goods are contained or stored, an office,32 railroad cars, or any house,84 or building,35 or buildings not adjoining to or occupied with a dwelling house.36 therein is not enough. So the breaking and entering of a cottonseed warehouse where valuable goods are stored is not burglary unless it is shown that it was being used as a place of business at the time. Jones v. State, 12 Ga. App. 813, 78 S. E. 474. A depot is within such a provision. Daniels v. State, 78 Ga. 98, 6 Am. St. Rep. 238. 32 Such a provision covers an office inside of a building, as a ticket office in a railroad depot. State v. Perry, 165 Iowa 215, 145 N. W. 56. 33 Delaware. State v. Davenport, 2 Boyce, (25 Del.) 12, 77 Atl. 967. Georgia. Farm v. State, 24 Ga. App. 114, 100 S. E. 36. Illinois. Brennan v. People, 110 Ill. 535; Lyons v. People, 68 Ill. 271. Iowa. State v. Burns, Iowa 179 N. W. 843. - Montana. State v. Green, 15 Mont. 424, 39 Pac. 322. West Virginia. State v. Ringer, 84 W. Va. 546, 100 S. E. 413; State v. Jones, 84 W. Va. 85, 99 S. E. 271. Wisconsin. Nicholls v. State, 68 Wis. 416, 32 N. W. 543, 60 Am. Rep. 870. The state must show that goods, merchandise, or valuable things were kept for use, sale or deposit in the car, where the statute makes that an element of the offense. State v. Dolson, 188 Iowa 629, 176 N. W. 678. 34 State v. Dan, 18 Nev. 345, 4 Pac. 336. The Texas statute defines a house as "any building or structure erected for public or private use, whether the property of the United States, of this state, or of any public or private corporation or association, or of any in dividual, and of whatever material it may be constructed."' 1 Vernon Crim. St. 1916, Art. 1309. A show case or show window built into and forming a part of a store building is a house within this provision. Lewis v. State, 72 Tex. Cr. 377, 162 S. W. 866; Williams v. State, 72 Tex. Cr. 371, 162 S. W. 838. And so is a corncrib used solely for storing feed for stock. Barber v. State (Tex. Cr.), 69 S. W. 515. If on an indictment for burglary of a house the evidence shows that the house was a dwelling house where a family resided, there is a fatal variance, and a conviction cannot stand. Martinus v. State, 47 Tex. Cr. 528, 84 S. W. 831, 122 Am. St. Rep. 709. 35 State v. Dan, 18 Nev. 345, 4 Pac. 336. The word "building" includes a cellar or basement under a building, State v. Brower, 127 Iowa 687, 104 N. W. 284; People v. Walton, 159 N. Y. App. Div. 289, 144 N. Y. Supp. 308; and rabbit pens. State v. Terrell, 55 Utah 314, 186 Pac. 108. The words or other building" in the Illinois statute include a stable, Orrell v. People, 94 Ill. 456, 34 Am. Rep. 241; a chicken house, Gillock v. People, 171 Ill. 307, 49 N. E. 712; and a hotel, Bruen v. People, 206 Ill. 417, 69 N. E. 24; but not an "engine room." Kincaid v. People, 139 Ill. 213, 28 N. E. 1060. 36 People v. Smith, 92 Mich. 10, 52 N. W. 67; People v. Shaughnessy, 89 Mich. 130, 50 N. W. 645; People v. Parrow, 80 Mich. 567, 45 N. W. 514. The following have been held to be within this provision: A factory or shop, People v. Wycoff, 150 Mich. 449, 114 N. W. 242; a basement and store § 461. Occupancy of the premises. To be the subject of burglary at common law, or to come within a statute punishing the breaking and entry of a dwelling house, the house must be occupied as a dwelling. It is not enough that it is suitable for a dwelling, and that it is intended to occupy it, even in the near future.37 The test generally applied is whether the building is permanently used by the occupier or by any of his family or servants as a place to sleep in.38 It it not necessary, however, if the house is occupied, that any person shall be actually in it at the time of breaking and entering.30 So if the occupant of a house leaves temporarily, with the intention of returning, though he may remain away for some time, the house remains connected with rooms above where the owner lived, People v. Griffin, 77 Mich. 585, 43 N. W. 1061; rooms in a building which are rented and used as a post office. People v. Burke, 161 Mich. 397, 126 N. W. 446. The following have been held not to be within it: a store under same roof with dwelling, but with a separate entrance and leased to and separately used by a different person, People v. Nolan, 22 Mich. 229; a store under rooms occupied by a clerk of the proprietor, where there was no internal communication between them. People v. Van Dam, 107 Mich. 425, 65 N. W. 277. That a store was not adjoining to or occupied with a dwelling house is a necessary element of the offense and must be proved. People V. Levey, 206 Mich. 129, 172 N. W. 427. 