B. take his goods of A. again to the intent to favour him or maintain him, this is unlawful and punishable by fine and imprisonment,(/) but if he take them again without any such intent, it is no offense. Mich. 16 Jac. B. R. Higgins and Andrews,(m) but justifiable. But after the felon is convicted, it can be no colour of crime to take his goods again, where he finds them, because he hath pursued the law upon him, and may have his writ of restitution, if he please. 2. By course of common law: A. steals the goods of B. viz. fifty pounds in money, A. is convicted, and hath his clergy upon the prosecution of B. B. brings a trover and conversion for this fifty pounds, and upon not guilty pleaded this special matter is found, and adjudged for the plaintiff, because now the party hath prosecuted the law against him, and no mischief to the commonwealth; but it was held, that if a man feloniously steal goods, and before prosecution by indictment the party robbed brings trover, it lies not, for so felonies should be healed. M. 1652. B. R. Dawkes and Coveneigh;(n) vide accordant Noyes reports,(0) Markham and Cob; but if the [547] plaintiff had not given evidence upon the conviction, it was held, that the action lay not, but the goods were confiscate to the king, and for want of that averment in the case of Markham, judgment was given for the defendant in trespass. CHAPTER XLVIII. OF BURGLARY, THE KINDS, AND PUNISHMENT. I COME to those crimes that specially concern the habitation of a man, to which the laws of this kingdom have a special respect, because every man by the law hath a special protection in reference to his house and dwelling.(a) And that is the reason, that a man may assemble people together for the safeguard of his house, which he could not do in relation to travel, or a journey. 21 H. 7. 39. a. And upon the same reason it is, that not only by the statute of 24 H. 8. cap. 5. but even by the common law, if any come to commit a felony upon me in my house, and I kill him, it is no felony, nor induceth any forfeiture; quod vide supra, p. 487. vide Sir Henry (2) And so seems the practice of advertising a reward for bringing goods stolen, and no questions asked, which I have heard lord chancellor Macclesfield declare to be highly criminal, as being a sort of compounding of felony, for the goods by that means returning to the right owner, a stop is put to the inquiry and prosecution of the felon, and thereby great encouragement is given to the commission of such offences. See postea, cap. 56. (m) 2 Rol. Rep. 55. (a) That this was the notion among the Romans also appears from Cicero in oratione pro domo, cap. 41. Quid enim sanctius, quid omni religione munitius, quam domus unius. cujusque civium? hic aræ sunt, hic soci,-hoc perfugium est ita sanctum omnibus, ut inde abripi neminem fas sit. (n) Style 346. (0) Noy 82. Spelman Gloss. tit. Hamsecken, & ibidem tit. Burglaria, whereby it appears, that by the antient laws of Canutus,(5) and of H. 1.(c) it was punished with death. The common genus of offenses that comes under the name of Hamsecken, is that which is usually called house-breaking, which sometimes comes under the common appellation of burglary, whether committed in the day or night to the intent to com- [548] mit felony, so that house-breaking of this kind is of two natures. 1. That which in a vulgar and improper acceptation is sometimes called burglary. And, 2. That which in a strict and legal acceptation is so called. I. As to the former of these, hamsacken, house-breaking, or burglary in a vulgar acceptation is of several kinds. 1. Robbing any person by day or night in his dwelling-house, the dweller, his wife, children, or servants being in the house, and put in fear; this requires that there be something taken, but it requires not an actual breach of the house; but it is all one, whether he actually breaks the house, or enters per ostia aperta, for it is in truth robbery either way, and from this offense clergy is taken away by the statute of 23 H. 8. cap. 1. and 25 H. 8. cap. 3. from the principal, and by the statute of 4 & 5 P. & M. cap. 4. from the accessary. 2. Robbing a person by day or night in his dwelling-house, the dweller, his wife or children being in the house, and not put in fear; this requires, 1. An actual breaking of the house. 2. An actual taking of something, but the persons need not be put in fear; and by the statute of 5 & 6 E. 6. cap. 9. clergy is in this case taken from the principal, that enters the house; and by the statute of 4 & 5 P. & M. cap. 4. from the accessary before. 3. Robbing a dwelling-house by day or night, and taking away goods, none being in the house; this requires an actual breaking, and an actual taking of something, and without the latter it is not felony, but if accompanied with both, and the taking of goods be of the value of five shillings, it is excluded from clergy by 39 Eliz. cap. 15. 