being a servant of Sayre & Graves and intrusted as such by them with the key of their office, defendant was not guilty of burglary. According to Mr. Sayre's testimony, defendant was then and previously in the employment, of Sayre & Graves as a servant in witness' bed-room, and as an office boy to their law office, the same mentioned in the indictment" and had received from them, to be used "for the purpose of his employment" a key to the office front door, and that he entered through said front door, and by use and means of said key defendant could have ingress into said office at will; but (his) duties did not call him there at night, nothing being said to him as to that." In 2 Russell on Crimes, it is said: "It will also amount to a burglary if a servant in the night time open the chamber door of his master or mistress, whether latched or otherwise fastened, and enter for the purpose of committing murder or rape, or with any other felonious design." In Edmonds' Case in the time of James I,2 the jury returned this special verdict: "We find that Richard Heydon, and Christian his wife, were both in bed and at rest in an upper chamber of the mansion house of the said Sir Richard Heydon; and that the said William Edmonds then was and yet is the servant and apprentice of the said Richard, and that he then lay in another chamber of the said house remote from the bed-chamber of his said master and dame, and that there was a door with a latch at the stairs' foot of the said bed-chamber of the said Heydon, but none at the stairs' head, being the entrance into the said bed-chamber of the said Heydon. We find that the said William at the said time in the indictment, drew the latch of the stair foot door and opened ths said door, being then latched, and went up the stairs and entered the bed-chamber of his said master, with an intent to murder the said Heydon and that he did then and there" wound, etc. Of the ten judges to whom the case was submitted nine " agreed that it was burglary" and the other doubted. Similar to this are the the cases of Gray 3 and Bowen 4 in which the judgments are the same. In Cornwall's Case,5 ,5 "defendant was a servant in the house where the robbery was committed, and in the night time opened the street door and let in the other prisoner and showed him the sideboard, from whence the other prisoner took the plate; then the defendant opened the door and let him out, but did not go out with him but went to bed." Whether this was burglary in the servant was doubted at the trial, but at a meeting of all the judges they unanimously held "that it was burglary in both and not to be distinguished from the case that had been often ruled that if one watches at the street * end while the other goes in it is burglary in all." In this latter case the servant did not break into and enter the house; he was already in and did not go out, and the other did not himself do any house-breaking to get in; he only entered through a door which the servant of the house intrusted with the key opened for him. But the idea, though not expressed, upon which this opinion was based seems to have been that the outsider was guilty of burglary in obtaining entrance 1 Sharwood's ed. of 1877, p. 7. 2 Reports of Sir Richard Hutton in black letter, p. 20. 3 1 Str. 481. 44 Cranch, C. C. 604. 5 2 Str. 881. by the aid of the unfaithful servant as truly as if it had been effected by an inanimate instrument, and it followed that the servant was guilty of the same offense, because he was present aiding and abetting. Would there have been any question made whether the servant was guilty or not, if instead of being and staying within the house he had come with his confederate to the door on the outside, and had opened it with the key intrusted to him, and both had gone in and stolen the plate? If not why should not the servant in view of the other cases, above cited, be held guilty of burglary if without a confederate he had opened and gone into the house alone, and immediately stolen the plate himself? An opening for this purpose was no less unlawful, and it would appear as much a burglary as an opening to let in another thief. By the common law a servant would be guilty of larceny of the felonious taking and carrying away—of the money or goods of his master, even if they had been handed and intrusted to him to be carried to another person, by appropriating them to his own use. And so though he might have the privilege of opening and entering his master's mansion house to go to bed therein, he would, it seems to me, be guilty of burglary if he unlocked and entered it in the night time with the intent to rob, and did then commit robbery therein; only, to justify a conviction in such a case the jury ought to be satisfied by the evidence beyond a reasonable doubt, that the intent to rob existed when the house was entered, not formed afterwards. * * and steal goods, statute, Doubt is cast upon this view by a passage of Sir Mathew Hale's, in commenting on some statutes of Elizabeth's reign, in which he says: "If the servant unlatch a door, or turn a key in a door in the house, and steal goods out of that room, * * yet it seems to me the servant shall not thereupon be ousted of his clergy, for the opening of the door in this manner is within his trust, and so no breaking of the house or robbery within this act. But if a servant break open a door whether outward or inward, this is a robbery and breaking the house within the for such a breaking, though by a servant in the night, glary, for such an opening is not within his trust.” 