37 Fuller v. State, 48 Ala. 273; Smith v. State, 80 Fla. 315, 85 So. 911; Scott v. State, 62 Miss. 781; Rex v. Thompson, 2 East P. C. 498, 2 Leach C. C. 771; Rex v. Lyons, 2 East P. C. 497, 1 Leach C. C. 185; Rex v. Martin, Russ. & R. 108. 38 Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Smith v. State, 80 Fla. 315, 85 So. 911. A building does not become a dwelling house though used for tak ing meals and other purposes, unless the person occupying it, or some one of his family or servants, usually sleep in it at night. Scott v. State, 62 Miss. 781; Rex v. Martin, Russ. & R. 108. It is not enough that persons other than members of the owner's family or servants have been procured to sleep in it for the purpose of protecting it. Rex v. Harris, 2 Leach C. C. 701. Contra, Com. v. Brown, 3 Rawle (Pa.) 207. 39 Illinois. Schwabacher v. People, 165 Ill. 618, 46 N. E. 809. New Jersey. Downs v. New Jersey Pennsylvania. Com. v. Brown, 3 Rawle 207. Texas. Davidson v. State, 86 Tex. Cr. 243, 216 S. W. 624. Virginia. State v. Williams, 40 W. Va. 268, 21 S. E. 721. England. Anon., Moore, 660, pl. 903; Resolution of Judges, Poph. 52. This is true under a statute punishing breaking and entering an "inhabited dwelling house." State v. Mason, 74 Ohio St. 65, 77 N. E. 283. a dwelling house, and a breaking and entry in his absence, with a felonious intent, is burglary.40 But if he leaves it, without intending to return, it ceases to have the character of a dwelling house, though the furniture, plate and other household goods may be left in it.41 Whether or not there is the animus revertendi is the test.42 The common-law rule has been changed by statute in some states so as to make an unoccupied or uninhabited dwelling house the subject of burglary.43 And some courts have held that such a dwelling house may be the subject of burglary even in the absence of statute.44 § 462. Ownership of the premises. The house must be the house of another; 45 but, as burglary is an offense against the security of the habitation, and not against the property, occupation, not owner Texas. Carneal v. State, 86 Tex. Cr. 274, 216 S. W. 626; Davidson v. State, 86 Tex. Cr. 243, 216 S. W. 624. 41 Henderson v. State, 80 Fla. 491, 86 So. 439; Smith v. State, 80 Fla. 315, 85 So. 911; State v. Meerchouse, 34 Mo. 344, 86 Am. Dec. 109; Rex v. Flannagan, Russ. & R. 187. 42 Smith v. State, 80 Fla. 315, 85 So. 911; Schwabacher v. People, 165 Ill. 618; State v. Meerchouse, 34 Mo. 344, 86 Am. Dec. 109; Downs v. New Jersey Fidelity & Plate Glass Ins. Co. of Newark, 91 N. J. L. 523, 103 Atl. 205, L. R. A. 1918 D 513. And see other cases cited in the preceding note. 43 Sloan v. People, 65 Colo. 456, 176 Pac. 481; State v. Groves, 80 Ohio St. 351, 88 N. E. 1096, 17 Ann. Cas. 361; State v. Mason, 74 Ohio St. 65, 77 N. E. 283. Such a house may be the subject of burglary where the statute provides that the offense may be committed in any dwelling house or other house or building whatever. State v. Dan, 18 Nev. 345, 4 Pac. 336. In State v. Williams, 40 W. Va. 268, 21 S. E. 721, a house built and used for a dwelling, and where the occupant kept his household goods and sometimes slept, was held to be a dwelling house. 44 In Kentucky it is held that a building constructed for use as a place of residence is a dwelling house and as such is the subject of burglary although it is vacant and unoccupied, or even while it is in the course of construction. Thomas v. Com., 150 Ky. 374, 150 S. W. 376; Com. v. Woolfolk, 121 Ky. 164, 89 S. W. 110. 45 Clarke v. Com., 25, Gratt. (Va.) 908. ship, is the test, and ownership may therefore be laid in an occupant whose possession is rightful as against the burglar 46 as a tenant.47 46 Alabama. White v. State, 49 Ala. 344. Colorado. Sloan v. People, 65 Colo. 456, 176 Pac. 481; Howard v. People, 62 Colo. 131, 160 Pac. 1060. Illinois. Smith v. People, 115 Ill. 17, 3 N. E. 733. Iowa. State v. Teeter, 69 Iowa 717, 27 N. W. 485. Kentucky. Young v. Com., 126 Ky. 474, 104 S. W. 266, 128 Am. St. Rep. 326, 15 Ann. Cas. 1022. Missouri. State v. McGuire, 193 Mo. 215, 91 S. W. 939. Texas. Cummings v. State, 87 Tex. Cr. 154, 219 S. W. 1104; Carneal v. State, 86 Tex. Cr. 274, 216 S. W. 626; Davidson v. State, 86 Tex. Cr. 243, 216 S. W. 624; Moore v. State, 48 Tex. Cr. 400, 88 S. W. 230; Tidwell v. State (Tex. Cr.), 45 S. W. 1015. England. Rex v. Jarvis, 1 Moody C. C. 7; Rex v. Jobling, Russ. & R. 525. Ownership may be laid in a person having charge of a building in behalf of a nonresident owner, Hahn V. State, 60 Neb. 487, 83 N. W. 674; or in a person whom the owner has asked to care for his house and personal property therein while he is