We concur with his Honor, that there was evidence to be left to the jury, (and we think strong evidence,) that the prisoner was the person, who made the outcry and gave the false alarm of “ fire.” We also concur with him, that there was evidence to be left to the jury, of the felonious intent, charged in that indictment.
But as to that part of the charge, which refers to the burglarious breaking, there is a difference of opinion between the members of this Court; and I proceed to give my own opinion.
The prisoner’s counsel moved the Court to charge, “ that there was no such breaking, as would constitute a b .irgiary.”
The Court charged, “ that, if the prisoner made the outcry for the purpose of decoying Mr. McNatt out of the house, and told a falsehood about the plantation being on fire to decoy him off, with the intent to enable him to enter, to steal and rob, and he entered the house at the time deposed to, and committed the robbery, it would be such a fraudulent and constructive breaking, as would constitute a burglary.”
I am not willing to extend the doctrine of constructive breaking further than the decisions have already carried it. In my opinion, the charge of his Honor goes beyond any of the cases, cited in the argument, and any that I have met with.
Constructive breaking, as distinguished from actual forcible breaking, may be classed under the following heads.
1st. When entrance is obtained by threats, as if the felon threatens to set fire to the house, unless the door is opened.
*4682nd. When, in consequence of violence commenced or threatened, in order to obtain entrance, the owner, with a view more effectually to repel it, opens the door and sallies out, and the felon enters.
3rd. When entrance is obtained by procuring the servants or some inmate, to remove the fastening.
4th. When some process of law is fraudulently resorted to, for the purpose of obtaining an entrance.
5th. When some trick is resorted to, to induce the owner to remove the fastening and open the door, and the felon enters, as, if one knock at the door, under pre-tence of business, or counterfeits the voice of a friend, and, the door being opened, enters.
In all these cases, although there is no actual breaking, there is a breaking in law or by construction ; “ for, the Jaw will not endure to have its justice defrauded by such evasions.” In all other cases, when no fraud or conspiracy is made use of, or violence commenced or threatened, in order to obtain an entrance, there must be an actual breach of some part of the house. 2 East. 484,4S9.
A sixth class is added by statute 12th Anne, when one, being in a house, conceals himself, and at night rifles the house, and breaks out.
Two remarks may be made upon all the adjudged cases of constructive breaking.
There is no case, when the entry was not made immediately after the fastening was removed, or so soon thereafter, as not to allow a reasonable time for shutting the door and replacing the fastening.
There is no case, when the artifice resorted to, was not apparently and expressly for the purpose of getting the fastening removed ; whereby to gain admittance without breaking it, and so “ defraud the law of its justice by an evasion.
- In this case, the entry was not immediate. Fifteen minutes expired, during which there was ample opportunity, *469to replace the fastening. It was gross neglect not to fasten the door, and put the dwelling under the protection of the law, so far as the fastening was concerned. This highly penal law was not intended for the protee^ tion of those, who neglect to fasten.
Upon this ground, I think the charge was wrong. If a felon actually breaks, as by boring through and removing the fastening, on one night, and enters the next night, it is burglary; but, if the owner finds it out, and leaves it so, even although it be for the purpose of apprehending the felon, it would not be burglary, for the fastening was hot relied upon.
I also think the charge was wrong upon the other ground. If one, intending to go at night and rob a house, tell the owner during the preceding day, that some friend at a distance, say twenty miles, wishes to see him on urgent business, and, by this false word, induces him to leave home ; and goes at night, finds the door unfastened, enters and steals, it is not burglary ; because it was the neglect of the owner, not to fasten his house, and because it could not be supposed to have been the purpose of the felon, to procure the door to be left unfastened, as well as to get the owner out of the way.
In this ease, the apparent purpose was to induce McNatt to leave home. It may be, that the purpose also was to have the door unfastened, at the time it was the design of | the prisoner to enter, but this latter was not the apparent \ purpose and was a remote and contingent circumstance,„j and, in all probability, was not calculated upon ; for, it was reasonable to suppose, after McNatt left home at night, his wife would in common prudence secure the door. At all events, whether this latter purpose was entertained by the prisoner, as well as the apparent purpose of inducing McNatt to leave home, was a matter of doubt.
As the interval between the time of the artifice and the entry increases, the probability, that this double purpose *470existed, diminishes. Here the interval was fifteen minutes, and it certainly was necessary for the jury to find, that there was this double purpose, to justify a conviction.
