or day mark, he shall be guilty of a misdemeanor, and punished by fine not to exceed fifty dollars.

Code, s. 3087; 1883, c. 165, s. 3.

Sec. 104 (3546). Buoys, beacons, etc., interfering with.

If any person shall moor any vessel of any kind or name whatsoever, or any raft or any part of a raft, to any buoy, beacon or day mark, placed in the waters of North Carolina by the authority of the United States lighthouse board, or shall in any manner hang on with any vessel or raft, or part of a raft, to any such buoy, beacon or day mark, or shall willfully remove, damage or destroy any such buoy, beacon or day mark, or shall cut down, remove, damage or destroy any beacon erected on land in this state by the authority of the United States lighthouse board, or through unavoidable accident run down, drag from its position or in any way injure any buoy, beacon or day mark, as aforesaid, and shall fail to give notice as soon as practicable of having done so, to the lighthouse inspector of the district in which said buoy, beacon or day mark may be located, or to the collector of the port, or, if in charge of a pilot, to the collector of the port from which he comes, he shall for every such offense be guilty of a misdemeanor and punished by a fine not to exceed two hundred dollars, or imprisoned not to exceed three months, or both, at the discretion of the court.

Code, s. 3085; 1858-9, c. 58, ss. 2, 3; 1883, c. 165, s. 1.

BURGLARY.

Sec. 105 (3331). Burglary in first and second degrees.

There shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwellinghouse, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling-house or sleeping apartment at the time of the commission of said crime, it shall be burglary in the first degree. If the said crime be committed in a dwelling-house or sleeping apartment not actually occupied by any one at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling-house or in any building not a dwelling house, but in which is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of said crime, it shall be burglary in the second degree.

1889, c. 434, s. 1.

DEGREE. The jury are permitted to return a verdict of burglary in the second degree if they deem it proper so to do," making the verdict independent of all evidence, but one charged with burglary in the first degree may be convicted of the second degree if the evidence establishes that grade of the crime. This is in analogy to a verdict of manslaughter on indictment for murder. Fleming, 107-905.

Where the indictment charges the offense as in the old form without alleging that the dwelling-house was in the actual occupation of any one at the time of the commission of the crime, the defendant can not be convicted of burglary in the first degree, but may be convicted of burglary in the second degree. Fleming, 107-905.

BURGLARY IN FIRST DEGREE.-Where the evidence shows that the house in which the crime is committed was actually occupied at the time, a conviction of burglary in the second degree is not authorized, since a felonious entry under such circumstances is made burglary in the first degree by the statute. Johnston, 119-883.

The court could not charge that if "all the evidence was that the family was in the house at the time of the burglarious entry, the defendant would be guilty of burglary in the first degree," because the credibility of such evidence, though uncontradicted, is for the jury. Alston, 113–666.

A conviction of burglary in the first degree is proper where the breaking is into a store-house where there is a bed-room attached, and in which one regularly sleeps, and is sleeping at the time, and there is a breaking and entering into the bed-room. Foster, 129-704.

The store-house in which defendants entered had a bed-room fitted up in it, there being a partition wall between the store-room and the bed-room, and this bed-room was regularly used, and was occupied that night. The clerk, who slept there, left the door between the bed-room and store-room unclosed, but closed all the outer doors and windows of the store. Defendants knocked at the outer door of the store, and pretended to the clerk that they wanted to purchase goods, and when the clerk opened the door about twelve inches they pushed in, covered him with pistols, made him hold up his hands, marched him into his bed-room, and searched him and his room, taking some of his things: Held, that defendants were properly convicted of burglary in the first degree, since the outer door of the store through which defendants broke and entered was the door to the sleeping apartment as it and the other outer doors constituted the protection to the bed-room. Foster, 129-710.

THE INTENT.—Where the breaking and entry is with intent to commit a felony, the prisoner is guilty, though after entering he desists from an attempt to commit the felony through fear or because he is resisted. McDaniel, 60 (Winst. Law), 239.

The fact that the prisoner, after breaking in the house, entered a room where a young lady was sleeping and grasped her ankle, without any attempt at` explanation when she screamed, is some evidence of an entry with intent to commit rape, and is properly submitted to the jury. Boon, 35 (13 Ired.), 244.

The fact that defendant entered the dwelling of the prosecutrix at about 10 p. m., after the inmates had retired, and fled when discovered, is some evidence that he entered with intent to steal. Hayns, 71-79.

The objection that there is no evidence of the intent with which the defendant entered the dwelling must be taken before verdict. Staton, 133643.

Where an intent to commit larceny is relied on an allegation that the breaking was with intent unlawfully, willfully and feloniously to commit the crime of larceny is sufficient. Ellsworth, 130–690.

