#### 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 bubgílary, tried before Manly, J., at the Fall Term, 185-9, 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.

Battle, J.

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 *191an 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; Rel. 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 *192distinction 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 ánd a half high, is not a burglarious one, in how much better condition and how much higher must it be, before the lav/ will recognise it as a protection against nocturnal invaders? This is a question more easily to be asked, than, to be successfully answered. We are unwilling to undertake the task of answering it, and are content to hold that the chimney, as described in the bill of exceptions, was such an one as could not be entered by a thief in the night time, without committing the crime of burglary.

Pearson, C. J.,

dissentients. It is settled, that to entqr a dwelling-house, by coming down the chimney, is a burglarious breaking. But I cannot concur in the conclusion, that the opening, used in this instance, for the passage of smoke, comes within the application of the principle. It is true, the structure is called a chimney in the statement of the case, but a d'esription is given of it, so as to present the question, is it a chimney, within the meaning of the law, in reference to burglary ? It is also true, that this, like many other questions of law, is attended with difficulty; but it seems to me, that the mode resorted to for its solution, is not the true one : If, to enter a chimney, five feet and half high, be not burglary, how much higher must it be ? — ten, fifteen, or twenty feet ? A good rule works both ways. If, to enter a chimney five and a half feet high, be burglary, how rauch lower may it be ? — four, three, or two feet ?

Upon a consideration of the reason of the law, in respect to chimneys, and calling in aid the analogies furnished by the eases on other points, although no case is found on the point now before us, my conclusion, is, that the opening or structure, or chimney, call it what you please, roust be such a one as may reasonably be relied on for protection against felonies ; which is a question to be decided! by the Court, upon the facts-*193of each case, like ordinary diligence, probable canse, reasonable time, &c.

The law, making it burglary to enter by a chimney, is founded on this reason : the purpose of a chimney, requires that it should be left open, and its construction is usually such, that more effort and daring is necessary to enter in that way, than to force a door or hoist a window. From the cases, this principle may be deduced in respect to burglary : the law will not protect, by capital punishment, when the owner of a dwelling-house is negligent, ór omits to take reasonable care, e. g., if the door be shut, but is left unfastened; State v. King, 9 Ire. Rep. 463. So, if the door of a smoke-house, within the curtilege, be locked, but the key is left in it — so, if a window is left partly open, say, two inches, but not enough to admit a man, and he raises if higher and enters, it is not a burglarions breaking ; Rex v. Smith, 1 Moody, 178. So, if the opening has no sash in it, or the sash is partly gone from decay or otherwise, and one enters through it; because it is the folly of the owner to allow his house to be in this unprotected condition ; 1 Hale, 552.

The purpose of a chimney requires that it should be open, but, as I apprehend, in order to bring it within the principle, the structure must be such a one as may reasonably be relied on for protection ; for, if it be partly rotted down, so as to be no higher than a man’s head, and as easy to enter as a window with the sash out, it must stand on the same footing. The old cases which established the doctrine that an entry by coming down the chimney, is a burglarious breaking, were decided wifli much hesitation, because the hole was open, and although a description of the chimney is not given in any of them, still it is clearly to be inferred, the entrance in that mode was difficult, and that circumstance was taken to counterbalance the fact of its being open. In Rex v. Brice, Russ & Ryan Cr. Cas. 450, it is evident that the chimney was a high one, for it had to be cleaned by a sweep, and the prisoner, who was á chimney-sweep, had been employed to clean it a few days before the night he was apprehended, in the attempt to *194come down through it. In the case now before us, the top part of the chimney, a funnel, had rotted off, and but for the few loose boards that were laid over it, to keep out the rain, (upon which no stress is laid) a smart dog could easily have jumped in and stolen the lady’s meat, and if one or two more rounds had been off, an enterprising old sow could have performed the same feat! I cannot bring my mind to the conviction, that to enter through such a hole, constitutes the crime of burglary, nor am I satisfied, by calling this structure a chimney, and relieving myself from the difficulty of distinguishing between the different kinds of chimneys by saying that “ a chimney is a chimneyfor that seems to me to be sticking in the letter, which we are admonished not to do, even in the construction of statutes, by the maxim, “ qui km.ret in litera kmret m corbiee, and of course it should not be done in making the application of a principle of the common law, which rests on “the reason of the thing.”

Per Curiam,

Judgment affirmed.