#### 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.