State v. . Jenkins

Aug 5, 1858

Versions:50 N.C. 430

Battle, J.

The main question, in this case, is, whether burglary can be committed by breaking into a store-house, in which the owner occasionally slept, when he had a dwelling* *431 house two hundred yards distant, in which he usually slept with his family. That it may, seems to be fully sustained by the case of State v. Wilson, 1 Hay. Rep. 279, upon which his Honor relied in the Court below. In the report of that case, it is statеd that the prisoner was pardoned by the Governor ; but whether the pardon was granted ou account оf any doubt about the correctness of the decision, we are not informed. However that may be, the сounsel for the present prisoner contends that the decision is not sanctioned by principle, and is opposed by the authority of other cases.

In the case of the State v. Langford, 1 Dev. Rep. 253, referred to by the prisoner’s counsel, the subject of burglary is so clearly and forcibly еxplained by IIeNdeesoN, J-., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that we must be excused for extracting several sentences from it; “ Burglary is the breаking and entering into the mansion house of another, in the night time, with an intent to commit some felony within the same, whether such intеnt 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 loeus penitentice. But the law throws her mantle around the dwеlling of man, because it is the place of his repose, and protects, not only the house iii which he sleeps, but alsо, all the other appurtenances thereto, ■as parcel, or parts thereof, from meditated harm. Thus the kitchen — the laundry — dlie meat, or smoke-house, and the •dairy, are within its protection ; for they are аll used as parts of one whole; each contributing, in its way, to the comfort or convenience of the place, as a mansion or dwelling. They are used with that Anew, and that alone, and it may be admitted that all hоuses, contiguous to the dwelling, are, prima yfaeie, of that description. But when it is proved that they are used for оther purposes, as for labor, as a workshop, — ‘■for vending goods, as a store-house, this destroys the presumption. It then appears that, they ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are there for purposes unconnected with the actual dwеlling-house, and do not render it more comfortable, or convenient as a dwelling; in short, that they are not parcel or part thereof, but are used for other and dis *432 tinct purposes. The house, as a dwelling, is equally as comfortable and convenient without, as with, them. Their contiguity to the dwelling may afford conveniencе, or comfort, to the occupant as a mechanic, or laborer, or shop-keeper, but none to him as a house-keeper.”

The principles of the law of burglary, thus laid down, are not at all cоntroverted by Taylor, C. J., who dissented from the judgment of the Court in that case ; for he bases liis opinion entirely upon the ground, that the store-house, which was broken open, was situated so near to the dwelling-house of the рrosecutor, and was so connected with it, as to be within its protection.

The breaking into a store-house then, as such, is not burglary, and cannot become so, unless its situation makes it a part of the dwelling-house, or unless it is otherwise made to assume the character of a dwelling-house. This may be done by being used habitually, and usually, by the ownеr, or his clerk, or servant, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as a place for sleeping; but not by being used occasionally, only, for such a purpose. In the latter case it is not, and cannot, properly, be called a dwelling-house— the place of a man’s repose, which it is necessary for the law to protect from nocturnal invasion, by denouncing the penalty of death аgainst the invader. Thus we find it stated in 1 Hale’s P. C. 557, 558, that if a man hire a shop, in. which he, or his servant, usually, or often, lodge, burglary mаy be committed therein; but, says Mr. East, in his Pleas of the Crown, vol. 2, page 497, generally speaking, it seems that a mere casual use of a tenement as a lodging, or only upon some particular occasions, will not сonstitute it a dwelling-house for this purpose. In Brown's case, all the Judges agreed that the fact of a servant having slept in a barn, the night it was broken open, and for several nights before, being put there for the purpose of watching against thieves, made no sort of difference in the question, whether burglary, or not; so (it was said in Smith’s case) a рorter lying in a ware-house to watch goods, which is only for a particular purpose, does not make it a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dwelling-house, but if all communication with the dwell- *433 bouse, of which it is a part, be not excluded, it may still be a part of the housе in which burglary may be committed. See 2 East Pl. C. 497, 501; Arch. Crim. Pl. 300, and Roscoe’s Cr. Ev. 351.

Testing the present case by the principles thus established, we shall find that the store-house of the prosecutor was not, at the time when it was entered by thе prisoner, one in which burglary could be committed. The prosecutor had a dwelling-house in which he usually resided, and slept with his family. The store-house was standing two hundred yards distant from it, on the opposite side of the public roаd. It had no chimney, and there was neither a bed nor bed-stead in it. The owner slept there sometimes as oftеn as twice a week, and at' other times not once in two weeks. ’When he did sleep there, it was upon a pallet on the counter, the bed-clothing being kept in a box at the store. His sleeping there must, therefore, be regarded as only occasional, and that could not, in any sense, either technical or otherwise, constitute the store his dwelling-house.

The judgment must be reversed, and a venire ele novo awarded. This result withdraws from our consideration ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the other questions made on the trial of the cause.

Per OuRiAM, Judgment reversed.