sumption that the party intended to steal, and this presumption stands until explained by other evidence. In an indictment for breaking, etc., with intent to commit a felony, the actual commission is so strong a presumptive evidence, that the law has adopted it, and admits it to be equivalent to a charge of the intent in the indictment. But where one lawfully enters a house, it by no means follows, that because he steals, while there, he entered with that purpose. The act of stealing is evidence of the intent to steal; but it is hardly sufficient to rebut the presumption that when he lawfully entered, he entered for a lawful purpose. To hold that, for a lawful entry, a party could be punished, because, after such entry, he does an unlawful act, would be to find him guilty of a crime by construction; a result which the law, in its endeavors to ascertain the real intention of the accused, invariably, in theory, avoids, and which has seldom, in modern times, happened in practice.

A case is put by Lord Hale, the reasoning of which is analogous to that we have used in this case. "It is not a burglarious breaking and entry, if a guest at an inn open his own chamber door, and takes and carries away his host's goods, for he has a right to open his own door, and so not a burglarious breaking." 1

If a burglary could not be committed because the party had a right to open his own door, notwithstanding the subsequent larceny, the same principle would seem to be applicable here, where the prisoner had a right to enter the house, and where, by parity of reasoning, his subsequent larceny would not make his original entry unlawful. For these reasons, the judgment of the court is, that the verdict be set aside and a

One who Secretes Himself in a Dwelling-house at night with intent to commit a felony therein and being discovered, escapes by unlocking or opening a door, is not guilty of burglary.

CONVICTION of burglary. The opinion states the facts.
Attorney-General Heiskell, for the State.

No counsel named for defendant.

FREEMAN, J. This is an indictment, charging that defendant unlawfully, feloniously and burglariously did break and enter the mansion house of Margaret Mallon, in the night-time with the unlawful and felonious intent, then and therein, her, the said Margaret Mallon, unlawfully, forcibly, feloniously and against her will, to have carnal knowledge of, against the peace and dignity of the State, etc. The jury found the defendant guilty as charged and affixed punishment in the penitentiary for twelve years and six months. The facts shown are substantially as follows:

Mrs. Mallon, a widow lady kept a grocery store in Nashville in the front part of her house; her bed-room and kitchen were in the rear part of the building. On the day of the alleged offense the back doors of the house were open, as well as the windows, and remaining so until about ten o'clock at night. About this time she closed the front doors, went into the back part of the house, let down the windows, shut the doors and locked them on the inside, leaving the keys in the locks. She then went to her bed and moved it from the wall, in order to adjust the mosquito bar, when she felt the bed strike against something under it, which she then supposed to be a dog. She went into the front room, got a candle and returned. On looking under the bed she saw the defendant lying on his side with a large pocket knife open in his hand. She ran to the front door crying robber, asking for help, and giving a general alarm. Parties near by ran into the house when defendant went out at the back door, unlocking it, and fled. He was pursued and soon after captured. She had known defendant some years. He had been in front of the house eating watermelons in the evening with some other negroes and had been ordered away by her because of the dirt made by the party. He had been refused credit by her as she says, some three years before, when he replied, " he would get even with her yet." The house of Mrs. Mallon was situated in a thickly settled part of the city other houses close to it.

It is clear from the testimony that defendant went into the house at an open door, and secreted himself under the bed, with the purpose we have no doubt, of committing some felony, but what that was to be we have no means of determining except such as are furnished by the above

facts.

Burglary is defined by the Code1 to be breaking and entering into a mansion house by night with intent to commit a felony. This is substantially the common-law definition. By section 4674 it is provided that if any person who after having entered any of the prem

1 sec. 4672.

offenders. It was evidently designed to prevent the danger of an acquittal of the guiltiest parties by reason of a failure to convict those who are merely their tools. Where the statute has so definitely specified all the persons who could, under any circumstances, be guilty, and has divided them into two distinct classes, it seems to be no more than reasonable to deduce an intention to require each to be charged with his own statutory offense, in the language or substance of the statute, and not to leave it optional with the prosecutor to charge the defendants according to the facts, or against the facts by legal fiction. The danger of it appears on the present record, where it became a serious question whether the plaintiffs in error might not be entitled to an acquittal on account of the want of guilty knowledge of their co-defendants, who in turn may have been exposed to prejudice by being joined with them. If separately informed against according to the parts they are severally charged with having taken in the transaction, the issues will be more fairly presented and the results more satisfactory. The judgment must be reversed, and the verdict set aside, and it must be certified to the court below that there should be a new trial, but that the plaintiffs in error can not be convicted under the information, unless they were present at the burning. The other justices concurred."

