#### THE STATE *vs.*JAKE.

It if* not “burglary to break-and- enter ¡¡a smoke house tUirty-five'steps from a fl welling house, the dwelling house having no inclosure'around it.

A log cabin belonging to the owners of'» tobáceo .faotory, in which the Superintendent 'of the factory usuallj’ slept, is a dwelling house, in which burglary may be committed.

The canee of State *vs.*Langford, 1 Dev. 2B3, State *vs.*Jenkins, 6 Jones, 430; and State »i. Curtis, 4 T)ev, and Bat. 222 oitrt o;-l ippm-'d.

This was an indictment for burglary, tried before Eiusiích, J., at Fall Term, 1864, of Person Superior Court.

The evidence relative to tbe points on which the case turned in this Court, was, that Alexander Walker and two others were owners' of a tobacco *factor j*in Person county. The &etory and a smoke house. appurtenant to it, were inclosed ; one wall of the smoke house and on§ wall of the factory, forming part of the inclosure. The smoke house was fifteen feet from the factory. There was a log cabin about thirty-five or forty steps from the smoke house, belonging to tbo owners of the factory, and occupied by the Superintendent of the factory, who usually slept in it. This house was not inclosed. The Superintendent sometimes-kept the key of the house. There was evidence to show that the smoke house had been^ broken and entered in the night by the prisoner, ¿nd that some bacon had been stolen from it by him.

The jury found the prisoner guilty under the instructions of the Judge.

Attorney General for the State.

*Graham*for the prisoner.

*81Battle, J..

Burglary, at common law, is defined to be the breaking and entering the dwelling house of another, in’the night time, with intent to commit a felony, therein. Roscoe’s Cr. Ev., 298, State *vs.*Langford, 1 Dev. Rep., 253, State vs. Jenkins, 5 Jones' Rep., 430. Every permanent building, in which the owner or renter and his family, or any member thereof, usually and habitually 'dwell and sleep, is deemed a dwelling in which this crime may be committed. See Ros. Cr. Ev., 299, and the authorities there referred to, and State ns Jenkins, *ubi supra.*The term *“*dwelling house "‘includes within it not only the house in which the owner or renter and his family,* or any member of it? may live and sleep, but all other houses appurtenant thereto, and used as part'and parcel thereof, such as kitchen, smoke house, and the like ; provided they are within the curtilage, or are adjacent/- or very near to the dwelling house. State *vs.*Langford, *ubi supra,*State *vs.*White, 4 Jones, 349. If the kitchen, smoke house, or other house of that kind, be placed at a great distance from the dwelling, and particularly if it stand outside of the curtilage, or inclosed yard, it cannot be considered a part of the dwelling house, for the purpose of being protected against a burglary. The reason is that the law protects, from unauthorized violence, the dwelling house and those which are appurtenant, because it is the place of the owner’s *repose ;*and if he choose. to put his kitchen or smoke house so far from his dwelling that his *repose*is not likely to be disturbed by the breaking into it at night, it is his own folly. In such cases the law'will no more protest him than it will when he leaves his doors or windows open. State *vs.*Langford, *ubi*supra.

*82The principles, which we have thus stated as establishing the kind of' house in which a burglary may be com-mittd, we do not understand the counsel on either side to dispute. In their, application to the facts of the case now before us, the counsel for the prisoner contends : 1st, That the house in which the Superintendent Pulliam slept, was not such an one as the law' recognizes as a- dwelling house ; and secondly, if it were,, the smoke, or meat house which was broken open, was so situated in reference to it, that it oould not be considered as a part or parcel of it.

Upon the first point, our opinion is against the position taken by the prisoner’s counsel. The building is described to be a - small 'log house, and is called a log cabin ; but >t appears to have been a substantial, permanent one : and therein differs from a tent or a booth erected in a market or fair, in which no burglary could be committed, although the owner lodges in it. See 1 Hawk Pl. Cr., ch. 38, sect. 35, 1 Hale Pl. Cr., 559, Ros. Cr. Ev., 300. This house was in truth, the dwelling house of the owners of the tobacco factory, and not of the Superintendent, Pulliam, he being only their servant or employee. See State vs. Curtis, 4 Dev. and Bat. Rep. 222. But if it were taken to be the dwelling of Pulliam, there is a count in the indictment which so states it.

Ab to the second position taken for the prisoner, there is, perhaps more doubt, but upon mature-consideration, we think it is in his favor. The dwelling house in which Pulliam usually • slept was uninclosed, and of course had no curtilage, or inclosed yard; and the smoke house stood upwards of a hundred feet from it. The factory and the smoke house hail a common iaclosure, from which the log dwelling was excluded. ■ Under these circumstances, it geeras too much to say that the smoke house was appurte-*83mant to the log dwelling house. Indeed, it' did not ap-pearto hare been used as such ; for Pulliam, who slept in it, did not earrj the key to it, except occasionally : that being usually carried-by the acting manager of the partnership, who lived and slept in a dwelling house about a quarter of a mile off. The smoke house was doubtless •used for the purpose of storing meat and other things for the use of all the persons, white and black, who were engaged in the tobacco factory established at that place. It was the c< carelessness or indifference” of the proprietors, which placed it in such a situation /that it would not .enjoy that protection which the law affords against a bur-glarious entry.

The judgment must be reversed, and this decision be certified to the Superior Court, to the end, &c.