#### State *v.*Allen Twitty.

IF an out-house be so near the dwelling-house, that it is used with the-dwelling-house, as appurtenant to it, burglary may be committed in it. In this case, the out-house was seventeen and a half feet from the dwelling-house-.

Indictment for a burglary in the mansion-house of the prosecutor, one *Saslip,*and taking from thence a cask containing twenty gallons of brandy, &c.

Upon evidence it appeared, that *Twitty*broke open, in the night time, a little out-house, about seventeen and a half feet from the dwelling-house, and took out the brandy, &e. and it was insisted on the part of the prisoner, that this was not burglary. The indictment lays it to be a mansion-house, but it has been determined, that where the jury find the house to be separated from the dwelling-house only eight feet, and that the breaking and entering was in that house, it is not burglary ; and cited an authority from *Leach,*who has a case, to that effect.

*E contra,*

it was urged, that if the out-house be so near the dwelling-house? that it is nsed .together with the *119-dwell ing-hojise as appurtenant to it, that it is burglary to break it in the night time with intent to commit a felony ; and it is not necessary for this purpose that it should be inclosed with the dwelling-house in the same inclosure — if it stands within the curtilage it is sufficient, —the meaning of which term in law is, a piece of ground cither inclosed or not, that is commonly used with the dwelling-house. *Jacob, verb. Curtilage.*6 *Rep.*64. And to prove that if the house stands within the curtilage, it is the subject of burglary, he cited *El. Com.*225. 1 *If. IL P. C.*558, 559. *II. P. C.*104. As to the case cited from *Leach,*he said it was so adjudged on account of the special finding. It must of necessity be stated in every indictment of burglary, that it was committed in a mansion-house ; and out-houses included within the curti-lage, according to the definition of that word just given, may be considered by the jury upon evidence given to them, to be parts and parcels of die mansion-house ; and may conclude and say upon such evidence, that the offence, was committed within the, mansion-house as laid in the indictment — like as in trover, when if, appears in evidence, the Defendant was possessed of the goods declared for, and that there was a demand by the Plaintiff, and a refusal on the part of the Defendant, the jury are warranted in concluding and finding there was a conversion ; but in the one case, if they do not expressly find it was a dwelling-house, but an out-house only; and in the other, if they do not expressly find a conversion, but possession, demand and refusal only — the Court cannot conclude in the one case, that it w'as a dwelling-house ; nor in the other, that there was a conversion — the Court are not empowered to draw any conclusion from facts specially proved or stated in a special verdict — that solely belongs to tbe province of the jury. Therefore the case cited from *Leach,*where the jury find it to be an out-, house, separated from the dwelling-house, and do not expressly say, as they ought, that it was a mansion-house, the Court must take it, as the jury have stated it, to be an out-house only, and not a mansion-house as stated in Use indictment; and of course they cannot say it was burglary, for that must be committed in a mansion bouse. Tisis is the reason why that case was so adjudged, and not because to steal out of such an house is not burglary 5 and so that case is not at all repugnant to what is laid down in the authors I have cited, but is perfectly *120consistent with what they have stated — and of this opt-were the Court; and both Judge. *Ashe*and Judge *Williams*charged the jury accordingly ; but yet they found him not guilty of the burglary, but guilty of the larceny only — and he was burnt in the hand and discharged.

*Note.*— State v. *Wilson, post*242. *State*v. *Langford,*1 *Dev. Rep.*253.