The intent to commit a felony may appear from antecedent circumstances. McDaniel, 60-249.

WHAT CONSTITUTES A BREAKING.-Where a person entices the owner to leave his house and go to a neighbor's house by giving a false alarm of fire at the neighbor's and the owner leaves his door unfastened and his family neglect to fasten it after his departure, and such person, after about fifteen minutes, enters the house through the unfastened door, without any breaking, with intent to commit a felony, he is not guilty of burglary, since to constitute a constructive breaking by enticing the owner out of his house by fraud and circumvention, the entry must be immediate, or in so short a time that the owner or his family has not opportunity of refastening the door. Ruffin, C. J., dissenting. Henry 31 (9 Ired.), 463.

Defendants went to the storehouse of the prosecutor in which he was sleeping, between 10 and 11 o'clock at night, and, knocking at the door, called his name twice. He answered the call, and told them to wait until he could put on his clothes, which he did and opened the door, when the defendants entered the house and called for meat, and as the prosecutor was in the act of getting the meat he was knocked down by one of the defendants and the store robbed: Held, to be sufficient breaking to constitute burglary. Mordecai, 68-207.

Where the entrance is obtained by a conspiracy with an apprentice living in the house, it is a constructive breaking. Rowe, 98-629.

An entry, at night, through a chimney, into a log cabin, in which the prosecutrix dwelt, and stealing goods therefrom, constitutes burglary, though the chimney, made of logs and sticks, is in a state of decay, and not more than five and a half feet high. Pearson, C. J., dissenting. Willis, 52 (7 Jones), 190.

Upon the trial of an indictment for burglary, the proof tended to show that the felonious entry was made either through a window, the blinds of which were closed but not fastened, or through a door which had been bolted, and the court charged the jury that "in order to constitute a breaking it is not necessary that the inmates of the house should have resorted to locks and bolts. If the blinds and door were held in their position by their own weight, and, in that position, relied upon by the inmates as a security against intrusion, it is a sufficient fastening": Held, to be correct. Fleming, 107-905.

Where a prisoner in the night time knocked at the door of a dwelling, and on being challenged from within, gave his name in a feigned voice as a friend, and thus obtained immediate entrance and committed robbery, he is guilty of burglary. Johnson, 61 (Phil.), 186.

If an entry be effected by coming down the chimney the breaking is burglarious. Boon, 35 (13 Ired.), 246.

Where there is a bed-room regularly occupied in a store, an entrance through one of the outer doors of the store and thence into the bed-room is a breaking into the sleeping apartment of the occupant of the bed-room. Foster, 129-710.

Procuring entrance by fraud in pretending that some lawful object is wanted. and then holding up the occupant of the bed-room with pistols and robbing him and the room, is a burglarious breaking. Foster, 129-710.

The statement of a witness that "the front door had been broken open with a chisel" is not incompetent as an expression of opinion. It is like testimony that a track was made by a horse or a man. Ellsworth, 130— 692.

HOUSE IN WHICH BURGLARY MAY BE COMMITTED.-A log cabin belonging to the owners of a tobacco factory in which the superintendent of the factory usually slept is a dwelling-house of the owners. Jake, 60 (Winst. Law), 80.

SMOKE-HOUSE.-A smoke-house, opening into the yard of a dwelling-house, and used for its ordinary purposes, is in law a dwelling-house in which burglary may be committed. Whit, 49 (4 Jones), 349.

It is not burglary to break and enter a smoke-house thirty-five steps from a dwelling-house, the dwelling-house having no enclosure around it. Jake, 60 (Winst. Law), 80.

STORE. A store in which a clerk has his regular sleeping apartment, although he sleeps there for the sole purpose of protecting the premises, is a dwelling-house of the owner of the store. Outlaw, 72-598.

A store in a room of which a person is employed to sleep solely for the protection of the premises, such person not being a member of the family nor a servant of the prosecutor, is not a dwelling-house. Potts, 75-129.

A storehouse, thirty yards distant from the prosecutor's dwelling-house and within the same enclosure, in which the prosecutor had slept for five months to protect his store and for the convenience of trade, is a dwellinghouse in which burglary can be committed. Mordecai, 68-207.

A storehouse in which a clerk habitually sleeps in a bed-room therein, is a dwelling-house in which burglary may be committed, though the clerk sleeps in there only for the purpose of protecting the property. Williams, 90-724.

A storehouse, 250 yards from the dwelling, to which there is no chimney, and in which there is no bed or bedstead, but in which the owner sometimes sleeps twice a week, and at other times not once in two weeks, is not a dwelling-house. Jenkins, 50 (5 Jones), 430.