I admit the omission to charge in a particular way, or to draw the attention of the jury to a particular distinction, is not error, unless it is suggested, and the Judge is requested so to charge. But it is error to lay down a proposition, which is not true and is calculated to mislead, by inducing the jury to return a verdict without passing upon a material fact.
The charge is, if the outcry was made to decoy Mc-Natt out of the house and the falsehood was told to decoy him off,’ with the intent to enable the prisoner to enter, it was a constructive breaking. What is the meaning of this ? How was the prisoner to be enabled to enter ? Obviously, by getting McNatt out of the house, and decoying him off, so that an entry could be made in his absence and without opposition by him. This is the only fact, to which the jury were called upon to respond. The proposition does not involve the further fact, that the intention was also to enable the prisoner to enter, by having the door left unfastened, at the time he designed to make the entry ; and, therefore, the proposition is not true in point of law. In other words, the jury were only to find the single intent, of being able to enter by getting McNatt off, and not the double intent, of being able to enter by getting him off, and also having the door left unfastened ; which latter fact is material to a conviction ; admitting, for the sake of argument, that the entry need not be made immediately, or so soon after the door is opened, as not to allow time to replace the fastening, as insisted upon in the ground first taken.
I think the judgment should be reversed and a venire de novo awarded.
Burglary is defined to be a breaking and entering the dwelling house of another, in the night time, with intent to commit a felony. To constitute the of-fence, the breaking and entering must combine. The common law has, in all times, regarded with peculiar tenderness the dwelling houses of the citizens; and Judges, to carry out what was considered the intention of the law, have in their adjudications of what shall be a breaking and an entry, resorted to a system of refinement, which, in my opinion, is too regardless of human life. The struggle seems to have been, who should be the most ingenious in finding reasons, for bringing cases within the grasp of the law, rather than in finding reasons to temper its severity. The old decisions, as W'ell as many of the modern, will, upon examination, justify the remark. The word break is one of familiar use and meaning — it means to separate by violence the parts of any particular substance or thing. To break a house, therefore, would, in common parlance, be to break by violence any part of it. This definition was, at an early period of the history of' the law upon the subject, laid aside ; and a breaking was adjudged to be any violation of that mode of security, which the occupier ha’d adopted. Thus, not only the picking of a lock, a turning of a key left in it, and thereby unlocking it, but "the lifting of a latch or the raising of a window, kept in its place only by its own weight, have all been gravely adjudged to be an actual breaking. 1 Russ. 2, 4 Black. Com. 224. But another species of breaking was invented by the Judges, called constructive breaking. It would seem that the lifting of a latch w'ould have been sufficiently constructive. But cases were brought before the Courts, in which the proprietor of the house himself removed the fastening of his door and opened it, and when so opened, the trespasser entered. It was adjudged, that whenever the opening of the door was procured by fraud, threats, or *472conspiracy, it was in law a breaking. To complete the crime, however, it was necessary, that the felon should enter the house. In common understanding, to enter a house', is to go into it. But we are told, the law, which is common sense, does not mean such an entry. But, if in his effort to get in, after having so procured the door to be opened, or while it is shut, any portion of his person, or of his limbs, enter, however small the part be, or how small the distance may be, that it has been within the four, walls, the burglary, so far as the entering is concerned, is complete.
