Opinion
July Term, 1827.
From Lincoln.
1. Burglary can only be committed in a dwelling-house, or such outbuildings as are necessary to it as a dwelling.
2. Therefore it is not burglary to break the door of a store, situate within three feet of the dwelling, and inclosed in the same yard.
THE prisoner was indicted for a burglary, and on the trial before Strange, J., the breaking proved was of the doors of a store opening into the street; the store was within three feet of the dwelling-house of the owner, and was inclosed by the same fence, but there was no entrance common to both. His Honor instructed the jury that if they believed the breaking as proved, it was a burglarious one, and the prisoner was guilty.
No counsel for the prisoner.
Attorney-General for the State.
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 prima facie 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. 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 in King 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.