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and rob the house. All these entries have been held burglarious though there was no actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process. So if a servant opens and enters his master's chamber door, with a felonious design; or if any other person lodging in the same house, or in a public inn, opens and enters another's door, with such evil intini, it is burglary. Nay, if the servant conspires with a robber, and lets him into the house by night, this is burglary. in both; for the servant is doing an unlawful act, and the opportunity af, forded him of doing it with greater ease, rather aggravaty s than extenuates the guilt. As for the entry, any the leasi degree of it with any part of the body, or with an insirencat held in the hand, is sufficient, -as to step over the threshold, to put a hand or hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries. If a man enters by night by the doors open, with the intent to steal, and is pursucd, whereby hự opens another door to make his escape, this is not burglary; for he broke and went out, not broke and entered. There must be both a breaking, either in fact or by implication, and also an entry, to complete a burglary.
4th, As to the intent; such breaking and entering must be with a felonious intent, otherwise it is only a trespass. And it is the same thing whether such intertion be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge : and therefore such a breach and entry as has been before described, by night, with inteet to commit a robbery, a murder, a rape, or any other solony, is burglary, whether the thing be actually perpetrated or not: and it makes no difference whether the offence were felony at common law, or only created by statute or act of assembly; for a statute or act which makes an offence felony, gives it incidentally all the properties of a felony at common law.
This offence is a capital felony with respect to the principals.
By acts of 1806, c. 6, it is declared that if any person or persons shall break any dwelling house, shop, warehouse, or other out house thereto belonging, or therewith used, in the day time, and feloniously take away any money, goods, or chattels, of the value of twenty shillings or upwards, therein being, although no person shall be within the same ; or shall comfort, aid, abet, assist, counsel, hire, or command any person or persons to commit such offence, and bring iheri
of lawfully convicted, shall suffer death without benefit of clergy.
CATTLE, HORSES, AND HOGS. By the laws of this state, if any person or persons whatso ever, either inhabiting Virginia or this state, shall after the ratification of this act, presume to drive, lead, transport, or carry any cattle, horses, or hogs to range upon any person's lands, shall forfeit and pay the sum of ten pounds; and that no person or persons whatsoever, inhabiting this state shall give leave to any other person or persons, either inhabitant or foreigner, to turn loose, drive, or put on his land, any cattle, horses, or hogs, under the like penalty of ten pounds.
No foreigner whatsoever, either by consent or permission of any other person or persons inhabiting this state, or other- , wise, shall presume or offer to drive, lead, or bring into this state, any stocks of cattle, hogs, or horses, with intention to winter them here, or to destroy the herbage or mast, under the penalty of twenty pounds. It is hereby meant and in. tended, and so shall be understood and taken, that no person shall be deemed an inhabitant that holds lands by entry, survey, or patent; but such as actually and constantly reside on such lands, or keep the same always tenanted, cultivated, and improved.
The ranger of each precinct or division where such offence shall be cominitted, or on his default, the keeper of the toll. book is hereby appointed to make distress of such cattle, hogs, or horses of any person or persons so offending. half of which fine or, forfeiture, shall be to the ranger or keeper of the toll book, whichsoever shall make the distress, and the other half to the justices for the use of the county where the offence shall be committed.
When such distress is made, or which may hereafter be made by the owner of the land, as well as the officers aforesaid, the stock so distrained shall be kept four days, unless sooner redeemed or replevied by the owner, who, on paying the penalty and the reasonable charges, shall have them at any time within four days after seizure; otherwise, after the
expiration of the said four days, they shall be appraised by three indifferent freeholders, to be appointed and sworn by some magistrate, and the property shall be immediately vested in the person or persons seizing the same, he or they returning the said appraisement to the clerk of the county court, with an exact account of the marks or brands of such horses, cattle, or hogs, which shall be set up at the court house the next court; and any person proving the right to such horses, cattle, or hogs, at any of the four next courts in the said counties, after such return of that appraisement, having given the distrainer notice, shail have an order or judgment of the said court for the overplus, according to the appraisément, the penalty and charges deducted.
No person, being an inhabitant of this state, and not having a freehold of fifty acres of land, or possessed of, or occupying lands or tenements, shall keep, as owner, a stone-horse or horses, or unspayed mare or mares, or any more than one gelding, or spayed mare to run at large.
If any person, not qualified as aforesaid, shall keep any horse , spayed mare, as aforesaid, it shall and may be lawful for any person to take up the same, who is obliged and directed to give notice thereof in writing, to the owner, within three days after such taking up; which owner shall have liberty to appear at the next succeeding court of the county wherein he dwelleth, and if he can prove to the satisfaction of the said court, that he is qualified according to law, to keep such horse or mare so taken up, he shall have the same restored ; but if he shall fail in his proof aforesaid, he shall pay to the person taking up, twenty shillings for every horse or more so taken up : and if the owner of such horse or mire shall re. fuse to pay the aforesaid sum of twenty shillings, that then it
mare to sell the same at public vendue, to the highest bidder; and one-half of the money arising by such sale to take to himself, and the other half he shall deliver to the owner of such horse or mare.