Thus when thieves came to rob a house, and, having, by threats, induced the owner to open the door, a contest ensued, and in the struggle one of the prisoners discharged a pistol into the house, and, in doing so, his hand was over the threshold, but no other part of his person, “by great advice,” it was adjudged burglary. In another case, where in breaking a window, in order to steal something in the house, the prisoner’s finger went within the house, it was a sufficient entry to constitute burglary. Rex v. Davis, Russ. & Rey, 499. This was decided as late as 1823. These cases are referred to, as examples of the triumph of zeal and ingenuity over common sense. In a population, so dense and corrupt as that of England, such refinement and severity may be necessary. It can-^ not be so here. I am utterly opposed to these constructive burglaries ; and whilst I acknowledge the authority^ of adjudicated cases, and might be constrained even to follow the finger case, I cannot consent to go one step further. While I am not disposed to take one stone from the heap, I am not disposed to add one to it. In my view, the prisoner’s case does not come within any decision, which has fallen under my notice. It is admitted, that, if the felon enter through an open door, he is not guilty of burglary ; because, say the authorities, he has committed no violence in making his entry. It was the folly or neg*473ligence of the owner to leave his door open or unfastened in any way. In this ease, the door of the house was not fastened in the usual way, or in any way, when the prisoner entered. On behalf of the State, it is admitted, that the breaking by the prisoner was not an actual, but a constructive, breaking. The prisoner did unquestionably procure the door to be opened by fraud. To me, however,, it appears to be adding another mesh to the net, to hold, that his entry brought him within the scope of the cases that have gone before. The case states, that, upon the noise, made no doubt by the prisoner, the prosecutor opened the outer door of his house, which had been fastened when he went to bed, in the way described in the case. After opening the door, he was induced to advance to a fence about seventy-five yards off, where he was informed, that his mother’s plantation was on fire. How long this conversation continued, we are not informed. On receiving the information, he returned to the house^ ordered his horse, and dressed himself. He immediately started for his mother’s, leaving the outer door open or unfastened. Some ten or fifteen minutes thereafter, the prisoner entered the house through the unfastened door. This, in law, is not a felonious breaking and entry, and amounts only to a trespass. We have seen, that it is an essential ingredient in the construction of the burglarjq that the security, ordinarily provided by the owner of the. house, shall be violated ; and, according to the authorities, it makes no difference how slight that security may be. And if the entry be made through a window, which is left open, or through a door, which is open, or left unfastened, which is the same thing, no burglary can be committed. It is the negligence of those, to whom the law extends this extreme protection, that strips them of its guardianship, to the extent of taking the life of a human being. In the prisoner’s case, the prosecutor had ample time after returning to the house, to provide fos *474its security, during bis absence ; and those of his family, who were left behind, had ample time after his departure, to secure the door in the way it was usually fastened.
To constitute burglary, where there is no actual, but a constructive, breaking, the entry must be simultaneous with the opening of the door, or follow it so immediately as to preclude the owner from the power of shutting or refastening the door before the entry. I can find no case where this was not the fact in a constructive breaking; and it is right it should be so. The penalty is too high to be exacted in favor of him, who will not take the ordinary care to protect himself. The case has been ably put — suppose the prisoner had, at twelve o’clock the preceding day, informed the prosecutor, that at twelve o’clock the succeeding night, his mother’s house was to be robbed ; and, after night, he had gone to his mother’s leaving the door open, and the prisoner had then entered: would that amount to burglary 1 Suppose in this case, the mother’s plantation had been twenty miles off, and the alarm had been given by the prisoner an hour in the night, and the prosecutor had gone to his mother’s, leaving the door open, and an hour before day the prisoner had entered — could that have been a bur-glarious entry T Suppose again, that Mr. McNatt, after having been induoed, by the fálse representation oí the prisoner, to open the door, had retired to bed, leaving the door open, and the prisoner had then entered — could that be a burglarious entry ? I think it very clear in law it would not in either of the cases supposed. The owner of the house, in each case, would by his negligence have deprived himself of the high protection provided for him, and left the crime to be punished as a misdemeanor. In the last case supposed, it surely was as much his duty to close and fasten his outer door, when he retired to rest the second time, as it was when he retired the first time. It may often prove very difficult to ascertain, what time. *475elapses between the opening of the door, so procured, and the entry of the prisoner ; and still more difficult to fix judicially, when entry is simultaneous with the opening. All I can say is, that, if such a length of time elap-! ses between the acts, as to enable the owner to close and secure his door, no attempt being made by the prisoner^ forcibly to prevent it, the prisoner will not be guilty of a burglarious entry, if the door be open, or not fastened in some way, when he does enter, which is the case here. I do not consider myself as travelling out of the record or the bill of exceptions. In his argument below, which is inserted in his exceptions, the prisoner’s counsel insisted, that, admitting the facts to be as the State claimed them to be, in law the prisoner was not guilty of burglary. It was not necessary he should ask from the Court, more specifically, a charge to that effect. I agree with him. My remarks have been entirely confined to the burglarious part of the charge against the prisoner.
I agree with Judge Peaeson, that there was error in law in the Judge’s charge, and for that error thejudgment must be reversed and a venire de novo awarded.