PART II.

BLACKMAILING AND THREATENING.

BLACKMAIL-THREATS OF INJURY.

BRABHAM V. STATE.

[18 Ohio St. 485.]

In the Supreme Court of Ohio, 1869.

In the Course of Business H. made and delivered to B. a promissory note, without the stamp required by law. Shortly afterward B. sent to H. a letter as follows: “WASHING. TON COUNTY, Dec. 2, 1865. - MR. W. D. HALL. - Dear Sir: Upon examining the excise law, I find that note you made me require stamp, and that you are liable to fine of two hundred dollars for not stamping it. You will please call immediately and make satis. faction, and save yourself trouble. Yours with respect. W. A. BRABHAM." Held: That this was not the sending of a letter containing threats of injury, "or with the intent of for the purpose of extorting money or other valuable things" within the statute; and the fact that at a subsequent interview between the parties threats were orally made which did result, wrongfully or rightfully, in extorting a valuable thing, does not alter the case.

ERROR to the Court of Common Pleas of Washington County.

At the March term, 1866, of the Common Pleas of Washington County, Brabham was indicted for that, on December 2, 1865, he sent a letter, signed by himself, to one Willard D. Hall, containing willful and malicious threats of injury to Hall, to wit, threats of accusing him of the crime of making and issuing and delivering to Brabham a promissory note for the payment of money to him, without duly stamping the note, with intent to evade the provisions of the revenue laws of the United States; and that the intent of the letter was to extort money from Hall. The letter, as set out in the indictment, read as follows: :

"Mr. W. D. Hall:

"WASHINGTON COUNTY, Dec. 2, 1865.

DEAR SIR: Upon examining the excise law, I find that note you made me require stamp, and that you are liable to fine of two hundred dollars for not stamping it. You will please call immediately and make satisfaction and save yourself trouble.

"Yours with respect,

"W. A. BRABHAM.”

The defendant demurred to the indictment, for that it does not con

tain any charge of a crime known to our law.

The demurrer was over

ruled, and a plea of not guilty entered, and the parties went to trial. It appears from the bill of exceptions that Brabham, as attorney for a Mrs. Chandler, whose boy had lived with Hall, called upon Hall on the 22d of November, 1865, and collected of him two hundred and eighteen dollars, for money the boy, when he went into the army, had left with Hall. At the same time, Brabham wanted Hall to pay fifty dollars more for the wages of the boy while he lived with him. Hall replied that the boy had been going to school, and offered ten dollars for his services. Brabham refused to take that sum, but they finally agreed upon fifteen dollars, for which Hall gave the note that was not stamped.

Hall received the letter by mail, and on the 7th of December, 1865, called at Brabham's residence to see him about it, bringing a stamp to put upon the note, and told him that he was ready to stamp and pay it. Brabham replied that that was all right. The State offered to prove that Brabham then said that there was another matter that must be settled; that Hall had not told him the truth, on the settlement, about the time the boy had attended school, and that might either give him a note for one hundred dollars, or he would prosecute him for a violation of the revenue laws, and that he would have to pay a fine of two hundred dollars; and that Brabham read a circular from the treasury department to that effect. Brabham objected to the admission of this evidence, but the objection was overruled, and exception taken.

There was some conflict of testimony as to what was said and done when Hall went to Brabham with the letter. The result of the interview was, that Hall gave Brabham his note at six months for one hundred dollars; and it would seem from the testimony, that it purported to be for the services of the Chandler boy.

No further statement of the testimony is material to an understanding of the opinion of the court.

The jury found the defendant guilty as charged in the indictment. Thereupon, he moved for a new trial for the following reasons:

1. The court erred in admitting the testimony objected to by defendant.

2. The verdict is against the weight of the evidence.

3. The evidence does not show the commission of the crime charged in the indictment.

This motion was overruled, and exception taken.

The judgment on the verdict was, that the defendant pay a fine of one hundred dollars and the costs.

To reverse this judgment this writ of error is prosecuted.