Ex parte Vincent

GOLDTHWAITE, J.

— The building broken into was a house of two stories, in which one Adler kept goods for sale. The house below was divided into two rooms, communicating by a door in the partition which divided them. The goods were in the front room, which was used for carrying on the business, and the back room contained a few boxes of shoes, and at and before the time of the breaking was used as a sleeping room by Adler. The second- story was slept in by the clerks of the store, and the proof was, that they were all single men, and took their meals at a hotel in town, except on Sunday, when their breakfasts were usually sent to them; and that their washing was done away from the house. The only question upon these facts is, whether the house was a dwelling-house within the meaning of section 3308 of the Code.

At the common law, any house was a dwelling or mansion, in a burglarious sense, in which any person resided,, or dwelt; and with reference to the offence which could only be committed in the night, we think the true test is, whether it was permanently used by the occupier, or any member of his family, as a place to sleep in. Thus, if neither the owner, nor any member of his family, slept in the house, it is not his dwelling-house, though he had psed it for his meals and all the purposes of Ms business.—Rex v. Martin, R. & R. 108. So burglary may be committed in a lodging room (1 Leach 89) ; or in a garret used for a workshop and rented together with an apartment for sleeping (1 Leach 237)- So to break and enter a shop not parcel of the mansion house, in which the shop-keeper never lodges, but only works or trades there in the day-time, is not burglary, but only larceny; but if he, or his servant, usually or often lodge in the house at night, it is then a mansion house in which burglary can be committed.—1 Hale P. C. 557-8. Indeed, it is obvious that there-could, in general, be no other tests than the one we have mentioned as to single persons, as they could not properly be said to live or dwell in any house in which they did not sleep; and if the house which was permanently used by them for that purpose was not their dwellingdiouse, they could have none. We have no doubt, that at the common law, upon the facts as stated, the building must be regarded as the dwelling-house of Adler.

But it is said, that the term dwelling-house, in section 3308 of the Code, is not used in the same sense in which that term is uspd at the common law with reference to the offence of burglary. It must be remembered that, at the common law,. the crime of breaking into a dwelling-house in the night-time, with the intent to steal or commit a felony, was called burglary (2 East’s P. C. 492-3) ; and in view of the mischief to which the crime relates, we have seen that the^term “ dwelling-house” received a technical signification, differing in' some respects from its popular meaning. By the old law (Clay’s Dig. 472, § 4), this offence, when committed by a slave; was punished with death. By the Code (§ 3308) it is provided, that 11 every slave who breaks into and enters a dwelling-house in the night, with the intention to steal or commit a felony, must on conviction suffer death” ; and by the following section- (3309), that “ no building must be deemed:a' dwelling-house, or any part thereof, unless some white person is in such house at the time the act is done, or the offence committed ; and no building which is not joined to and parcel of such dwelling-house must be considered as included in the preceding section.”

If section 3308 stood alone, we should give to the term precisely the same meaning which it bears in burglary prope-r, for the reason, that the statutory offence would differ in no material respect from the common-law crime. The same words are used that are found in the definition of burglary as given by the text-books ; and when words are used by the Legislature in relation to a matter or subject which, when used in reference to the same subject at the common law, have obtained a fixed and definite meaning, the inference, we think, is irresistible, that they were intended to be used in their common-law sense. It would be a strange thing, if the legal sense of “ breaking into a dwelling-house in the night-time”, meant one thing by the statute, and another by the common law.

If we had, however, any doubt upon the question, it would be dispelled by section 3309. At the common law, not only the dwelling-house- proper, but all other buildings within the curtilage, or some common fence, were deemed part thereof (2 East’s P. 0. 492-3) : and consequently a barn, stable, kitchen, or smoke-house, although separated from the main building, might be part of the dwelling-house within the meaning of burglary. But it is evident that neither of these buildings would, in such case, be a dwelling-house in the popular acceptation of that term ; and on the supposition that it was used in that sense in the preceding section, why should the Legislature say it should not apply to certain cases to which it could not apply if used in its popular sense only ? The meaning of the two -sections, taken together, is obvious. The old law, which punished capitally every case of burglary when committed-by a slave, was regarded as too severe, and, in order to soften its rigor, the meaning of the dwelling-house tinder the former law was narrowed. It was required that there should be a white person in the house at the time when the act was committed, and also that the building must be actually joined to and parcel of the dwelling-house. Subject to these qualifications, we must construe the term referred to in section 3308 as meaning the same as that term in burglary at the common law.

Motion refused.

Rios, J., not sitting.