State v. Willis
| Decision Date | 31 December 1859 |
| Citation | 52 N.C. 190,7 Jones 190 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. WILLIS, a slave. |
An entry, at night, through a chimney, into a log cabin, in which the prosecutrix dwelt, and stealing goods therein, will constitute burglary, although the chimney, made of logs and sticks, may be in a state of decay, and not more than five and a half feet high. (PEARSON, C. J., dissentiente.)
THIS was an indictment for BURGLARY, tried before MANLY, J., at the Fall Term, 1859, of Chowan Superior Court.
On the trial it appeared that a cabin, the dwelling-house of one Judy Ross, was entered on the night of the 8th of April, 1859, and her meat, consisting of several pieces of bacon, forcibly taken from her. The entry was effected by getting on, and going down the chimney, which appeared to be a structure of logs, or sticks of wood, raised to the height of a man's head, (five feet and a half high,) and covered over at the top with boards, to prevent the rain from falling in and putting out the fire. The boards were removed by the defendant, and his entry then made by descending the chimney into the fire place. It was also in evidence, that the chimney had partially rotted down, and was in a ruinous condition.
The defendant's counsel took the ground, that the entering of the house through an aperture as above described, was not burglary; but his Honor held the contrary, and so instructed the jury. Defendant's counsel excepted.
Verdict, finding the defendant guilty. Judgment and appeal.
Attorney General, for the State .
Wm. A. Moore and Jordan, for the defendant .
Burglary is defined to be “the breaking and entering the dwelling-house of another, in the night time, with intent to commit a felony therein;” Arch. Cr. Pl. 251; 4 Bl. Com. 224; 3 Inst. 63. With regard to that part of the definition, which relates to the breaking and entering, it was held anciently, that if a man entered into the dwelling-house by an open door, in the night, and stole goods therein, it was sufficient to constitute burglary; see Cro. Car. 65, 265; Crompt. 32 a; 27 Assise 38. But it soon after became the settled law, that an entry by an open door or window, or any hole in the wall or roof of the house, was not a burglarious entry; 1 Hale's Pl. Cr. 552; Kel. 67--70. Lord HALE says, that “it was held by MANWOOD, Chief Baron, that if a thief goes down a chimney to steal, this is a breaking and entering; Crompt. fol. 32 b; and hereunto agrees Mr. Dalton, p. 253;” 1 Hale's Pl. Cr. ubi supra. The reason of this, he says, seems to be that the chimney is as much shut as the nature of the thing will admit. All the elementary writers of any note, from that day down to the present, lay down the law in the same way, and assign the same reason for it; see 1 Hawk. Pl. Cr. Book, 1 ch. 17, p. 131; 2 East's Pl. Cr. 485; 3 Chit. Crim. Law, 1106; 2 Rus. on Cr. 3; 4 Bl. Com. 226; Roscoe's Cr. Ev. 256; Archibald's Cr. Pl. 258 a; Wharton's Cr. Law, 1543. The same rule in the year 1821, received the sanction of all the Judges in England; see Rex v. Brice, Russ and Ryan Cr. Cas. 450. The prisoner was convicted of Burglary, for entering, in the night time, the chimney of a dwelling-house, with an intent to steal goods in the house. He was detected and apprehended before he had come down the chimney, lower than a place just above the mantle piece, and the question, whether he had broken and entered the house, was reserved for the opinion of all the Judges. Ten of them, including the three chiefs, held the conviction to be right, and the other two dissented, only because they thought that the prisoner could not be said to have broken and entered the dwelling until he was below the chimney piece. From this, we must necessarily infer that, had he descended below it, these two Judges would have concurred in the propriety of the conviction. So, in this State, it has been held that an entry by a chimney is a burglarious breaking; State v. Boon, 13 Ire. Rep. 246. In all this long and strong array of great authorities, not a word is said about the height, size, or quality of the chimney; and it seems to a majority of the Court, that any attempt to make a distinction between the different kinds of chimneys, will be attended with great difficulty, and lead to much uncertainty and confusion. Where will the dividing line be drawn? If the entry through a chimney in a certain state of decay, and only five feet and a half high, is not a burglarious one, in how much better...
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State v. Allen
... ... at common law, was the breaking and entering of the ... "mansion house," or the dwelling house, of another, ... in the nighttime, with intent to commit a felony therein, ... whether such intent were executed or not. State v ... Langford, 12 N.C. 253; State v. Willis, 52 N.C ... 190; 4 R. C. L. 415; 9 C.J. 1009. It was among the few cases, ... if not the only one, where crime in the highest degree was ... not dependent upon the execution of the felonious intent. The ... purpose of the law was to protect the habitation of men, ... where they repose and ... ...
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State v. Allen
...with intent to commit a felony therein, whether such intent were executed or not. State v. Langford, 12 N. C. 253; State v. Willis, 52 N. C. 190; 4 B. C. L. 415; 9 C. J. 1009. It was among the few cases, if not the only one, where crime in the highest degree was not dependent upon the execu......
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State v. Pigques
...opening and needs protection. It is a part of the dwelling house, and 'is as much shut as the nature of the thing will admit.' State v. Willis, 52 N.C. 190; Vol. 2, Wharton's Criminal Law, 12th Ed., Secs. 982 and 991, pp. 1283 and 1287; and see Donohoo v. State, 36 Ala. 281, and Walker v. S......
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Claiborne v. State
...281, it was held that entering a house by means of a chimney was a sufficient breaking and entering to constitute burglary. In State v. Willis, 52 N. C. 190, it was held that an entry at night through a chimney into a log cabin, and stealing goods therein, constituted burglary, although the......