4. A breaking of the house in the day or night to the intent to steal or commit a felony,[1] any person being in the house, and put (b) l. 61. reckons irruptio in domum among the scelera inexpiabilia. [1] Whoever in the night time breaks and enters the dwelling-house of another, with intent to commit murder, rape, arson, robbery, or larceny, within the same; or by day or night enters the same with such intent, and in the night, breaks with such intent any apartment thereof; or in the night enters the same with such intent, and in the night breaks out of such dwelling-house, or being an inmate therein, in the night breaks and enters, with such intent, any apartment thereof, without any right or authority to enter the same, at the time, is guilty of burglary. Mass. Penal Code. Tit. Burglary. According to the law of England, there are six ways of committing Burglary: 1. By breaking and entry from without, with intent, &c. 2. By entry from without, &c. and breaking some apartment within, with intent, &c. 3. By breaking and entry of an inner apartment, by an inmate, with intent, &c. in fear, tho nothing be actually taken, this is burglary by the common law, if it is in the night, and felony by the statute of 1 E. 6 cap. 12. tho in the day, and is excluded from clergy by the statute of 1 E. 6. whether by day or by night, but then it requires, 1. An actual break ing of the house, and not an entry per ostia aperta. 2. An [549] entry with intent to commit a felony, and so laid in the indictment. Pouller's case, 11 Co. Rep. 31. b.[2] 3. A putting in fear, but accessaries have clergy.[3] II. Legal or proper burglary is of two kinds, viz. 1. Complicated and mixed with another felony, as breaking the house, and stealing goods, either with putting in fear or without putting in fear, somebody in the house, or nobody in the house, which requires, 1. That it be done in the night. 2. That there be an actual breaking. 2. Simple burglary, and that either, 1. With putting in fear, and then the principal is excluded of clergy by the statute of 1 E. 6. and also by the statute of 18 Eliz. or, 2. Without putting in fear, and then he is excluded of clergy by the statute of 18 Eliz. And this chapter speaks only of proper or legal burglaries, of those improper burglaries I have spoken before. Burglary is described by Sir Henry Spelman(e) to be nocturna diruptio alicujus habitaculi vel ecclesiæ, etiam murorum portarumve civitatis aut burgi ad feloniam perpetrandam. My lord Coke P. C. cap. 14. p. 63. more fully describes it. "A burglar is he, that in the night-time breaketh and entreth into a mansion-house of another of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not. And accordingly the indictment runs, quod J. S. 1 die Julii anno &c. in nocte ejusdem diei vi & armis domum mansionalem A. B. (e) In verbo burglaria. 4. By entry, with intent, &c., and breaking out. 5. By entry and actual commission of felony within, and breaking out. 6. By breaking and entry, and actual commission of felony within. The first three and the sixth offences (12 East, 519.) are burglary at common law. It is uncertain whether the fourth is burglary at common law or not. Hule denies it to be burglary, (page 554.) where the breaking out was with intent to escape only. The general doctrine is, that both the breaking and entry must be with felonious intent. If this case is not an exception, (and we are by no means ready to conclude that it is,) breaking out, if a breaking at all, at common law, can be so only when the offender pursues his felonious intent; as when he carries away something stolen, or pursues some one with intent to murder, &c. But both the fourth and fifth are burglary, by statute 17 Anne, c. 7. re-enacted in words a little varied in 7 & 8 Geo. IV. c. 29. s. 11. "If any person shall enter the dwelling-house of another with intent to commit felony, or being in such dwelling-house, shall commit any felony, and shall, in either case, break out of the said dwelling-house in the night time, such person shall be deemed guilty of burglary." Such is generally the state of the law of burglary in England. Mass, Čom. Rep. See Rex v. Hanson, 1 Root's Rep. 59. The State v. Wilson, Coxe's N. J. Rep. 441. Com. v. Newell, 7 Mass. R. 247. Com. v. Brown, 3 Rawle Rep. 207. [2] State v. Wilson Coxe's, N. J. Rep. 441. Com. v. Newell, 7 Mass. R. 247. Rez v. Hanson, 1 Root's R. 59. [3] As to clergy, sec ante ch. 44. felonicé & burglariter fregit & intravit, ac ad tunc & ibidem unum scyphum argenteum &c. de bonis & catallis ejusdem A. B. in eadem domo invent' felonicè & burglariter furatus fuit, cepit & asportavit; or if no theft were actually committed, then ex intentione ad bona & catalla ejusdem A. B. in eadem domo existent' felonicè & burglariter furandum, capiendum & asportandum, or eâ intentione ad ipsum A. B. ibidem felonicè interficiendum contra pacem &c. And note, that these several clauses in the indictment are essential to the constitution of burglary, 1. That it be said noctanter, or in nocte ejusdem diei(f) for if it be in the day-time, it is not burglary. 2. That it be said in the indictment burglariter, [ 550] for it is a legal word of art, without which burglary cannot be expressed with any kind of other word or other circumlocution, and therefore, where the indictment is burgaliter instead of burglariter, it makes no indictment of burglary, so if it be burgenter. 4 Co. Rep. 39. b.(g) 3. It must be fregit & intravit, for it is held, that breaking without entring, or entring without breaking makes not burglary, sed de hoc infra; yet Trin. 5 Jac. B. R. an indictment, quod felonicè & burglariter fregit domum mansionalem, &c. was a good indictment of burglary, and that the entry is sufficiently implied, even in an indictment, by the words burglariter fregit, but the safest and common way is to say fregit & intravit. 