3. As to the manner of committing burglary: there must be both a breaking and an entry to complete it. But they need not be both done at once: for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars. There must in general be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass,) but a substantial and forcible irruption. As at least by breaking, or taking out the glass of, or otherwise opening, a window picking a lock, or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner has provided. But if a person leaves his doors or windows open, it is his own folly and negligence, and if a man enters therein, it is no burglary: yet, if he afterwards unlocks an inner or chamber door, it is so 5. But to come down a chimney is held a burglarious entry; for that is as much closed, as the nature of things will permit". So also to knock at the door, and upon opening it to rush in, with a felonious intent; or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have [227] been adjudged 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. And 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 intent, 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 afforded him of doing it with greater ease, rather aggravates than extenuates the guilt. As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries'. The entry may be before the breaking, as well as after: for by statute 12 Ann. c.7. if a person enters into the dwelling-house of another, without breaking in, either by day or by night, with intent to commit felony, or, being in such house, shall commit any felony; and shall in the night break out of the same, this is declared to be burglary; there having before been different opinions concerning it lord Bacon m holding the affirmative, and sir Matthew Hale" the negative. But it is universally agreed, that there must be both a breaking, either in fact or by implication, and also an entry, in order to complete the burglary. (19) 4. As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. And it is the same, whether such intention 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 of a house as has been before described, by night, with intent to commit a robbery, a murder, a rape, or any other felony, is burglary; whether the [228] 1 Hal. P.C. 555. 1 Hawk. P. C. c.38. § 11. Fost. 108. m Elem. 65. n 1 Hal. P. C. 554. (19) There must be an actual entry, though it need not always be made by actual force, but may be obtained by fraud, conspiracy, or threat. If, for example, the owner, intimidated by the threats of the robber, opens the door to him, and he enters, such entry will be burglarious; but if having opened the door under the same apprehension he throws his money or goods out to the robber, who carries them off without entry, this would not be burglary. In the text it is stated, that an entry even " with an instrument held in the hand is sufficient;" but it should seem that this must be understood not of an instrument used for the purpose of the breaking, but of one used for that of effecting the intended felony after the breaking is complete. Thus, the hook or the pistol mentioned in the text are means to procure the goods intended to be taken, the one immediately, the other mediately; but where the only evidence of entry was proof that the centrebit by which a panel of the house-door had been bored through, had penetrated within the house, the prisoners were acquitted. This was an instrument useful only to effect the breaking; and it was not ill-compared in argument with the breaking a wall by a pickaxe, and part of the pickaxe in the violence of breaking being within the house, which it was said could never be considered as evidence of an entry. Hughes' case, 1 Leach, Cr. C.406. thing be actually perpetrated or not. Nor does it make any difference, whether the offence were felony at common law, or only created so by statute; since that statute, which makes an offence felony, gives it incidentally all the properties of a felony at common law°. (20) THUS much for the nature of burglary; which is a felony, at common law, but within the benefit of clergy. The statutes, however, of 1 Edw. VI. c.12. and 18 Eliz. c.7. take away clergy from the principals, and that of 3 & 4 W. & M. c.9. from all abettors and accessories before the fact. And, in like manner, the laws of Athens, which punished no simple theft with death, made burglary a capital crime . (21) (20) The intent must be actually felonious, not merely so by construction of law; thus, if the intent be to beat a person, it will not be burglary, though killing or murder should be the consequence. Where, indeed, one premeditatedly does an unlawful act, the law, in judging of that act, will presume him to have intended all the consequences that naturally flow from it, and, therefore, in such a case, would presume the beating to have been done with intent to kill; in such a case it would be immaterial at what stage in the transaction the intent to kill was first conceived, and it may very well be supposed to have entered into the man's heart subsequently to the first intent, and yet before the fatal blow given. But in this case the felonious intent must have been conceived before the entry; and though the commission of a felony is pregnant evidence of such an intent, it is not conclusive. See East's P. C. c. xv. s. 22. (21) As to the trial and punishment of accessories before the fact to burglary for a misdemeanour, see 3 G. 4. c. 38. ante, p. 40. n. 5. CHAPTER THE SEVENTEENTH. OF OFFENCES AGAINST PRIVATE THE next and last species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larciny, and malicious mischief: and one, that is equally injurious to the rights of property, but attended with no act of violence; which is the crime of forgery. Of these three in their order. I. LARCINY, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larciny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larciny, which also includes in it the aggravation of a taking from one's house or person. AND, first, of simple larciny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larciny; when of goods to that value, or under, is petit larciny; offences which are considerably distinguished in their punishment, but not otherwise. (1) I shall therefore first con (1) This distinction is now nearly obliterated, as petit larciny was always punishable by whipping and imprisonment, and is now by transportation or hard labour. 4 G. 1. c. 11., 53 G. 3. c. 162. Still, as grand larciny is capital at common law, and the benefit of clergy is, strictly speaking, available only once, on a second offence the punishment might be death; whereas, petit larciny, however often repeated, can never be capital; conviction, too, of grand larciny incapacitates from giving testimony, till the punishment be suffered; petit larciny never has this effect. 31 G.3. c.35. sider the nature of simple larciny in general; and then shall observe the different degrees of punishment inflicted on it's two several branches. 66 SIMPLE larciny then is "the felonious taking, and carrying away, of the personal goods of another." This offence certainly commenced then, whenever it was, that the bounds [230] of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature,, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his present use, seems to be the only offence of this kind incident to such a state. But unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen, any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of considerable doubt. At present we will examine the nature of theft, or larciny, as laid down in the foregoing definition. 1. Ir must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larciny. As if A lends B a horse, and he rides away with him: or, if I send goods by a carrier, and he carries them away; these are no larcinies. But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcinies; for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. (2) But bare non-delivery shall not of course be * See Vol. II. p. 8. &c. b 1 Hal. P. C. 504. <3 Inst. 107. (2) This point, so shortly stated in the text, has given rise to much discussion; the principle, however, on which the numerous cases turn, is very simple and clear. Wherever a person delivers goods to another, he intends thereby to part with the property, and the possession of them, or with the possession only. In the first case no larciny can be committed by |