§ 466. Breaking inner doors. The breaking need not be of an outer door or window. If a man enters a house without breaking, and when in the house unlocks or opens a closed inner door with felonious intent, and enters, he is just as guilty as if he had broken an outer door.88 A servant, though lawfully in a house, is guilty of burglary if, with intent to commit a felony, he breaks and enters the chamber of his master or mistress, or any other room into which he has no right to enter,89 and a guest or lodger in a hotel or lodging App. Div. 795, 151 N. Y. Supp. 482. Pushing open a sliding door which is so nearly closed that the accused cannot enter without pushing it further open. State v. Sorenson, 157 Iowa 534, 138 N. W. 411. Opening a partly open freight car door. State v. Lapoint, 87 Vt. 115, 88 Atl. 523, 47 L. R. A. (N. S.) 717, Ann. Cas. 1916 C 318. To open the lower half of a barn door is a breaking, though the upper half stood open. Webb v. Com., 18 Ky. L. Rep. 220, 35 S. W. 1038; Ferguson v. State, 52 Neb. 432, 72 N. W. 590, 66 Am. St. Rep. 512. 88 1 Hale P. C. 553; 1 Hawk. P. C. c. 38, § 4. See also the following decisions: California. People v. Young, 65 Cal. 225, 3 Pac. 813. New Hampshire. State v. Scripture, 42 N. H. 485. New Jersey. State v. Wilson, 1 N. J. L. 439, 1 Am. Dec. 216. Pennsylvania. Rolland v. Com., 85 Pa. St. 66, 27 Am. Rep. 626. Texas. Carneal v. State, 86 Tex. Cr. 274, 216 S. W. 626; Martin v. State, 1 Tex. App. 525. England. Rex v. Johnson, 2 East P. C. 488. Entering a closed inner room. Davidson v. State, 86 Tex. Cr. 243, 216 S. W. 624. Breaking and entering an inner door or window. State v. Ferguson, 149 Iowa 476, 128 N. W. 840. Unlatching an inner door. State v. Manluff, Houst. Cr. Cas. (Del.) 208. Pushing open an inner door. State v. Perry, 165 Iowa 215, 145 N. W. 56. Breaking open the doors of apartments in a depot, the outer door of which was open. Daniels v. State, 78 Ga. 98, 6 Am. St. Rep. 238. Entering a building through an open door and then removing a plank over a hole in the ceiling leading into an upstairs room. Carter v. State, 68 Ala. 96. In such a case the breaking is held to be of the house itself. People v. Young, 65 Cal. 225, 3 Pac. 813; State v. Perry, 165 Iowa 215, 145 N. W. 56; State v. Scripture, 42 N. H. 485. It matters not whether he intends to commit the felony in the particular room into which this inner door opens, or in some other part of the house. Rolland v. Com., 85 Pa. St. 66, 27 Am. Rep. 626. As both a breaking and entry are necessary, an entry without a breaking of an outer door, and a breaking without an entry of an inner door, has been held insufficient. Reg. v. Davis, 6 Cox C. C. 369. 891 Hale P. C. 553, 554; Hild v. State, 67 Ala. 39; Colbert v. State, 91 Ga. 705, 17 S. E. 840; Edmond's Case, Hutton's Rep. 20, cited Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9; Rex v. Gray, 1 Strange 481. It is burglary for a servant, left in house, or occupant of a flat in an apartment house, may be guilty of burglary in breaking and entering the room or flat of another guest, lodger or tenant.90 § 467. Constructive breaking-In general. There need not necessarily be an actual breaking in all cases to constitute larceny. There are circumstances under which the law regards an entry as a constructive breaking, when there is no breaking at all in the popular sense of the word.91 § 468. - Entry by artifice or fraud. If a person gets into a house by some trick or fraud, with intent to commit a felony therein, there is a constructive breaking, and he is guilty of burglary.92 Thus, there is a constructive breaking if a person effects an entrance by concealing himself in a box; 93 or by pretended hue and cry, or abuse of legal process, for the purpose of gaining admission.94 And the same is true where a person, by some artifice or fraud, as upon a false pretense of business or social intercourse, procures the door of a house to be opened by the occupant or a member of the family, for the purpose of entering and committing a felony,95 provided the entry 911 Hawk. P. C. c. 38, § 5; 2 Russ. Crimes (9th Ed.) 1 et seq.; State v. Fisher, 1 Pennew. (17 Del.) 303, 41 Atl. 208; State v. Henry, 9 Ired. (N. C.) 463; Clarke v. Com., 25 Gratt. (Va.) 908; and see the other cases cited in §§ 461-474, infra. 92 Summers v. State, 9 Tex. App. 396; Le Mott's Case, J. Kelyng, 42. And see other cases cited in the following notes. 93 Nicholls v. State, 68 Wis. 416, 32 N. W. 543; Le Mott's Case, J. Kelyng, 42. 