4. It must be said domum mansionalem, where burglary is committed in a house, and not generally domum, for that is too uncertain, and at large. 5. It must be alleged, that he committed a felony in the same house, or that he brake and entred the house to the intent to commit a felony, but these things will be fuller examined, when we come to particulars. 1. Therefore the time, wherein it must be committed to make it burglary, must be in the night.[4] (f) See 9 Co. 66. b. (g) See also 5 Co. 121. b. [4] See 4 Bl. Com. 224. But now in England, as to what shall be held day and what night, see 7 Will. IV. & 1 Vict. c. 86, s. 4, which enacts, that 9 o'clock in the evening of one day until 6 o'clock in the morning of the succeeding day, shall be considered night. Anciently, the day was accounted to begin only at sun-rising, and to end immediately at sun-set, as stated by Lord Hale, infra; but the opinion usually held was, that if there be daylight, or crepusculum, twilight, enough to descern a man's face, it was no bur. glary. 3 Inst. 63; 2 East's, P. C. 509. But this did not extend to moonlight, for then many midnight burglaries would go unpunished. 4 Blac. sup. The breaking and entering must both be committed in the night time. But the breaking may be committed in one night, and the entering in another. Rex v. Jordan, 7 Car. & P. 432. The breaking, however, must be with intent to enter, and the entry with intent to commit a felony. Rex v. Smith, R. & R. 417. If there be daylight or twilight enough begun or left, whereby the countenance of a person may be reasonably discerned, a breaking and entry is not burglary by the common law. 7 Dane's Abr. 134. Hence an indictment, which alleged the crime to have been committed between the hours of 12 at night and 9 of the succeeding evening, will It hath been antiently held, that after sun-set, tho day-light be not quite gone, or before sun-rising is noctanter to make a burglary, Dalt. cap. 99. p. 352,(h) and accordingly cited by Crompt. fol. 32. b. to have been judged by Portman, 3 E. 6.,(i) and the felons executed, and 21 H. 7. Kelw. 75. a. But the latter opinion hath been and still obtaineth, that if the sun be set, yet if the countenance of a party can be reasonably discerned by the light of the sun or crepusculum, it is not night, nor noctanter to make a burglary; and with this agrees Co. P. C. p. 63. and hence it is, that altho a town unwalled shall not be amerced for the escape of a murderer, if the murder were committed in the night, yet if it were done only in vespere diei, the township shall be amerced. 3 E. 3. Coron. 293. And if a [551] a robbery be committed before sun-rising, or after sun-set, and whilst it is so far day-light, that the countenance of a man can be reasonably discerned by the light of the day, yet the hundred shall be charged, otherwise where it is done in the night, 7 Co. Rep. 34 Milburn's case: but this is not intended of moonlight, for then midnight house-breaking should be no burglary; and the word noctanter is to be applied to all that follows, viz. fregit & intravit, if the breaking of the house were in the daytime, and the entring in the night, or the breaking in the night, and entring in the day, this will not be burglary, for both make the offense, and both must be noctanter: vide Crompt. 33. a. ex 8 E. 4.(k) But if they break a hole in the house one night, to the intent to enter another night and commit felony, and accordingly they come at another night, and commit a felony through the hole they so made the night before, this seems to be burglary, for the breaking and entring were both noctanter, tho not the same night; and it shall be supposed, that they brake and entred the night when they entred, for the breaking makes not the burglary till the entry. 2. There must be a breaking and an entry to make the burglary, and therefore I shall speak of them both together.[5] (h) New Edit. cap. 151. p. 486. (i) See the like judgment per Fineux, Crompt. 33. a. (k) This case does not fully prove the point it is brought for, for the resolution there was only, that if thieves enter in by night at an hole in the wall, which was there before, it is not burglary, but it does not appear who made the hole. be quashed for want of a noctanter. The State v. Mather, N. Chipm. R. 32; The State v. Bancroft, 10 Mass. R. 105; The State v. G. S. 1 Tyler, Vermt. R. 295; Com. v. Chevalier, 7 Dane's Abr. 134; sed vide Thomas v. The State, 5 How. (Miss.) Rep. 20. [5] It is deemed an entry, when the thief breaketh the house, and his body, or any part thereof, as his foot or his arm, is within any part of the house, or when he putteth a gun into a window which he hath broken, (though the hand be not in,) or into a hole of the house, which he hath made with intent to murder or kill, this is an entry and breaking of the house; but, if he doth barely break the house, without any such entry at all, this is no burglary. 3 Inst. 64. 2 East's P. C. 490. Thieves came by night to rob a house. The owner went out and struck one of them; another made a pass with a sword at persons he saw in the entry, and in so doing, his |