Whether theré was a breaking of the house by the prisoner, in the eye of the law, depends on the enquiry, whether by fraud he procured it to be opened, to the intent he might enter, and then, availing himself thereof, he did enter, pursuant to the first intent. For if one. finding a house shut and intending to enter it and steal therefrom, instea-d of getting it open by directly forcibly breaking it in his own person, effects his purpose of getting it open by a stratagem or trick on the inmates, whereby he is enabled to enter in the same manner as if he had broken the house from without, that is what is called a constructive breaking. Against its being so held, there is no reason whatever. The meaning is, simply, that, by construction of the law, the accused, *476virtually and in substance did break the house, of which ho effected the opening by such fraudulent contrivances. The definition of burglary cannot mislead us at this day by the use of the term “ breaking,” since the same law which gives that definition, furnishes us also with a definition of “ breaking,” as therein used, which includes both the actual and constructive breakings, which are mentioned in the books. In truth, then, the one kind of breaking is, by the common law, just as effectual to constitute burglary as the other; and, therefore, the only question in such cases is, whether there was a breaking of either kind. There is no doubt in this case as to the falsehood and fraud, by which the prisoner contrived to get the house opened. Therefore the remaining question is only, wheth* cr, at the time of adopting the artifice, the object of the prisoner was by that means to obtain the entrance, which he so soon effected. As to the actual existence of the intent, the enquiry is purely one of fact, and fell to the jury ; and it was properly left to them, if the circumstances, under which the house was opened and the entry made, are such as, in point of law, will allow an intention to enter to be inferred from them. It would seem to be very singular, that it should be held, that such an intention cannot legally be found, when, probably, not one man in ten thousand would have a doubt, in his own mind, that the sole object of the prisoner was to rob the house, and to that end to get it open by the artifice, with which he began his operations. The only fact, on which a difficulty is made on the point, is, that there was an interval of ten or fifteen minutes between the opening of the door and the entry of the prisoner. If the prisoner had forced his way in, as soon as McNatt undid the fastenings of the door, it is admitted, that would be a breaking by construction of law. Why ? Because the entry was so directly connected with the opening of the house, that it was apparently the purpose of the artifice to get the *477house open, and the purpose of getting the house open to gain admittance. But, how far, as a matter of rational inference, is the appearance of those purposes impaired by the lapse of a minute, of two minutes, of five, or fifteen, before the entry be actually made ? It seems to me, in no degree whatever; especially, if it be seen, that, during the interval, the owner of the house was kept in the same state of deception, by which he was induced to open the house, and, by it, is prevented from closing it again. At all events, the force of the inference, and of the delay which tends to rebut it, is for the jury to estimate, according to the conduct of the party throughout and all the attendant circumstances. As indicative of the intent, with which the opening of the house was procured, there is no rule of law or reason requiring that the entry should accompany or immediately follow the opening. It is sufficient, as it appears to me, when the felon gets the house open by fraud, that, by means thereof, he also keeps it open until he can conveniently enter, and he makes an entry so soon after the original opening as to constitute the whole one transaction, and satisfy the jury, that, from the beginning,That was the purpose of getting the house opened. The law does not mean, that the felon must rush into the house in the present moment of its being opened, so as not to afford the slightest opportunity for the owner or any member of his family to close the door. Ifit did, the whole doctrine of fraudulent openings would be at an end. Suppose it to be effected by the abuse of process; that the head of the family is required by an officer to surrender upon a warrant for a felony, and he opens the door, comes out, and places himself in custody; five minutes are spent in the yard in putting the man in irons, and no one of the party enters until the proprietor is bound and secured ; but, as soon as that is done, they proceed to rifle the house. Surely that is not the less burglary, because the man of the house did not call to the inmates, *478as he came out, to shut the door behind him, or because anxiety for him brought his wife and children into the yard, making them forget to secure the house from i’obbers, by locking the door against a company, pretending to act as the officers of the law, and therefore prima facie entitled to confidence. So, if the entry be by conspiracy with an inmate, upon an agreement, that the house shall be opened, and the entry made, at midnight. The man on the inside is punctual to his engagement, but the burglars find that people are still up in the house or neighborhood, and for that reason do not enter then, but do, when things get quiet, an hour afterwards, and commit the robbery. That is not the less burglary, because the owner might have closed the door in the interval. For, he could not be expected to do so, bqing asleep in