prisoner as the person who committed the offense. Held, that the question of the prisoner's guilt was properly submitted to the jury. Bloomer v. People, 3 Keyes, 9.

A party in possession of a chattel is, to all intents, the legal owner, except as to the rightful owner, and especially as against any wrongdoer or criminal trespasser. Rex v. Deakin, 2 Leach, C. C. 862; People v. Bennett, 37 N. Y. 117, 93 Am. Dec. 551, and cases therein cited; State v. Addington, 1 Bail. L. 310. The age of the person in possession of the goods cannot be material. People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240.

The cases abundantly sustain the position, that an averment of ownership in the person having the actual possession and control of the thing stolen at the time of the theft, is all that is required. People v. Bennett, supra, and cases cited.

It is held in People v. McDonald, 43 N. Y. 61, that if money or property is delivered by the owner to a person for mere custody or charge, or for some specific purpose, the legal possession remains in the owner, and a criminal conversion of it by the custodian is larceny.

§ 463. Views of Professor Greenleaf.-Professor Greenleaf, says (3 Greenl. Ev. § 231): "Evidence that the money or goods were obtained from the owner by putting him in fear, will support the allegation that they were taken by force. And the law, in odium spoliatoris, will presume fear, wherever there appears a just ground for it. The fear may be of injury to the person; or, to the property; or, to the reputation; and the circumstances must be such as to indicate a felonious intention on the part of the prisoner. The fear, also, must be shown to have continued upon the party up to the time when he parted with his goods or money; but it is not necessary to prove any words of menace, if the conduct of the prisoner were sufficient without them; as, if he begged alms with a drawn sword; or, by similar intimidation, took another's goods under color of a purchase, for half their value, or the like. It is only necessary to prove that the fact was attended with those circumstances of violence or terror, which, in common experience, are likely to induce a man unwilling to part with his money for the safety of his person, property, or reputa tion." The distinguished author cites in support of the propositions of his text the following authorities: Clary v. State, 33 Ark. 561; Dill v. State, 6 Tex. App. 113; Shinn v. State, 64

Ind. 13, 31 Am. Rep. 110; State v. Howerton, 58 Mo. 581; Foster, Crim. L. 128, 129; 2 East, P. C. 711, 712.

464. The Terms "Fear" and "Violence" Considered.It remains further to be considered of what nature this fear may be. This is an inquiry the more difficult, because it is nowhere defined in any of the acknowledged treatises upon this subject. Lord Hale proposes to consider what shall be said to a putting in fear; but he leaves this part of the question untouched. 1 Hale, P. C. 534. Lords Coke and Hawkins do the same. 3 Coke, Inst. 68; 2 Hawk. P. C. chap. 34. Mr. Justice Foster seems to lay the greatest stress upon the necessity of the property's being taken against the will of the party, and he lays the circumstance of fear out of the question; or that, at any rate, when the fact is attended with circumstances of violence or terror, the law in odium spoliatoris will presume fear, if it be necessary, where there appears to be so just a ground for it. Foster, Crim. L. 123, 128. Mr. Justice Blackstone leans to the same opinion. 4 Bl. Com. 242. But neither of them afford any precise idea of the nature of the fear or apprehension supposed to exist.

The amount and degree of violence which the accused must exert to bring him within the statute defining robbery, are not declared, and they manifestly could not be. The gravamen of the crime consists in taking "the personal property of another from his person, or in his presence, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person." In other words the violence to the person, or the fear of immediate injury to the person, which, against the owner's will, is sufficient to take his property, will, if the taking be felonious, render the taker amenable to the statute. It is not the extent and degree of force which make the crime, but the success thereof. In short, the force which is sufficient to take the property against the owner's will, is all that the statutes contemplate; the distinction between robbery and larceny consists in this, in the latter, the act "is accomplished secretly, or by surprise or fraud, while in the former the felonious taking must be accompanied by circumstances of violence, threats or terror to the person despoiled." 2 East, P. C. 559.

To authorize a conviction of theft of property recently stolen from the fact that the stolen property was in defendant's possession, such possession must be recent and personal, and there must

be a conscious assertion of claim to the property; and a reasonable doubt thereof requires an acquittal. Clark v. State, 30 Tex. App

402.

§ 465. Description of Property Stolen not Required.— "It would be unreasonable to expect one who is robbed of money or its representative to give an accurate description of it, and it would render it almost impossible to convict a thief or a robber if courts should undertake to require the prosecutor, in all cases, to give a particular description of the money or note feloniously taken. The failure to give an exact description can never endanger the liberty of an innocent man, but the enforcement of such a rule as that for which counsel contend would furnish the guilty with ready and easy means of escape." Riggs v. State, 104 Ind. 261.