941 Hale, P. C. 552, 553; 1 Hawk. P. C. c. 38, § 5; Farr's Case, 2 Leach C. C. 1064, note. 95 State v. Carter, Houst. Cr. Cas. (Del.) 402; State v. Mordecai, 68 N. C. 207; State v. Johnson, Phil. (N. C.) 186, 93 Am. Dec. 587; Johnson v. Com., 85 Pa. St. 54, 27 Am. Rep. 622; Clarke v. Com., 25 Gratt. (Va.) 908. And see Ducher v. State, 18 Ohio 308. Where a laborer, who had lived in a house with the owner's family, while on leave of absence obtained a key from the owner, ostensibly for the purpose of taking away some of his clothing, but really for the purpose and with the intent of stealing articles in the house, and did so enter and steal, it was held that he was guilty of housebreaking. Young v. Cơm., 126 Ky. 474, 104 S. W. 266, 128 Am. St. Rep. 326, 15 Ann. Cas. 1022. And the same was held to be true of a person having a right to enter one room in a warehouse who obtained a key.to another room by arti is made immediately after the door is opened, or before a reasonable time for shutting it has elapsed.96 But there is not an entry by fraud merely because the defendant removed his shoes before entering through an open door.97 § 469. Entry by intimidation. There is also a constructive breaking where an entry is effected by intimidation, as where, in consequence of violence commenced or threatened by a man in order to obtain entrance to a house, the owner, either from apprehension of the violence, or in order to repel it, opens the door, and the man then enters with felonious intent.98 § 470. Opening of door by inmate. Another case of constructive breaking is where a servant in a house, or other inmate, opens a door and lets in a confederate for the purpose of committing a felony. In such a case both are guilty of burglary.99 But if the servant has no criminal intent, but opens the door merely for the purpose of entrapping one whom he suspects of an intent to commit burglary, neither is guilty.1 § 471. Entry through chimney. It is also a constructive breaking to enter through a chimney, the reason being that a chimney is as much shut as the nature of the thing will admit. It is burglary, therefore, where an entry is effected, with felonious intent, by coming down a chimney, and it is immaterial whether the burglar succeeds in getting into any of the rooms or not.2 fice or fraud with intent to steal. Com. v. Ballard, 18 Ky. L. Rep. 782, 38 S. W. 678. If a person gains admittance on a false pretense, with felonious intent, and then opens the door and admits an accomplice, both are guilty of burglary. Com. v. Lowrey, 158 Mass. 18, 32 N. E. 940. 96 State v. Henry, 9 Ired. (N. C.) 463. In this case the occupant of a house was decoyed to a distance therefrom, leaving the door unfastened, and his family neglected to fasten it after his departure. Fifteen minutes after his departure, the defendant entered through the open door. It was held that, because of 116. 98 1 Hale P. C. 553; State v. Foster, 129 N. C. 704, 40 S. E. 209; Summers v. State, 9 Tex. App. 396; Clarke v. Com., 25 Gratt. (Va.) 908; Rex v. Swallow, 2 Russ. Crimes 8. 99 1 Hale P. C. 553; 1 Hawk. P. C. c. 38, § 14; State v. Rowe, 98 N. C. 629, 4 S. E. 506; Clarke v. Com., 25 Gratt. (Va.) 908; Cornwall's Case, 2 Strange 881. 1 See § 187, supra. 21 Hale P. C. 552; 1 Hawk. P. C. c. 38, §4; Olds v. State, 97 Ala. 81, 3 § 472. Entry without breaking and breaking out. In England, prior to the statute of 12 Anne, c. 1, § 7, enacted in 1713, there was a difference of opinion whether it was burglary to enter a house without breaking, and then break out in order to escape. Most of the courts in this country in which the question has arisen have held that this is not burglary at common law, although there is some authority to the contrary.5 The statute of Anne, above referred to, made it burglary for a person to enter without breaking, with intent to commit a felony, or, being in the house, to commit any felony, and then in the nighttime break out of the house. According to the weight of authority this statute is not in force in this country," but in some states similar statutes have been enacted.8 Breaking out has been held not to be suffi 12 So. 409; Donohoo v. State, 36 Ala. 281; State v. Willis, 7 Jones (N. C.) 190; Rex v. Brice, Russ. & R. 450. In State v. Willis, 7 Jones (N. C.) 190, it was held, in effect, that it makes no difference how low the chimney is; and a conviction of burglary was sustained where the entry was into a log cabin through a chimney which was made of logs and sticks, and which was partly in decay, and not more than five and a half feet high. 3 See 1 Hale P. C. 553; 4 Bl. Com. 227; Lawson v. Cơm., 160 Ky. 180, 169 S. W. 587, L. R. A. 1915 D 972; People v. Toland, 217 N. Y. 187, 111 N. E. 760, rev'g 165 App. Div. 795, 151 N. Y. Supp. 482; Clarke's Case, 2 East P. C. 490. 