Crim. law. The breaking and entering the house of another in the night time, with. intent to commit a felony therein, whether the felony be actually committed or not. 3 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38, s. 1; 4 Bl. Com. 224; 2 East, P. C. C. 15, s. 1, p. 484; 2 Russell on Cr. 2; Roscoe, Cr. Ev. 252; Coxe, R. 441; 7 Mass. Rep. 247.
2. The circumstances to be considered are, 1. in what place the offence can be committed; 2. at what time 3. by what means; 4. with what intention.
3.- 1. In what place a burglary can be committed. It must, in general, be committed in a mansion house, actually occupied as a dwelling; but if it be left by the owner animo revertendi, though no person resides in it in his absence, it is still his mansion. Fost. 77; 3 Rawle, 207. The principal question, at the present day, is what is to be deemed a dwelling-house. 1 Leach, 185; 2 Leach, 771; Id. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 558; Hawk. c. 38, s. 18; 1 Russ. on Cr. 16; 3 Berg
. & Rawle, 199 4 John. R. 424 1 Nott & M'Cord, 583; 1 Hayw. 102, 242; Com. Dig. Justices
, P 5; 2 East, P. C. 504.
4. - 2. At what time it must be committed. The offence must be committed in the night, for in the day time
there can be no burglary. 4 Bl. Com. 224. For this purpose, it is deemed night when by the light of the sun a person cannot clearly discern the face or countenance of another 1 Hale, 550; 3 nst. 63. This rule, it is evident, does not apply to moonlight. 4 Bl. Com. 224; 2 Russ. on Cr. 32. The breaking and entering need not be done the same night 1 Russ. & Ry. 417; but it is necessary the breaking and entering should be in the night time, for if the breaking be in daylight
and the entry in the night, or vice versa
, it will not be burglary. 1 Hale, 551; 2 Russ. on Cr. 32. Vide Com. Dig. Justices, P 2; 2 Chit. Cr. Law, 1092.
5.-3. The means used. There must be both a breaking and an entry. First, of the breaking, which may be actual or constructive
. An actual breaking tal-,es place when the burglar
breaks or removes ally part of, the house, or the fastenings provided for it, with violence. Breaking a window, taking a pane of glass out, by breaking or bending the nails, or other fastenings, raising a latch where the door is not otherwise fastened; picking open a lock with a false key; putting back the lock of a door or the fastening of a window, with an instrument; turning the key when the door is locked in the inside, or unloosening any other fastening which the owner has provided, are several instances of actual breaking. According to the Scotch law, entering a house by means of the true key, while in the door, or when it had been stolen, is a breaking. Alis. Pr. Cr. Law, 284. Constructive breakings occur when the burglar gams an entry by fraud, conspiracy
or threats. 2 Russ. on Cr. 22 Chit. Cr. Law, 1093. The breaking of an inner door of the house will be sufficient to constitute
a burglary. 1 Hale, 553. Any, the least, entry, with the whole or any part of the body , hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, will be sufficient to constitute the offence. 3 Inst. 64; 4 Bl. Com. 227; Bac. Ab. Burglary, B Com. Dig. Justices, P 4. But the introduction of an instrument, in the act of breaking the house, will not be a sufficient entry, unless it be introduced for the purpose of committing a felony.
6. - 4. The intention. The intent of the breaking and entry must be felonious; if a felony however be committed, the act will be prima facie evidence of an intent to commit it. If the breaking and entry be with an intention to commit a bare trespass, and nothing further is done, the offence will not be a burglary. 1 Hale, 560; East, P., C. 509, 514, 515; 2 Russ. on Cr. 33.