§ 466. The Terms "Burglary" and "Break" Defined.— The breaking and entering the house of another in the nighttime, with intent to commit a felony therein whether the felony be actually committed or not. State v. Wilson, 1 N. J. L. +41, 1 Am. Dec. 216; Com. v. Newell, 7 Mass. 247; 3 Coke, Inst. 63; 1 Hale, P. C. 549; 1 Hawk. P. C. chap. 38, § 1; 4 Bl. Com. 224; 2 East, P. C. chap. 15, p. 484, § 1; 2 Russell, Crimes, 2; Roscoe, Crim. Ev. 252. The circumstances to be considered are, 1. In what place the offense can be committed; 2. At what time; 3. By what means; 4. With what intention. Bouvier, Law Dict. 196.

The offense must be committed in the night, for in the day time there can be no burglary. 4 Bl. Com. 224. And the intent must be felonious. 2 Russell, Crimes, 33. 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 offense. 3 Coke, Inst. 64; 4 Bl. Com. 227; Bac. Abr. title Burglary, B; Comyn, Dig. Justices, p. 4.

"The word "break," means and includes,

"1. Breaking or violently detaching any part, internal or exter nal of a building; or,

"2. Opening, for the purpose of entering therein, by any means whatever, any outer door of a building, or of any apartment or set of apartments therein separately used or occupied, or any window, shutter, scuttle or other thing used for covering or clos

ing an opening thereto or therein, or which gives passage from one part thereof to another; or,

"3. Obtaining an entrance into such building or apartment, by any threat or artifice used for that purpose, or by collusion with any person therein; or,

"4. Entering such a building or apartment by or through any pipe, chimney, or other opening, or by excavating, digging, or breaking through or under the building, or the walls or foundation thereof." N. Y. Penal Code, § 499.

"It seems agreed, that such a breaking as is implied by law in every unlawful entry on the possession of another, whether it be open or be inclosed, and will maintain a common indictment, or action of trespass quare clausum fregit, will not satisfy the words felonice et burglariter, except in some special cases, in which it is accompanied with such circumstances as make it as heinous as an actual breaking. And from hence it follows, that if one enters into a house by a door which he finds open, or through a hole which was made there before, and steals goods, etc., or draws anything out of a house through a door or window which was open before, or enters into the house through a door open in the day time, and lies there till night, and then robs and goes away without breaking any part of the house, he is not guilty of burglary.” 1 Hawk. P. C. chap. 38, §§ 4, 5.

467. What the State must Prove.-"On an indictment for burglary it is essential to prove, 1st, a felonious breaking and entering; 2d, of the dwelling-house; 3d, in the night-time; 4th, with intent to commit a felony.

"In the first place, it is a question of fact for the jury, whether the prisoner has been guilty of any act of breaking; but whether that act amounts to a burglarious breaking, is a pure question of law. There must be evidence of an actual or constructive breaking, for if the entry was obtained through an open door or window, it is no burglary. But the lifting of a latch; taking out a pane of glass; lifting up of folding doors; breaking of a wall or gates which protect the house; the descent down a chimney; the turning of a key where the door is locked on the inside, constitutes a sufficient breaking.

"Where the glass of the window was broken, but the shutter within was not broken, it was doubted whether the breaking was sufficient, and no judgment was given.

"Where an entry has been gained without any breaking, a subsequent breaking will constitute the offense; as where the party lifts the latch of a chamber door, or a servant raises the latch of his master's door with intent to murder or rob his master." Stark. Ev. 275.

2

§ 468. Presumptive Evidence of.-Where a burglary is connected with a larceny, mere possession of the stolen goods, without any other evidence of guilt, is not to be regarded as prima facie or presumptive evidence of the burglary.

But where goods have been feloniously taken by means of a burglary, and they are immediately or soon thereafter found in the actual and exclusive possession of a person who gives a false account, or refuses to give any account of the manner in which the goods came into his possession, proof of such possession and guilty conduct is presumptive evidence, not only that he stole the goods, but that he made use of the means by which access to them was obtained.

There should be some evidence of guilty conduct, besides the bare possession of the stolen property before the presumption of burglary is superadded to that of the larceny. Davis v. People, 1 Park. Crim. Rep. 447.

469. What is "Constructive Breaking."-It has frequently been held in this country, that the evidence must show beyond a reasonable doubt, that the accused obtained admission to a dwelling-house at night, with the intent to commit a felony, by means of artifice or fraud or upon a pretense of business or social intercourse, is a constructive breaking, and will sustain an indictment charging a burglary by breaking and entering. Johnston v. Com. 85 Pa. 54, 27 Am. Rep. 622; Rolland v. Com. 82 Pa. 306, 22 Am. Rep. 758; State v. Wilson, 1 N. J. L. 439, 1 Am. Dec. 216; State v. McCall, 4 Ala. 643, 39 Am. Dec. 314; Bishop, Statutory Crimes, § 312, and cases there cited. The same was held in Ohio under a statute against "forcible" breaking and entering. Ducher v. State, 18 Ohio, 308. But it is claimed that in the state of Wisconsin, the common law doctrine of constructive breaking has no application to a case of this kind, and in fact is superseded by statute, except in so far as it is re-affirmed. Thus: "Any unlawful entry of a dwelling or other building with intent to commit a felony, shall be deemed a breaking and entering of such dwelling-house or other building, within the