85 Pa. 66 | Pa. | 1877
delivered the opinion of the court, October 1st 1877.
This record presents hut a single question. Was there such a breaking as constitutes felonious burglary ? That the opening of an inner door may bo such breaking is too well settled to need discussion. If a person leaves bis doors or windows open, it is his own folly and negligence, and if a man enters therein it is no burglary ; yet if lie afterwards unlocks an inner or chamber door it is so : Sharswood’s Blackstone, vol. 2, p. 226. The same rule is asserted in Wharton’s Criminal Law, vol. 2, § 1536 ; 1 Bishop’s Or. Law 308; Roscoe, p. 302, and numerous authorities cited in which the point has been decided. It was conceded at bar that the law is so, but it was contended that in tlie case of the opening of an inner door, it must be accompanied with an intent to commit a felony in the very room so entered. We do not assent to this qualification of the common-law rule. If a burglar, entering by an outer door or window, incautiously left open, with the intent to commit a felony in a particular room in the house, as if lie intends to rob a safe with the location of which ho is familiar, and in furtherance of his design, and to enable him to accomplish it successfully, opens the door of the adjoining room in the same house to gag and bind the owner sleeping therein, it is a breaking within tlie meaning of the law defining the offence of burglary. Yet in such case there would be an entire absence of an intent to commit a felony in the bed-room. The binding of the owner, standing alone, would be a mere assault and battery, punishable as a misdemeanor. Taken in connection with tlie main-object it assumes a different character, and becomes a necessary incident of the felony, as much so as the lifting of a latch or the breaking of the door of the safe. The true test, as applied to an inner door of a house, is whether it was opened in the perpetration of or attempt to perpetrate the felony. If it was a necessary act in the perpetration of the felonious design, it can make no difference that the felony was to bo committed in an adjoining room.
Our attention was called to the Act of 22d of April 1863, Pamph. L. 531, and it was urged that the second section of said act was' intended to meet such cases as this: that is, where there is an entering without the breaking of an outer door, but the opening of an inner door with intent to commit a felony. In Rolland v. The Commonwealth, 1 Norris 806, we endeavored to make the meaning of this act plain and to reconcile it with the 135th section of the Act of 31st of March 1860, Pamph. L. 415. I will repeat now what was said at greater length in that case: that we do not think the Act of 1863 was intended to apply to or affect the offence of burglary at common law, but to define and punish a new offence, unknown to the common law, yet partaking of the nature of burglary, viz.: breaking and entering by day and entering by day or by night without breaking; and also to apply to a class of buildings which are not the subject of common-law burglary, and that it was to such buildings only that the words “ with or” in the Act of 1863 have reference. We cannot make this subject any clearer. There is an admitted obscurity in the sections referred to, and a necessity for such a construction as would reconcile their seeming repugnancy. We could not assume it to have been the legislative intent to abolish the offence of burglary. In the case before us, the offence of common-law burglary was complete, and the provisions of the Act of 22d April 1863 have no application.
The judgment is affirmed.
