were acquired and turned over to him by a person not taking them by mistake, not by right, but taking them as thieves take them, that is, for the purpose of defrauding the railroad and cheating them out of their property."

66

The defendant's counsel here suggested by larceny," and the judge gave this further instruction :

"By the taking and carrying away of property it is the fraudulent taking away of the property of another for the purpose of converting it to the taker's use to deprive the owner of it. These goods must have been taken that way and were stolen goods; they must have been taken by McCarthy as thieves take them, not by mistake or accident, or by taking from those who had no right to give, but taking when he knew that he had no right to take them."

The jury returned a verdict of guilty on the third count, and of not guilty on the other counts, and the defendant alleged exceptions.

FIELD, J. The offence of receiving stolen property, knowing it to have been stolen, must be considered as distinct from the offence of receiving embezzled property knowing it to have been embezzled, Pub. Sts. c. 203, §§ 48, 51, although embezzlement under our statutes has been held to be a species of larceny. Commonwealth v. Pratt, 132 Mass. 246. The punishments of the two offences may be different, as the offence of receiving embezzled goods may be punished by a fine without imprisonment. If the property had actually been stolen, a belief on the part of the defendant that it had been stolen is tantamount to knowledge. If the defendant knew all the facts and the facts constituted larceny as distinguished from embezzlement, it would be no defence that the defendant thought that the facts constituted embezzlement. If the defendant did not know the facts, but believed from the circumstances that the property had been either embezzled or stolen, and it had been actually stolen, it was competent for the jury to find the defendant guilty of the offence charged. The second request for instructions was therefore rightly refused.

The first request for instructions states the law with substantial correctness. It is contended that the instructions given on this point, rightly construed, are the same in effect. We find it unnecessary to decide whether the case called for a more careful definition of larceny as distinguished from embezzlement or from wilful trespass.

Exceptions sustained.1

1 See Reg. v. Rymes, 3 C. & K. 326. — ED.

CHAPTER XII

CRIMES AGAINST THE DWELLING-HOUSE.

SECTION I.

Burglary.

STAUNFORD, Pleas of the Crown, 30 a. Burglars are those who feloniously in time of peace break houses, churches, walls, towers, or gates, for which burglary they shall be hanged, though they took nothing away. Ut patet tit. Coron. in Fitz. p. 264, p. 185, & p. 178. But yet they ought to have felonious intent to rob or kill or do other felony. For if a man be indicted quod domum I. S. felonice fregit ad ipsum verberandum, that is only trespass, for by this his intent in the breaking is made known. It is otherwise if it be domum fregit ad ipsum interficiendum, &c. But if a man be indicted quod clausum I. S. felonice fregit ad ipsum interficiendum, that is not burglary, per HANKFORD & HILL, M. 13 H. 4, f. 7. The same is law if he break the house and do not enter into it. Et nota that for anything contained in those books, burglary may be done as well by day as by night, &c. But the law is not so taken, for all the indictments for burglary are quod noctanter fregit, &c. Vide Britton for burglars, fo. 17; for I do not remember that I have read anything of it in Bracton, save that he speaks in one place in this way, scil.“ Si quis homsoken, quae dicitur invasio domus contra pacem, in domo suo defenderit & invasor occisus fuerit impersequutus, & inultus remanebit, dum tamen ille qui invasus est, aliter se defendere non potuit. Quia dicitur non est dignus pace qui non vult servare

1 Hawk. P. C. ch. 17, Sects. 1, 2, 3, 11, 18, 21. Burglary is a felony at the Common Law, in breaking and entering the mansionhouse of another, or (as some say) the walls or gates of a walled town in the night, to the intent to commit some felony within the same, whether the felonious intent be executed or not.

There are some opinions, that burglary may be committed at any time after sun-set and before sun-rising; but it seems the much better

opinion that the word noctanter, which is precisely necessary in every indictment for this offence, cannot be satisfied in a legal sense, if it appear upon the evidence, that there was so much daylight at the time that a man's countenance might be discerned thereby.1

Notwithstanding some loose opinions to the contrary, there seems to be no good cause to doubt but that both [an actual entry and breaking] are required to complete this offence; for the words fregit and intravit being both of them precisely necessary in the indictment, both must be satisfied. And a fortiori therefore there can be no burglary where there is neither of them; as if on a bare assault upon a house, the owner fling out his money.

Any the least entry either with the whole, or but with part of the body, or with any instrument, or weapon, will satisfy the word intravit in an indictment of burglary; as if one do but put his foot over a threshold, or his hand or a hook or pistol within a window, or turn the key of a door which is locked on the inside, or discharge a loaded gun into a house, &c.

may be

A house wherein a man dwells but for part of the year called his dwelling-house; and will sufficiently satisfy the words domus mansionalis in the indictment, whether any person were actually therein or not, at the time of the offence.