1 it is remarked in Russell on Crimes:2 "It seems to have been considered that the question whether such act would amount to a breaking, must depend upon the point whether the door might have been opened by the servant in the course of his trust and employment." But doubt of this is intimated in a note added with a sed quæere and referenee to Edmonds' Case.3 We have, therefore, supposed we might consider the question as not settled by the passage in the Pleas of the Crown. would make burOf these passages We are of the opinion that the charge given by the judge of the City Court to the jury was upon this point as favorable to the appellant as the law would allow. Of course, if he went in only to go to bed, and had the right to do so from his employers, or was accustomed to sleep there at night with their knowledge and without objection, he would not be guilty of burglary, though after entering the office for that purpose only he formed the desire to steal. The charge was asked for appellant and refused, that upon the evidence they must find the defendant not guilty. And we think it ought to have been given. There was no evidence that the defendant had opened the door of the office at all, for there was none that it was shut before he entered. For the error of refusing this charge the judgment of the Circuit Court must be reversed, and the cause be remanded. Let the defendant remain in custody until discharged by due course of law. Reversed and remanded. BURGLARY-ENTERING NECESSARY-INSUFFICIENT EVIDENCE. Ross v. STATE. [16 Tex. (App.) 554.] In the Court of Appeals of Texas, 1884. 1. Definition of "Entry."-In a trial for burglary the trial court charged the jury on the subject of "entry" as follows: "It is not necessary that there should be any actual breaking to constitute the offense of burglary, when the entry is in the night time. An entry into a house in the night time, without the consent of the owner, or some other person authorized to give consent, with intent to commit a theft, is an entry by force, as meant in the law." Held, error; that to constitute burglary the entry must be by "force," ," "threats" or "fraud," whether committed in the day time or night. The definition of entry in article 706 of the Penal Code, which makes it to include, within the meaning of article 704, every kind of entry but one made with the free consent of the occupant or of one authorized to give such consent, does not eliminate from the offense the element of force, nor dispense with the necessity of alleging and proving an entry by force. But if the entry is at night, the slightest force suffices. 2. Possession of Recently Stolen Property - Burden of Proof. The explanation of a defendant when first found in possession of stolen property, if reasonable, imposes upon the State the burden of proving its falsity. 3. Same-Evidence Insufficient.-See the statement of the case for evidence held insufficient to sustain a conviction for burglary. APPEAL from the District Court of Walker. Tried below before the Hon. J. R. KENNARD. The conviction in this case was for the burglary of the house of J. L. Smith, with the intent to commit theft. A term of two years in the penitentiary was the penalty imposed. J. L. Smith was the first witness for the State. He identified the defendant on trial as Edgar Ross, the party charged in the indictment. About two years prior to this trial, the witness was operating a steam grist mill at his mill property in the town of Huntsville, and at the same time a kind of junk business, buying old scraps of brass, iron, rags and bones. His mill was near the railroad depot, fronting on a public street in the town of Huntsville, and on the railroad's right of way. On one occasion the witness missed a brass kettle, a brass bearing," and other articles including a brass pump, from his mill. These articles belonged to the witness, and were taken without his consent. J. D. Clarke had a steam mill about three or four hundred yards distant from the witness' mill, and on the opposite side of the depot. He likewise was engaged in buying scrap iron and brass. A short time. after the witness missed the articles named, he went to Mr. Clarke's mill and made inquiries about them. Mr. Clarke readily permitted witness to examine his scraps. Among them witness found, in ten or a dozen pieces, about fifty pounds of brass scraps belonging to him. Two or three weeks prior to this, the witness lost the key to his mill, and had another key made, and locked his door every night. When witness began to miss articles, he became satisfied that some person was in the habit of entering his mill at night and removing articles. To ascertain whether or not this was true, he arranged a trap one night, by attaching a string to a tin can, and so placing the can that any one entering the mill by opening the door would throw the can down. The witness then had a new lock put on the door, after which he missed no more articles. Witness had a part of the brasses back under a bench on the sill of the house. The defendant was very frequently about the witness' mill. Some time before the can experiment, and very early in the morning, the witness saw the defendant running from the direction of his mill. The trap experiment described was on or about May 10, 1882. Meal and corn, as well as brass, was taken from witness' mill before the new lock was put on. On the morning after the new lock was put on, the witness discovered footprints about the door, and a place where some party or parties had urinated against the mill. Cross-examined, the witness said that, at the time of the burglary, his mill was a public place. It was a common corn mill, operated by steam, in which the witness did grinding for the public. Witness had no hands to assist him, but did all the work himself. He was his own fireman, engineer and miller. He opened his mill at daylight, and closed and locked it about dark. Except at meal times and when called off by business matters, the witness was always at his mill during the |