Where the information of the taking up of such horses or unspayed mares as aforesaid, shall happen to be made to the owner or owners within less than ten days before the sitting of the court of the county where such owner resides, in such case he shall have liberty to appear at the next succeeding court after such court, to prove himself a freeholder, or pose sessed of, or occupying lands or teñements.
No person whatsoever, in this state, shall suffer or let go at large, any stone-horse or stone-horses of two years old or upwards, upon penalty of forfeiting such horse or horses, or the sum of twenty shillings to the taker up of every such stone-horse, provided the same be found running at large, and not within the confines of any fence, water, marsh, or swamp.
The taker up of such stone-horse shall, within ten days after the taking up thereof, carry the same horse and make oath before some justice of the peace, of his taking up the same; which proof being made the justice shall cause such stone-horse to be measured, and upon finding him not full thirteen hands high at two years old as aforesaid, the justice shall give a certificaie, from' under his hand certifying the same ; and thereupon the taker up of such horse or horses so doing, shall keep the same until the owner shall redeem such horse or horses,by paying the sum of twenty, shillings aforesaid to such taker up.
Such taker up shall set up advertisements, describing the said horse or horses, with his or their colour and brand, at the county court house door where such owner shall live or reside ; and if the owner of such horse or horses shall within ten days after such notice given, tender to the taker up there. of, by paying the sum of twenty shillings or giving security for the payment thereof, that then, and in such case, such owner shall recover and redeem such horse or horses ; otherwise the taker up thereof is hereby entitled to the right and property of such horse or horses : any law, usage, or custom to the contrary notwithstanding.
No person within this state shall presume to drive or kill any stock on any person's land within this state, except neighbours whose lands are very near adjacent, without leave first had and obtained from the owner of the said land whereon he or they shall be found ranging or hunting, contrary to law, under the penalty of five pounds for each and every time he or they shall be found ranging; the one-half to the owner of the land, and the other half to the informer: to be recovered by a warrant from two justices, which said justices are empowered finally to hear and determine the same. If any free
person or persons shall steal any neat cattle or hog, or shall alter or deface the mark or brand of any other person or person's horse, neat cattle, or hog, such person or persons, being thereof lawfully convicted, shall, for every neaf cattle, or hog he or they shall steal ; 'or for every horse, mares colt, neat caitle, or hog, whose mark or brand he or they shal atter or deface, over and above the value of such neat cattle or hog so stolen ; or for every horse, mare, colt, neat cattle, or hog whose mark or brand he or they shall alter or deface, forfe it and pay the sum of ten pounds, to be recovered by action of debt in any court of record within this state by the owner of such horse, mare, colt, neat cattle, or hog, that shall be so stolen, or the mark or marks, brand or brands so altered or defaced; provided he prosecute for the same within six months after discovery of the fact committed : and after that time any person may, as well as the owner, sue for and recover the same, provided sach prosecution is commenced within one year after discovery of the fact committed : and the offender'shall, over and above the said fine, receive forty lashes, on his bare back, well laid ons and for the second offence shall pay the fine above mentioned, and stand in the pillory two hours, and be branded in the left hand, with a red hot iron, with the letter T. And if any person or persons shall mismark or misbrand any unbranded or unmarked horse, mare, or colt, neat cattle, or hog not properly his or their own, he or they shall forfeit and pay the sum of ten pounds, over and above the value thereof, for every such horse, mare, colt, neat cattle, or hog, so mismarked or misbranded ; to be recovered as aforesaid.
If any person or persons shall see any other person er per. sons committing any of the crimes aforesaid, and shall not discover the same, in ten days, to some magistrate, then and in such case, such person or persons, for not discovering the said crime, shall forfeit the sum of five pounds, for every time he shall see the said crime or crimes, or any of them, committed ; to be recovered by any person who will sve for the saine by warrant before a justice of the peace.
It shall be sufficient evidence to convict any person who has seen any of the aforesaid crimes committed, if it be proved that he has told any other person that he did see the said crimes, or any of them, committed. If any person
hereafter shall kill any one or more neat cattle or hogs in the woods, he shall within two days, show the head and ears of such hog or hogs and the hide with the ears on, of such neat beast or cattle, to the next magistrate or to two substantial freeholders, under penalty of five pounds; to be recovered by any person who will sue for the same by warrant as aforesaid.
Every person in this state who hath any horses, cattle, er. hogs, shall have an ear mark and brand different from the ear mark and brand of all other persons; which ear mark und