It is not burglary to break into a store situate within three feet of a dwelling-house and enclosed in the same yard, since burglary can only be committed in a dwelling-house, or such outbuildings as are necessary to it as a dwelling. Taylor, C. J., dissenting. Langford, 12 (1 Dev.), 253.

Where the clerk sleeps in the store the fact that he does not "board" with the owner is immaterial. Presley, 90-730.

A burglary may be committed in a storehouse twenty-four yards from dwelling-house, and separated from it by a fence, where the storekeeper and servant of the owner frequently slept in the house through the fall. Wilson, 2 (1 Hay.), 242 (279).

Burglary may be committed in a store standing twenty-four yards from the dwelling and separated therefrom by a fence, if the owner or his servants sometimes sleep therein. Wilson, 2 (1 Hay.), 279.

OUTHOUSE.-An outhouse seventeen and a half feet from the dwelling and used with it is within the curtilage. Twitty, 2 (1 Hay.), 102 (118). If an outhouse be so near the dwelling-house that it is used with it, as appurtenant to it, burglary may be committed in it. Twitty, 2 (1 Hay.),

118.

ERROR IN FAVOR OF DEFENDANT.-The defendant can not assign as error an instruction that the jury might, in their discretion, find the defendant guilty of burglary in the second degree, "although the family was in the house at the time of the entry," since he can not except to an error favorable to himself. Alston, 113—666.

CONFESSION. After arresting a person charged with burglary and conveying to the preliminary trial, the officer said to the prisoner: "If you are guilty, I would advise you to make an honest confession. It might be easier for you. It is plain against you." The prisoner answered: "I am not guilty." After the investigation and while being conducted to the jail by the same officer the prisoner made a confession: Held, that such confession was inadmissible as evidence on the trial, since it may have proceeded from the inducement held out to him by the officer when on the way to the magistrate's office. Drake, 113-624.

OTHER BURGLARIES.-It is not competent to show that other burglaries were committed in the same neighborhood about the same time as the one with which defendant is charged was committed. Smarr, 121-669.

OWNERSHIP OF HOUSE, SERVANT.-The indictment charged that defendant entered the dwelling-house of A & B, partners, and the proof was that the house was occupied by A & B who were partners in the jewelry business; that A furnished the house and his personal labor and B furnished the capital, the profits to be divided between them, and that C who was an apprentice of A and a member of his family, was also a clerk to the partnership and slept in the house: Held, that the house was properly described as the dwelling-house of A & B, since C, who slept in the house, was the servant of the firm. Davis, 77-490.

WIFE'S SEPARATE PROPERTY.-An indictment for burglary charging the larceny of a quilt which is the separate property of the wife, may properly charge the quilt to be the property of the husband, since a husband has a special property as bailee in the wife's separate personal estate which is in common use by them. Wincroft, 76-38.

EVIDENCE.-Evidence that the prosecutor discovered in the morning between daylight and sunrise that his house had been broken into, that the house was situated on a public street in a town, and that a box and chair had been so arranged as to form steps which enabled the person breaking to reach the window, is sufficient to be submitted to the jury for them to say whether the breaking and entry were made in the night time. McDonald, 73-346.

Where it is proved that a burglary has been committed by a number of persons, and there is also evidence that the prisoner was present at the commission of the offense, evidence that the prisoner belongs to a band of renegades encamped in the community about the time, is competent, as forming a link in a chain of circumstances connecting him with the crime. Bill, 51 (6 Jones), 34.

It is competent for the state to show acts and conversations of the defendant which tend to fix him with a knowledge of the location of the premises and the condition and circumstances of the prosecutor. Ward, 103-419. The house entered contained only the prosecutrix, her infant and an old colored servant woman, and the bill contained four counts, one charging an intent to steal the goods of the prosecutrix, one the goods of the servant, one to ravish the prosecutrix, and one to ravish the servant. The evidence was that the prisoner, at the dead of night, demanded admittance at the back door, and when questioned as to his identity falsely gave the name of a white citizen in the community; he then went to another door and violently forced it open, exclaiming as he entered: "There is a woman in here; where is she? After I get her, I have got no use for the house nor anything in it." On the trial the prisoner offered no explanation of this declaration, but there was evidence that he was a desperate and dangerous man: Held, that there was evidence sufficient to go to the jury of the intent to ravish the prosecutrix. Powell, 94-965.

Defendant was pursued by armed men, fired at several times and arrested, and in reply to a question then asked confessed the alleged crime of burglary. On the following day the prosecutor and others had an interview with him while he was fettered and in prison, when he told how he broke into the dwelling-house and stole the goods, and what he did with the goods, no threat or promise being made to him: Held, that his confession made on the second day, being presumed to proceed from the influence of the fear excited the day before, was inadmissible, but that what he said on the second day as to his disposition of the stolen property was admissible. Drake, 82-592.