#### STATE *v.*WHIT, *a Slave.*

A smoke-house, opening into the yard of a dwelling-house, and used for its cofhmon and ordinary purposes, is, in law, a part of the dwelling, and in the breaking and entering of which a burglary may be committed.

There is no presumption of law arising from any fact, that a felonious breaking into a dwelling-house was committed in the night-time, rather than the day; an 1 before a defendant can be convicted of burglary, that fact, must be proved,-either directly or indirectly.

This was an indictment for bueglaey, tried before Ellis, Judge, at the Spring Term, 1857, of Chowan Superior Court.

Upon the trial, Doctor .Charles Smallwood swore that he lived in Bertie county; that his smoke-house was about twen*350ty-four yards from his dwelling, which was his usual place of residence. The fence enclosing the house did not include the smoke-house, but all of this building was without the yard, except the front end, which formed a part of the yard fence ; the door of the smoke-house opened into the yard; that the smoke-house was used for storing meat, and all the purposes for which such buildings are ordinarily applied; that about sun-rise, one morning, before the finding of the bill, he found the door of his smoke-house open, several pieces of meat missing, and the molasses running out of the cock of the barrel, a considerable quantity having already run out upon the floor.

It did not appear that there were any marks of violence about the door, or any other part of the house, nor did the witness say that the door had' been locked the night before ; nor even that the door had a lock upon it, nor were any of these questions asked by the solicitor, or the counsel for the defendant. A large watering pot was missing. It was in evidence that the defendant was a runaway slave when the smoke-house was found open; that he had been arrested a few months before the trial, when, in consequence of his resistance, much violence w.as used upon him. He was cut in several places, bled much, and suffered much pain. While in this situation, he was asked if he was not the boy that broke into Dr. Smallwood’s smoke-house. To which he replied he was. He was asked by the same person what made him do it. His answer was, that he was bound to have something to eat. This conversation was held with the individual who captured the prisoner at his house, and he swore that he used no threats, or promises, to elicit the confession. Dr. Smallwood, who was in an adjoining room, was told that this was the boy that had broken open the smoke-house. He came into the room and asked the defendant if he did it; to which he replied, that *“*he did.” He was asked then, if any one assisted him in breaking open the smoke-house; he said *“*not.” He was asked, why he had not stopped the molasses barrel; to which he answered, “ he thought he had done so.” He *351was asked, what he did with the watering pot; he said “ he had thrown it into the river.”

The defendant’s counsel objected to the conviction:

1st. Because the house described was not a dwelling-house, within the meaning of the statute.

2nd. Because there was no sufficient evidence of a breaking.

■3rd. It did not appear that Dr. Smallwood lived in the dwelling-house on the premises.

4th. The confessions were under duress and inadmissible.

Among other things, the Court charged the jury that they should receive the confessions of the prisoner with caution, having due respect to the situation in which he was when they were made; that if the confessions satisfied them that the prisoner broke into the smoke-house of the witness, as charged, in the night time, and stole therefrom a quantity of bacon, he would be guilty. That the smoke-house, as described, was such a building as the law contemplated in the use of the word dwelling-house.

Defendant’s counsel excepted to the admissibility of prisoner’s confessions, and to the charge.

There was a verdict of guilty. Judgment and appeal.

*Attm'ney General,*for the State.

No counsel appeared for the defendant in this Court.

Nash, C. J.

The indictment is for a burglary committed in the dwelling-house of Charles Smallwood. Burglary is a felony at common law; and a burglar is defined by Lord CoKE, 3rd Institute 63, to be “ one that, in the night time, breaketh and dntereth into a mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed- or not.” To a conviction, it is necessery to prove : *fivt'st,*the breaking; *second,*the entering; *third,*that the house broken and entered, is a mansion-house; *fourth,*that the breaking and entering was in the night time; *fifth,*that the breaking and entering were with intent to commit a felony.. *352In all these particulars there must be proof satisfactory to tlie minds of the jury; and if the State fails upon any one point, the prisoner is entitled to an acquittal.

The house entered, in this case, was the smoke-house of Dr. Smallwood. The first question is, did the smoke-house, at the time of the entry and breaking, constitute a part of the mansion-house? Upon this point, the evidence of Dr. Small-wood is, that he lived in Bertie County; that his smoke-house was about twenty-four yards from his dwelling, which was the usual place of his residence; the fence- enclosing the dwelling did not include the smoke-house, but all of this building was without the yard, except the front end, which formed a part of the yard fence, the door of the smoke-house opening into the yard; that he used the smoke-house for storing meat, and for all the purposes to which such buildings are ordinarily applied.

For the prisoner, it is insisted that the smoke-house, in this case, constituted no part of the mansion-house, as it stood twenty-four yards from it, and was not included within the same common fence. The dwelling-house, at common law, includes, not only the premises actually used as such, but also such out-buildings as were within the curtilage, or court-yard, surrounding the mansion-house. Boscoe’s Crim. Ev. 348,362. The smoke-house was a building used with the dwelling-house, and necessary to it in this country ; and the only door it had, opened into the yard. In legal contemplation it was within the curtilage, as one side of it constituted a part of the common enclosure. This principle has been recognised in this State; the leading cases are those of the *State*v. Twitty, 1 Hay. 102 ; *State*v. *Wilson,*1 Hay. 242 ; *State*v. Langford, 1 Dev. 253. The objection, then, that the smoke-house was not a part of the dwelling-house, cannot be sustained. It was within the curtilage, and used with the dwelling-house.

It is seen, that a part of the definition of burglary is, that the breaking and entering must be in the night time, and this must be proved by the State; for it is an essential allegation in the bill of indictment. There was no evidence to> *353show (hat this was the fact. Dr. Smallwood states that, about .sun-rise, one morning, ho found the door of the smoke-house open, and the articles specified, missing. The case does not state what white family he had, or where they slept that night. He further states, that he found the molasses still running out of the barrel on the floor. ITow much molasses was in the barrel the night before, or how much there was still in it — to what extent tire floor was covered with it, we are not informed. If it had been set to running in the night, it probably would have ceased running before morning; and the fact that it was still running, rebuts, the idea of its having been long in that situation, and is entirely consistent with the idea that it was set to running after day-light. On the part of the State, it was insisted that, as the prisoner was a runaway slave, it was more likely that it was done in the night, as he would be careful of showing himself in the day. This may be so, but from thence the law cannot presume the fact; and when the law does not presume the existence of a fact, there must be proof, director indirect, before the jury can rightfully presume it. 1 *Cobb*v. Fogleman, 1 Ire Rep. 440 ; *State*v. *Revels,*Bus. Rep. 200. Here, there is neither direct, nor indirect proof that the entry was in the night. No proof whatever to ascertain that fact. Tiie inference drawn by the State, from the fact that the prisoner was a runaway slave, might well apply, if the’ question was whether he had committed the act, but has no bearing whatever in fixing- the time.

Per Curiam. There is error, and must be a *venire de novo.*