All out-buildings, as barns, stables, dairy-houses, &c., adjoining to a house, are looked upon as part thereof, and consequently burglary may be committed in them.

ANONYMOUS.

LENT ASSIZES. 1554.

[Reported Dyer, 99a, pl. 58.]

ONE was indicted for that he burglariously broke open a church in che night in order to destroy and steal the goods of the parishioners therein being, but took nothing away. And BROMELEY, J., held clearly that this is burglary; but he said that it ought to be broke and entered.

In Com. v. Chevalier, 7 Dane Abr. 134 (1794) the jury found that a breaking was not in the night which took place at eighteen minutes after two o'clock on the morning of June 27th.

Mass. Pub. Stats. ch. 214, sect. 15. When an offence is alleged to have been com. mitted in the night-time, the time called night-time shall be deemed to be the time between one hour after the sun-setting on one day and one hour before sun-rising on the next day.

RESOLUTION.

ALL THE JUDGES OF ENGLAND. 1584.

[Reported Anderson, 114.]

ALL the justices assembled at Serjeants' Inn agreed that if one break the glass in a window in the dwelling-house of any one, and there with hooks draw carpets out, and feloniously steal them, it is burglary if it be done at night, though the man who does it do not enter or break the house otherwise; and this case was put for a purpose, in order that the justices of Assize in the county of Warwick might know the law before the Assizes, where this case was to come in question for an offence committed at Erdeburgh in said county. At this time the following case was also put by the said justices, that thieves in the night come to a dwelling, and some one within comes and opens the door, and when it is open, one of the thieves intending to kill the man shoots at him with a gun, the bullet from which misses the man and breaks the wall on the other side of the house. And it was agreed by all that this is no burglary; and this also was in order to know the law in this case, which happened in the county of Derby where they were also justices. And as bearing upon these cases an actual case was put, which was this, scil. In the night one who intended to kill another in a house broke a hole in the wall of the dwelling, and perceiving where the person was, shot at him through the hole with a gun and missed the person, which was adjudged as burglary: so where one broke a hole in the wall and seeing a man with a purse of money hanging from his girdle coming by the hole, snatched at the purse and took it, this too was agreed to be burglary; which happened in Essex. And then it was remembered that one went to the window of Mr. Cave's study in the county of Leicester, and perceiving a casket with money in it, drew it to the window and took money out of it, and for this he was hanged in the county of Leicester. For in all these cases of burglary there is a breaking of the house to commit felony in the night; which makes the offence burglary. But in the preceding case of shooting with the gun into the door and breaking the wall with the bullet, it is not a breaking of the house with intent to commit felony; wherefore it is not burglary.

Ir was resolved by all the justices at Serjeants' Inn, that the breaking of a dwelling-house at night with intent to rob or kill a man is

burglary, though no one be in the house. And if one has two dwellinghouses where he lives in turn, if a thief break at night the house from which he is absent it is burglary, and all the old precedents of indictments for burglary are noctanter et felonice, without allegation of any person put in fear of death. And the reason of the old precedents varying from those of modern times by mentioning that one was in fear of death is because the Statute 23 H. 8 takes away clergy from a burglar where any one is put in fear of death, but not otherwise.

REX v. FIDLING.

KING'S BENCH. 1607.
[Manuscript.1]

ONE Fidling was indicted for burglary; and the indictment was that he the mansion house of A felonie fregit, and him and all his family put in terror of their lives, with intention the said A de bonis et pecuniis spoliandis. Exception was taken to this indictment, because it said only fregit and not intravit, according to the opinion of Bromeley in 1 Mary, Dy. fo. 99, pl. 58. But per Curiam; The indictment is good enough; for if he breaks the house feloniously with intent ut supra it is burglary, although he does not enter.

It was also objected that intentione ad spoliandum shall be taken only as a trespass; but per Curiam, felony ad spoliandum shall be taken to be a felony.

LE MOTT'S CASE.

ABOUT 1650.

[Reported Kelyng, 42.]

Ar the Sessions I inquired of Le Mott's Case, which was adjudged in the time of the late troubles, and my Brother Wyld told me that the case was this: That thieves came with intent to rob him, and finding the door locked up, pretended they came to speak with him, and thereupon a maid-servant opened the door, and they came in and robbed him, and this being in the night-time, this was adjudged burglary and the persons hanged; for their intention being to rob, and getting the door open by a false pretence, this was in fraudem legis, and so they were guilty of burglary though they did not actually break the house, for this was in law an actual breaking, being obtained by fraud to have

1 This case, though never before printed, is cited in Vaillant's Dyer, 99 note.