#### *The*Stat*e v*. Henry A. Langford,

From Lincoln.

Burglary can only be committed in a dwelling-house, or such outbuildings as are necessary to it *as a dwelling.*

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 his honor Judge Strange, the breaking proved, was of the door of a store opening into the street, the store was within three feet of the dweliing-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.

A verdict being rendered for the State, and judgment of death awarded, the Defendant appealed.

No counsel appeared for the prisoner in this Court. The Attorney-General submitted the case on the part of the State, only referring to 2 Russell, *915*— Cassell’s *case*(1 *Hale,*558 — 1 *Hawkins, ch.*38, *sec.*21 & 25) *Gibson’s case,*(1 *Leach*396).

Henderson, Judge.

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 cáse where crime in the highest degree is not dependent on the consummation of the intent, in almost all other offences there is a *locus p cénit entice.*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, hut also all others appurtenant thereto, as parcel or parts thereof, from meditated *harm;*thus the kitchen, the landry, the meat or smoke-house, *254and the dairy are within its protection j for they are all used as parts of one whole, each contributing in its *1*nii way, to the comfort and convenience or 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 labour, as a workshop, for vending goods, as a store-house, 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 eontiguily to the dwelling may afford convenience or comfort to the occupant, as a mechanic, a labourer or a shopkeeper, but none to him as an house-keeper. These principles, I think, are fully recognized in the case of the *King*v. *Egginton*(2 *Bos. & Pul.*508) and spoken of in *East, Starkie*and *Mussel,*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 unincloscd ? — 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 *dwelling-house*farther than to embrace the dwelling itself, and such houses as arc used as part or parcel thereof — such as are used with the dwelling, considered as a dwelling-*255house, and tending to render it convenient and comfortable to the dweller as an house-keeper. If it be asked on the other side, what is to be done where the kitchen or pant,.y is placed at a great distance from the dwelling, whether it is to be protected as part thereof? It is answered that it most 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.

Tayiok, Chief-Justice*,

disseniiente_The definition of Burglary, as furnished by the best Writers on criminal law, and explained by adjudged cases, does, in my opinion, include the case under consideration. The mansion, according to *Male,*not only includes the dwelling-house, hut also all the outhouses — such as barns, stables, cow-houses, dairy-houses, and the like, if they be part of the messuage, though they be not under the same roof, or joining contiguous to it. An outhouse upon a lot in a town, cannot be more completely placed within the protection affor ded by law to the mansion-house, than this store was. It was three or four feet only from the dwelling-house, and conm eted with it by a gate, and it was under the same fence on all sides, where a fence could he made, so as to be within the curtilage, or piece of ground lying near, and belonging to the dwelling-house. In these circumstances, it is stronger than *Castle’s case*(l *Hale*558) where two men were’eondomned for breaking open a back-house of *Castle’s,*eight or nine yards distant from the dwelling-house, only a paie reaching between them. It is as strong ^as the case of *Gibson*and *256others reported in *Leach.*Tlicre the siiop was built close and adioinine; to the <l\ve!line:-house., but there was no . . . , , , , internal communication between the house and the shop, and no person slept in the shop. The only door to the shop was in the court-yaid before the house and shop, which court-yard was inclosed by a wall three feet high. In the wall ivas a wicket which served as a communication to both the house and the shop. The burglary was committed in the shop, and the conviction was held to be proper. That case must have proceeded on the principle that the proximity of the shop to the mansion, placed it under the same privilege and protection. • It was burglary, because the shop was within the curtilage, and not because the house and the shop were both inclosed by the same fence, for that is not essential to the formation of the curtilage, as appears from *Brawn's case,*cited in *East's F. C.*493. Nor can it be collected from *Castle's case,*already cited, that there was any common inclosure.

These cases seem to me to show the. conviction here to have been proper j and I ihink their aullmrity is strengthened by the cases relied upon in behalf of the prisoner, which being founded, in my view of them, on exceptions to the rule, prove the existence of the rule itself.

The first is *Garland’s case fLeach*130) where the breaking was of an outhouse, and occupied by the owner witlqhis dwelling-house, and separated therefrom by an open passage of eight feet wide, but the outhouse was not connected with the dwelling-house by any fence inclosing both. The prisoner was acquitted, because the outhouse was so separated from the dwelling-house, and not within the same common fence. But in the case before us both circumstances exist, from the absence of one of which, the prisoner was acquitted in *Garland’s case.*For here the store was connected with the dwelling-house, and both were inclosed within the same fence j for I consider a fence on three sides, where the front is *257on a street in a town, as equal to a fence all round in °^ier situation. But in *Garland’s case,*the prisoner must have been convicted without the fence, if the out-j)0Use Oeen connected with the dwelling-house by a pale, instead of being separated from it, by an open passage, otherwise the principles of *Castle’s case*would have been disregarded.

*Parker’s case,*cited from 4 *John.*433, is the same as *Garland’s case,*save only in the distance of the store from the dwelling-house. It was not connected with tiie house, nor was there any inclosure.

*Egginton’s case*(2 *Bos.*& *Pul.*508) was decided on grounds which have no application to the circumstances of this case. From the facts stated in that case,— from the points relied upon by the prisoner’s Counsel in arguing it, and from, the manner in which it is constantly quoted by writers, I infer that the judgment proceeded on the ground that the centre building was severed from the mansion-house by lease or otherwise, and adapted to the use of several manufactories, the partners of which had it on their joint occupation *;*consequently, it could not be considered as the mansion-house of *M. E. Boulton.*So if a man let a shop only, and sever it from his house for years, and the party who hath the shop does not lodge in it, and this be broke open in the night-time, it is no burglary. *Kelyng*84. If *Boidton*had used the centre building in a manufactory of his own exclusively, it must have been considered as part of his dwelling-house, although there was no internal communication between them.

The books may, be searched in vain for any rule or case, referring to the use made of an outhouse as tiie criterion whether burglary can be committed by breaking it open. A shop or manufactory may, in judgment of law, be part of the mansion-house, as much as a dairy or stable, or any other house subsidiary to the comfort and *258enjoyment of the mansion, as some of the cases already remarked upon, show. And *Mr. Justice Blackstone*says, if the barn, stable or *warehouse,*be parcel of the mansion, and within the same common fence, a burglary may be committed therein, for the capital house protects and privileges all its branches and appurtenants, if within the curtilage or homestall. (4 *Bl. Com.*225). *Lord Coke*divides a mansion-house into two branches, viz. to inset edifices, as hall, parlour, buttery, kitchen and lodging chambers, and the outset buildings, as barns, stables, cow-houses, dairies, &c. All these are parcels of the mansion-house, and will pass by that name. Without ascribing to his lordship’s *et cetera,*the same extent which he gives to some of *Littleton’s,*we may fairly understand it as including all the houses within the home-stall, whatever may be their use. It would be strange too in practice, to protect a more remote dairy, and leave unprotected a contiguous store, presenting much stronger temptations.

This is my view of the case maturely considered, though expressed with all possible brevity j but as it may be erroneous, I am highly gratified that the opinion of my brothers renders it harmless to the prisoner.

Ter Curiam. — Judgment reversed, and rule for a new trial made absolute.