away, Davidson v. State, 86 Tex. Cr. 243, 216 S. W. 624; or in a real estate agent in whose hands a nonresident has placed the house to rent. Alvia v. State, 42 Tex. Cr. 424, 60 S. W. 551. Ownership of a railroad car may be laid in a railroad company having temporary possession and custody of it, though it belongs to another company. State v. Dolson, 188 Iowa 629, 176 N. W. 678; State v. Jones, 84 W. Va. 85, 99 S. E. 271. Though it is impossible for persons to occupy a house as a dwelling as partners, it is held that a building occupied by a firm in their business, and also by one of the partners as his dwelling, may be described in an indictment for burglary as the "dwelling house" of the firm. Quinn v. People, 71 N. Y. 561; Rex v. Athea, Moody C. C. 329; Rex v. Stock, Russ. & R. 185, 2 Leach C. C. 1015, 2 Taunt. 339. And a building owned by a corporation, and lived in by its servant, may be described as the house of the corporation, "for, though an aggregate corporate body cannot be said to inhabit anywhere, yet they may have a mansion house for the habitation of their servants."' Hawkins' Case, 2 East P. C. 501; Picket's Case, 2 East P. C. 501. Where the building is a warehouse, it is only necessary to allege ownership for the purpose of identification. It is sufficient to allege ownership in a named company without alleging whether it is a corporation or a copartnership. State v. Golden, 86 Minn. 206, 90 N. W. 398. Where a warehouse was divided by a partition which did not reach to the ceiling, so that it was possible to climb over it, and the two parts were occupied by different persons, it was held that breaking into it at any place was burglary as to the entire building, and hence that breaking into it on one side of the partition with intent to steal on the other side would be burglary of the latter, and may be so charged. State v. Peebles, 178 Mo. 475, 77 S. W. 518. 47 Flanagan v. People, 214 Ill. 170, 73 N. E. 347; Smith v. People, 115 Ill. 17, 3 N. E. 733; State v. McCray, Iowa 179 N. W. 627; State v. McGuire, 193 Mo. 215, 91 S. W. 939; State v. Burton, 27 Wash. 528, 67 If a guest in a hotel or lodging house is merely a transient, an indictment for breaking and entering his room must describe the premises as the dwelling house of the landlord.48 It is otherwise, however, if the guest or lodger has permanent apartments.40 It has been held that where several tenants occupy different rooms in the same building, each having different keys, but all using the same main entrance, ownership should be alleged to be in the lessor.50 But there is also authority to the effect that it is proper to charge ownership in the person whose apartment or room is entered.51 § 463. The breaking-Necessity for breaking. Except where the rule has been changed by statute, burglary cannot be committed without a breaking, actual or constructive.52 It is not burglary, therefore, in the absence of fraud, intimidation, or conspiracy with a person in the house,53 to enter, without breaking, through an aperture left in the walls or roof of a house,54 or through an open door or window.55 Pac. 1097; State v. Johnson, 4 Wash. 593, 30 Pac. 672. 481 Hale P. C. 557; 1 Hawk. P. C. c. 38, § 13; Prosser's Case, 2 East P. C. 502. 491 Hale P. C. 556; 1 Hawk. P. C. c. 38, § 13; People v. St. Clair, 38 Cal. 137. And see Rex v. Carrell, 1 Leach C. C. 237, 2 East P. C. 506. 50 Com. v. Ballard, 18 Ky. L. Rep. 782, 38 S. W. 678. 51 People V. Bush, 3 Park Cr. (N. Y.) 552. 521 Hale P. C. 551, 552; 1 Hawk. P. C. c. 38, §§ 3, 4; Brown v. State, 55 Ala. 123; Coplon v. State, 15 Ala. App. 331, 73 So. 225; White v. State, 51 Ga. 285; Wallace v. Com., 162 Ky. 85, 172 S. W. 118; Little v. Com., 151 Ky. 520, 152 S. W. 569; Clarke v. Com., 25 Gratt. (Va.) 908; and other cases cited in the notes following. 58 See § 468, infra. 54 Thus, it has been held not to be burglary to enter, without any breaking, through an aperture left in a cellar window to admit light, Rex v. Lewis, 2 Car. & P. 628; or through a hole in the roof left for the purpose of light. Rex v. Spriggs, 1 Moody & R. 357. 55 Com. v. Steward, 7 Dane's Abr. 136; 1 Hawk. P. C. c. 38, § 4. See also the following decisions: 281. Delaware. State v. Davenport, 2 Boyce (25 Del.) 12, 77 Atl. 967. Georgia. White v. State, 51 Ga. 285; Tremble v. State, 24 Ga. App. 26, 99 S. E. 544. Kentucky. Com. v. Mackey, 171 Ky. 473, 188 S. W. 676; Smith v. Com. (Ky.), 128 S. W. 68. Massachusetts. Com. v. Strupney, 105 Mass. 588, 7 Am. Rep. 556. Nebraska. McGrath v. State, 25 New Jersey. State v. Wilson, 1 Texas. Cox v. State, 81 Tex. Cr. 90, 194 S. W. 138; Hamilton v. State, Tex. App. 116. 11 |