bed ; and for that reason the law will not deprive his habitation of its protection. If, indeed, the owner in the interval find his door open, and he will not close it, and the felons enter afterwards, that would be a different case; because the omissiqn is not occasioned by the contrivance of the thief, but is the owner’s own fault. But when the owner is in no fault, and the entry is ultimately made by means of the opening obtained through the perfidy of the servant, it is in reason the same thing, whether the entry ■ and the opening be absolutely contemporareous, or the former succeed the latter so soon as to show, that it was its intended consequence. If, too, the opening be by the owner and obtained by artifice, and the owner leave the house open, and, after he have reason to suspect a trick, a subsequent entry would not amount to a breaking. But if the first contrivance, by which the man was led to open his house, still operate to prevent him from closing it, and it was the intent that it should so operate, and an entry be made within a period, which furnished no suspicion of the fraud, it is certainly competent to conclude, and fair, that the entry was the object from the beginning, ar.d *479therefore, that there was a breaking. If not, fraud is purged by its contrivance, and a deceived man is regarded as a negligent one, when the deception is such as would impose on the most wary. A man, for example, calls at another’s gate in the country at midnight, and asks for lodgings as an acquaintance, or as a traveller, who has lost way. The householder, willing to admit one in distress, goes for a servant to take the man’s horse, and at that hour it takes ten minutes to get up a servant, and when the host gets back, he finds his pretended guest has plundered his house and gone. In such a case, no human prudence would have suggested the necessity for locking the door, in order, during the party's absence on the errand, to keep out the man, whom he is about to admit to the hospitalities of his house upon the plea of distress, which turns 6át to be false. Or, suppose in that case, that upoq — tlie housekeeper’s getting to the gate, the stranger falls on him and they make out-cries, which alarm the family, and they, instead of closing the door, run out to afford assistance to the man who is' down, and while they are engaged in examining his wounds, the felon avail himself of the opportunity of entering: is it not fit, that the jury should consider, whether this conduct of the robber was not designed from the first to bring about just the events by which he was able to enter and steal, although the transaction from first to last may have consumed five or fifty minutes or more ? Here, the prisoner fraudulently procured the door to be opened, and then falsely affirmed that the plantation of the prosecutor’s mother was on fire ; and he gave the information, at such a distance and such a direction, as was calculated to warrant the belief, that the informer was hurrying to the fire, whereas he was skulking in the dark, and on the watch to make entry at advantage. How can it be supposed, when he entered as soon as he thought it safe, that such was not his object at first and all along ? It is said, *480it ought to be inferred, because the prisoner could not know, that McNatt would go off and leave his house open, or that his wife would not shut it. Admit that he did not know it; yet he might hope for it, and be willing to take the chances for it, with the intention, should those things so happen, as they did, to avail himself of them, as he did. It was not the fault of McNatt or his family, under the fraud practised on them, not to shut and bar the door against a man, who, as he taught them to think, had gone to another place, and from whom they could have expected nothing but offices of good will. At all events, it was proper for the jury ; and they have found the intention expressly, as I conceive. It is true, the presiding Judge did- not put it to the jury in the identical words, that they should enquire, whether the prisoner made the outcry for the purpose of getting the house opened, with the intent that he might enter. But he did substantially : and it would seem impossible that the jury could have understood the instruction otherwise. The language used to the jury was, that, if the prisoner made the out-cry for the purpose of decoying McNatt out of the house, with the intent &c, and he did enter as stated in the evidence, it would be a breaking ior the purpose of this offence. As McNatt was in the house, and it was fastened inside, could the jury understand, that he was to come out of the house in any other yvay than by opening the house ? It wa3, indeed, added as a further enquiry for the jury, whether the prisoner “ decoyed off” McNatt with the same intent: which, perhaps, was unnecessary and had better have been omitted, as an irrelevant matter. But whether it be or not, can make no difference : for it could work no prejudice to the prisoner, but might have been to his advantage, as the jury, under the instructions, must have thought, that it was necessary they should find the prisoner did both of those acts as indicative of the intent, and therefore would acquit him, unless satisfied as to both. But the *481jury has found the prisoner guilty and therefore the in-tendment is, that they did find both of the acts to have been with the intent supposed ; and if both be, then each is, and the real point of enquiry is answered.
For these reasons, my opinion is that the judgment should be affirmed.
Per CURiam. Ordered that the opinion of the majority of the Court be certified to the Court below, that they may act accordingly.