Robinson v. State

53 Md. 151 | Md. | 1880

Alvey, J.,

delivered the opinion of the Court.

The indictment in this case charges the prisoner with feloniously and burglariously breaking and entering, in the night time, the dwelling house of one Morgan, with intent the goods and chattels of the said Morgan, then and there being, feloniously to steal, take and carry away.

According to the common law definition of a burglar, as given us by Lord Coke (3rd Inst., 63), it is “he that 'in the night-time breaketh and entereth 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 he executed or not.” .This definition has been adopted by Hale, Hawkins, and Blackstone. 1 Hale P. C., 549; Hawk. P. C., b. 1, c. 38, sec. 1; 4 Black. Com., 224.

One of the elements essential to constitute the crime, according to this definition, is the felonious intent with which the breaking and entry of the house may have been effected. If not with such intent, then the breaking and entry would he, at the common law, nothing more than a trespass. 4 Black. Com., 227. Therefore, the breaking and entry of a dwelling house at night, with intent to commit a battery, or with an intent to commit adultery, is not a felony. Comm. vs. Newell, 7 Mass., 247 ; State vs. Cooper, 16 Vt., 551.

It was therefore very material, on the question of intent, to show for what object the prisoner broke and entered the house. If he really entered the house solely for the purpose of having illicit connection with the prosecuting witness, he could not he found guilty of burglary. Proof of the fact of such being his object would be difficult to furnish otherwise than as it might be inferred from the previous relations of the parties, and such circumstances as would he calculated to induce a belief in the mind of the prisoner that he would be readily and willingly received by the witness. We gather from the testimony that the witness, Mrs. Morgan, was a licentious, dissolute woman, and she herself proves that the prisoner had, upon two former occasions at least, been to see her, and had visited other women in the same house. The entry into the house was in the absence of the husband of the witness, and when the prisoner was first discovered he was in her bed-room. Upon being accosted by the witness, instead of trying to conceal his identity, he gave his name and sought recognition. With these facts. in proof, we think the evidence offered by the prisoner, as set out in the hills of excejition, when coupled as it was with the proffers to follow it up in the manner stated in the exceptions, should have been. admitted. If it be true as offered to be shown, that the prisoner had knowledge, at' the time of his entry into the house, of the lewd and lascivious habits and character of the witness, or that he had had improper intimacy or intercourse with her, these were circumstances proper to be left to the jury for. their consideration in jiassing upon the question of intent with which the act was done.

(Decided 10th March, 1880.)

We must therefore reverse the rulings contained in the exceptions, and award a new trial.

Rulings reversed, and new trial awarded.