4 Brown v. State, 55 Ala. 123; Rolland v. Com., 82 Pa. St. 306, 22 Am. Rep. 758; Adkinson v. State, 5 Baxt. (Tenn.) 569. And see White v. State, 51 Ga. 285; Tremble v. State, 24 Ga. App. 26, 99 S. E. 544; State v. Moon, 62 Kan. 801, 64 Pac. 609; State v. McPherson, 70 N. C. 239; Wine v. State, 25 Ohio St. 69. 5 State v. Ward, 43 Conn. 489; State v. Bee, 29 S. C. 81, 6 S. E. 911. And see Lawson v. Com., 160 Ky. 180, 169 S. W. 587, L. R. A. 1915 D 972. 6"This statute was substantially re-enacted in the reign of George IV, and has now been superseded in England by an act of Parliament passed in the reign of Queen Victoria." People v. Toland, 217 N. Y. 187, 111 N. E. 760. In Rex v. Wheeldon, 8 Car. & P. 747, it was held that, if a person commits a felony in a house and breaks out in the nighttime, it is burglary, within the statute, though he may have been lawfully in the house as a lodger. 7 Brown v. State, 55 Ala. 123, 28 Am. Rep. 693; White v. State, 51 Ga. 285; Rolland v. Com., 82 Pa. 306, 22 Am. Rep. 758. A contrary opinion was expressed in State v. Ward, 43 Conn. 489, 21 Am. Rep. 665. 8 See the statutes of the various states and the following cases: State v. Manluft, 1 Houst. Cr. Cas. (Del.) 208; State v. Moon, 62 Kan. 801, 64 Pac. 609; People v. Toland, 217 N. Y. 187, 111 N. E. 760, rev'g 165 App. Div. 795, 151 N. Y. Supp. 482. Entry, without breaking, with intent to commit a felony, and breaking out to escape, was held not to be within a statute providing that any person who, after having entered cient under statutes using the words "break and enter, or "breaking and entering into, "10"or breaks into and enters. 11 To be sufficient in any case the breaking out must be similar in character to that required where the burglary consists in breaking and entering, and anything that would constitute a breaking in the latter case will be sufficient in the former.12 § 473. Entry by one having a right to enter. If a person has a right to enter a house or room, his opening a door and entering cannot constitute a breaking, so as to render him guilty of a burglary, whatever may be his intent in entering. For example, a person who occupies a room jointly with another cannot commit burglary in opening the door and entering, even though he may do so with intent to steal the other's property.13 The same is true where a guest who is lawfully in an inn enters the barroom with intent to steal, for he has a right, as a guest, to enter any of the public rooms.14 But it is burglary for the occupant of a flat or apartment in an apartment or tenement house to break and enter the apartment or tenement of an premises with intent to commit a felony, "shall break such premises," shall be punished in the same way as if he had broken into the premises in the first instance, as the statute contemplates a breaking after entry, when the breaking is for the purpose of committing a felony, and not when it is for the purpose of escape only. Adkinson v. State, 5 Baxt. (Tenn.) 569. Entry without breaking and breaking out is within the Kentucky Statute making it an offense to feloniously break any dwelling house and feloniously take away anything of value, and which does not require the entry to be by breaking. Lawson v. Com., 160 Ky. 180, 169 S. W. 587, L. R. A. 1915 D 972. 9 Wine v. State, 25 Ohio St. 69. 10 White v. State, 51 Ga. 285. 11 Brown v. State, 55 Ala. 123, 28 Am. Rep. 693. 12 Lifting a latch to get out of the house with the stolen property is a sufficient breaking out. Rex V. Wheeldon, 8 Car. & P. 747. And where defendants entered through an open door, which they partly closed, and fastened with a hook or strap, so as to prevent egress unless the fastening was removed, and afterwards unfastened the door and left with their booty, it was held that there was a sufficient breaking out, it being immaterial that they had themselves closed the door. People v. Toland, 217 N. Y. 187, 111 N. E. 760, rev'g 165 App. Div. 795, 151 N. Y. Supp. 482. See also as to the sufficiency of the breaking out. Rex v. Compton, 7 Car. & P. 139; Rex v. Lawrence, 4 Car. & P. 231; Rex v. Brown, 2 Leach C. C. 1016n, 2 East P. C. 487; Rex v. Callan, Russ. & R. 157. 13 Clarke v. Com., 25 Gratt. (Va.) 908. 14 State v. Moore, 12 N. H. 42. |