This section was intended to embrace all assaults with intent to commit felonies, which assaults are not made with deadly weapons or by any other means or force likely to produce death. Assaults of that description had been provided for in the former part of that title.() As most of the remarks which have been made under that section of the statute are applicable in this place, it will only be necessary to refer to them here.(m) (1) 2 R. S. 665, § 36. Ante, p. 77. (m) Ante, p. 77. CHAPTER IV. Offences against Property, punishable by Xmprisonment in a State Prison. The offences arranged under this title by the revised statutes, are the following: 1. Arson, in the second, third and fourth degrees. 2. Burglary. 3. Forgery and counterfeiting. 4. False personating another, and cheats. 5. Robbery. 6. Embezzlement. 7. Larceny. 1. ARSON IN THE SECOND, THIRD AND FOURTH DEGREES. First. Of arson in the second degree. Arson in the second degree is the wilfully setting fire to, or burning, 1. Any inhabited dwelling house in the day-time, which, if committed in the night, would be arson in the first degree. 2. Any building in the night, not being the subject of arson in the first degree, but adjoining to, or within the curtilage of, any inhabited dwelling house, so that such house shall be endangered by such firing. (a) By the common law and the statutes of this state, previous to the revision of 1830, there was no difference made in the punishment of the crime of arson, whether it was committed in the day or in the night, although there is an obvious distinction as well in the character of the of fence as in the danger to the public. The object of the first section of the statute above referred to, was to establish this distinction. (b) The second section relates to buildings not included in the section of the statute defining arson in the first degree. Arson in the first degree, as we have already seen, (c) consisting only of burning a dwelling house, or other edifice usually occupied by lodgers at night; and ware (a) 2 R. S. 666, § 1, 2. (b) See Rev. Notes. (c) Ante, p. 53. houses, barns, sheds, and other out houses, are expressly excluded, unless joined to, immediately connected with, and a part of a dwelling house. Whereas the second section, now under consideration, relates to the burning of shops, warehouses, or other buildings not the subject of arson in the first degree, but adjoining to a dwelling house. And to constitute arson in the second degree, it is necessary that an inhabited dwelling house should be endangered by the firing. The distinction, in point of atrocity in the offender, and danger to human life, between this of fence and arson in the first degree, seems to be rather shadowy. Indeed the revisers remark, in their note to this section, that nothing but an invincible reluctance to increase the number of capital offences prevented them from putting it in the first class. This section includes the case of a man setting fire to his own house. Arson in the second degree is punishable by imprisonment not less than ten years. (d) Secondly. Of arson in the third degree. This consists in the wilfully setting fire to or burning, 1. In the day time any building which, if committed in the night time, would be arson in the second degree; or 2. In the night time, the house of another, not the subject of arson in the first or second degrees; or any house of public worship or school house; or any public building belonging to the state, or to any county, city, town, or village, or any building in which may be deposited the papers of any public officer; or any barn, or grist mill; or any manufactory of cotton or woollen goods, or both; or paper, iron, or any other fabric; or any fulling mill, ship or vessel; or 3. The wilful burning of any building, ship, or vessel, or any goods, wares, merchandize, or other chattel which shall be at the time insured against loss or damage by fire, with intent to prejudice the insurer, whether the same be the property of the incendiary or not. (e) Arson in the third degree is punishable by imprisonment not less than seven nor more than ten years.(ƒ) Thirdly. Of arson in the fourth degree. Arson in the fourth degree is the wilfully setting fire to or burning, 1. In the day time, any building, ship, or vessel, which, if committed in the night, would be arson in the third degree; or 2. Either in the day or night wilfully setting fire to or burning any saw-mill, carding machine, or building containing the same; any crop of grain in the field, or any nursery or orchard of fruit trees belonging to another; or any fence (d) 2 R. S. 667, § 9, sub. 1. (e) Id. ib. § 3, 4, 5. (f) Id. ib. § 9, sub. 2. around any cultivated field belonging to another; or the woods in any town, not belonging to the incendiary, or any grass or herbage growing, not belonging to him.(g) Arson in the fourth degree is punishable by imprisonment in a state prison not less than two nor more than seven years; or in a county jail not exceeding one year.(h) 2. BURGLARY. Burglary is the breaking and entering the dwelling house of another, in the night time, with intent to commit a crime.(i) In New York burglary is divided by the revised statutes into three degrees. The first degree consists in breaking into and entering in the night time, the dwelling house of another, in which there shall at the time be some human being, with intent to commit some crime therein, either 1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; 2. By breaking in in any other manner, being armed with some dangerous weapon; or with the assistance of one or more confederates, then actually present and assisting ; 3. By unlocking an outer door by means of false keys or by picking the lock thereof.(k) In this definition of burglary in the first degree there are four things to be considered; the manner-the time-the place—and the intent. As to the manner of committing this offence, there must be both a breaking and entry to complete it. And this is also the rule at common law. (1) But they need not both be done at the same time. For if a breach be made on one night and the same breakers enter the next night through the same breach they are burglars.(m) There must be an actual breaking. But this may be done in any of the methods particularly mentioned in the statute; or, in case the burglar is armed with some dangerous weapon, it may be done in any other manner not specified in the statute. It may be effected by the aid and assistance of one or more confederates actually present; and this would extend to the case of a servant belonging to the house assisting the burglar.(n) There are many cases of constructive breaking, which do not seem to come under the statutory definition of burglary in the first degree; to (g) 2 R. S. 667, § 6, 7, 8. 3 Inst. 63. (1) 4 Black. Com. 226. constitute which offence actual force is necessary. These cases will be glanced at hereafter. An entry is requisite, as well as a breaking. To constitute this, however, it is not necessary that the whole body should be introduced. Any, the least entry, either with the whole or any part of the body, hand or foot, or with any instrument or weapon introduced for the purpose of committing a felony, will be sufficient. (o) Thus, where the prisoner, in the night time, cut a hole in the window of the prosecutor's shop, which was part of the dwelling house, and putting his hand through the hole, took out watches, &c. which hung in the shop within his reach, it was holden to be burglary.(p) So if a thief break the window of a house in the night time, with an intent to steal, and puts in a hook or other engine to reach out goods; or puts a pistol in at the window with intent to kill; this is burglary, though his hand be not within the window. (q) And in a case where thieves came in the night to rob A., who perceiving it, opened his door, issued out, and struck one of the thieves with a staff, when another of them perceiving persons in the entry ready to interrupt them, put his pistol within the door, over the threshold, and shot, in such a manner that his hand was over the threshold, but neither his foot nor any part of his body, it was adjudged burglary. (r) It appears, however, that the mere introduction of an instrument, in the act of breaking the house, will not make a sufficient entry; but that the instrument by which the entry is effected must be introduced for the purpose of committing a felony. So that where a thief broke a hole in a house intending to rob the owner, but had not otherwise entered, when the owner, for fear, threw out his money to him, and he went off with it, the better opinion seems to have been that it was not burglary. (s) Introducing the hand between the glass of an outer window and an inner shutter, has been held to be a sufficient entry to constitute burglary. (t) And where, in breaking a window in order to steal something in the house, the prisoner's finger went within the house, it was held that there was a sufficient entry to constitute burglary.(u) The time must be by night. The law has settled what is to be reckoned night and what day, for this purpose. If there be day light enough either begun in the morning, or left in the evening, so as that the features of a man's face may be thereby discerned, it will not come within the first (0) Id. 10. 4 Black. Com. 227. (p) Fost. 207. (9) 3 Inst. 64. 1 Hale's P. C. 555. (r) 2 Russ. on Cr. 10. |