12 N.C. 253 | N.C. | 1827
Lead Opinion
Burglary is a breaking and entering the mansion house of another in the night time, with an intent to commit some felony within the same, whether such intent be executed or not. It is almost the only cáse where crime in the highest degree is not dependent on the consummation of the intent, in almost all other offences there is a locus p cénit entice. But the law throws her mantle around the dwelling of man, because it is the place of his repose, and protects not only the house in which he sleeps, hut also all others appurtenant thereto, as parcel or parts thereof, from meditated harm; thus the kitchen, the landry, the meat or smoke-house,
Dissenting Opinion
disseniiente_The definition of Burglary, as furnished by the best Writers on criminal law, and explained by adjudged cases, does, in my opinion, include the case under consideration. The mansion, according to Male, not only includes the dwelling-house, hut also all the outhouses — such as barns, stables, cow-houses, dairy-houses, and the like, if they be part of the messuage, though they be not under the same roof, or joining contiguous to it. An outhouse upon a lot in a town, cannot be more completely placed within the protection affor ded by law to the mansion-house, than this store was. It was three or four feet only from the dwelling-house, and conm eted with it by a gate, and it was under the same fence on all sides, where a fence could he made, so as to be within the curtilage, or piece of ground lying near, and belonging to the dwelling-house. In these circumstances, it is stronger than Castle’s case (l Hale 558) where two men were’eondomned for breaking open a back-house of Castle’s, eight or nine yards distant from the dwelling-house, only a paie reaching between them. It is as strong ^as the case of Gibson and
These cases seem to me to show the. conviction here to have been proper j and I ihink their aullmrity is strengthened by the cases relied upon in behalf of the prisoner, which being founded, in my view of them, on exceptions to the rule, prove the existence of the rule itself.
The first is Garland’s case fLeach 130) where the breaking was of an outhouse, and occupied by the owner witlqhis dwelling-house, and separated therefrom by an open passage of eight feet wide, but the outhouse was not connected with the dwelling-house by any fence inclosing both. The prisoner was acquitted, because the outhouse was so separated from the dwelling-house, and not within the same common fence. But in the case before us both circumstances exist, from the absence of one of which, the prisoner was acquitted in Garland’s case. For here the store was connected with the dwelling-house, and both were inclosed within the same fence j for I consider a fence on three sides, where the front is
Parker’s case, cited from 4 John. 433, is the same as Garland’s case, save only in the distance of the store from the dwelling-house. It was not connected with tiie house, nor was there any inclosure.
Egginton’s case (2 Bos. & Pul. 508) was decided on grounds which have no application to the circumstances of this case. From the facts stated in that case,— from the points relied upon by the prisoner’s Counsel in arguing it, and from, the manner in which it is constantly quoted by writers, I infer that the judgment proceeded on the ground that the centre building was severed from the mansion-house by lease or otherwise, and adapted to the use of several manufactories, the partners of which had it on their joint occupation ; consequently, it could not be considered as the mansion-house of M. E. Boulton. So if a man let a shop only, and sever it from his house for years, and the party who hath the shop does not lodge in it, and this be broke open in the night-time, it is no burglary. Kelyng 84. If Boidton had used the centre building in a manufactory of his own exclusively, it must have been considered as part of his dwelling-house, although there was no internal communication between them.
The books may, be searched in vain for any rule or case, referring to the use made of an outhouse as tiie criterion whether burglary can be committed by breaking it open. A shop or manufactory may, in judgment of law, be part of the mansion-house, as much as a dairy or stable, or any other house subsidiary to the comfort and
This is my view of the case maturely considered, though expressed with all possible brevity j but as it may be erroneous, I am highly gratified that the opinion of my brothers renders it harmless to the prisoner.
Ter Curiam. — Judgment reversed, and rule for a new trial made absolute.
Lead Opinion
A verdict being rendered for the State, and judgment of death awarded, the defendant appealed. Burglary is a breaking and entering the mansion house of another in the night-time, with an intent to commit some felony within the same, whether such intent be executed or not. It is almost the only case where crime in the highest degree is not dependent on the consummation of the intent. In almost all other offenses there is a locus paenitentiae. But the law throws her mantle around the dwelling of man, because it is the place of his repose, and protects not only the house in which he sleeps, but also all others appurtenant thereto, as parcel or parts thereof, from meditated harm; thus the kitchen, the laundry, the meat or smoke house, and the dairy are (254) within its protection; for they are all used as parts of one whole, each contributing in its way to the comfort and convenience of the place as a mansion or dwelling. They are used with that view, and that alone; and it may be admitted that all houses contiguous to the dwelling are primafacie of that description. But when it is proved that they are used for other purposes — for labor, as a workshop; for vending goods, as a storehouse — this destroys the presumption. It then appears that they are there for purposes unconnected with the actual dwelling-house, and do not render it more comfortable or convenient as a dwelling; in short, that they are not a parcel or part thereof, but are used for other and distinct purposes. *151 The house, as a dwelling, is equally comfortable and convenient without them as with them. Their contiguity to the dwelling may afford convenience or comfort to the occupants as a mechanic, a laborer, or a shopkeeper, but none to him as an housekeeper. These principles, I think, are fully recognized inKing v. Egginton, 2 Bos. and Pul., 508, and spoken of in East, Starkie, and Russell with approbation. In fact, without some such rule, we should be at sea without a rudder; for shall we take distance as our guide? Must the off-house be within one foot, ten, or a hundred feet? Or, as some say, a bow's shot? Those who speak of distance ascertain it only by its being reasonable, and what may be reasonable to the mind of one man may not be to that of another. Shall we take the curtilage as a guide? It may be asked to what extent. A small yard or a large one, inclosed or uninclosed? for writers do not precisely agree as to what constitutes the curtilage. I think, therefore, that it is unsafe to extend the signification of the word dwellinghouse farther than to embrace the dwelling itself, and such houses as are used as part or parcel thereof, such as are used with the dwelling, considered as a dwelling-house, and tending to render it convenient and comfortable to the dweller as an housekeeper. If it be asked, on the other side, what is to be (255) done where the kitchen or pantry is placed at a great distance from the dwelling, whether it is to be protected as part thereof, it is answered that it must then lose its protection, not because it is no longer part of the dwelling, but on the score of carelessness or indifference; as the dwelling-house of a man is not protected who leaves his doors and windows open, or who places his property in a situation where he knows it will be stolen. For the criminal law protects men against those acts only from which they cannot protect themselves, and leaves the careless and negligent to their civil remedy.
