There is no statute in North Carolina changing the common law definition of burglary, which is: The breaking and entering of the dwelling house of another in the night time, with intent to commit a felony therein. The question in this case is, was the house into which the prisoner broke and entered the dwelling *Page 106 house of the presecutor [prosecutor] Davis? The house belonged to Davis and was used as a store; a small space was partitioned off from the storeroom for a bedroom, and it has been occupied as such regularly for about four years, either by Davis, or by some clerk, or other person by his license. It was slept in on the night of the breaking, and had been on every night for a month before that night, by one Lamb who was employed by Davis to sleep there for the purpose of protecting the premises. Lamb was not a member of the family of Davis, nor employed by him otherwise than as stated.
The Attorney-General relies on S. v. Outlaw, 72 N.C. 598. That case can only be distinguished from the present by the fact that Harris (the person who slept in Cunningham's store) was a clerk of Cunningham and boarded in his family. It was in evidence that he (131) slept in the store for the protection of the premises. We do not doubt the decision in that case. The differences between that case and the present may seem very slight, yet if they be such as are recognized by the authorities from which we derive the law on this subject, we are bound to recognize them as distinguishing the two cases. Considering the various ways in which houses may be occupied, it is not the fault of the law if the line of separation is thin, or even artificial. The following quotations are all from 2 East P. C., 497, 498. It is clear that if no person sleeps in a house it is not burglary to break in it. Hallard'scase. In Brown's case all the judges agreed that the fact of a servant having slept in a barn the night it was broken open, and for several nights before, being put there for the purpose of watching against theives [thieves], made no sort of difference in the question whether burglary or not. So a porter lying in a warehouse to watch goods, which is only for aparticular purpose, does not make it a dwelling house.
In Fuller's case, the house, which was a new one, was finished except the painting and glazing, and a workman employed by the owner slept in it for the purpose of protection; but no part of the owner's family had taken possession of it: Held, not a dwelling house.
In Harris's case, it appeared that the prosecutor had lately taken the house, and on the night of the offense, and for six nights before, had procured two hair dressers, none of his own family, to sleep there for the purpose of taking care of his goods and merchandise therein deposited; but he himself had never slept there, nor any of his family: Held, not a dwelling.
In Davis's case, one Pearce owned the house, but resided at a distant place. It was not inhabited in the daytime, but a servant of the owner slept there constantly for about three weeks, solely for the (132) purpose of protecting the furniture till a tenant could be procured. Held, not a dwelling house. *Page 107
It seems, from these cases, that if part of a storehouse communicating with the part used as a store, be slept in habitually by the owner, or by one of his family, although he sleeps there to protect the premises, it is his dwelling house. If the person who sleeps there is not the owner or one of his family or servants, but is employed to sleep there solely for the purpose of protecting the premises, he is only a watchman, and the store is not a dwelling house.
The distinction is not altogether arbitrary or without reason. To break in a house where the proprietor or any of his family sleep is apparently a more heinous offense and calculated to produce greater apprehension and alarm than to break into a house occupied primarily for business, although a watchman is employed to sleep there. It is competent for the Legislature to punish the latter offense in any manner otherwise than capital that it may think proper. I have not seen that by the legislation of any State such an offense is capital, as it would be in this State if held to be burglary. In New York it is burglary by statute, but it is punishable only by imprisonment in the penitentiary.
As our opinion on this question entitles the prisoner to a new trial, it is unnecessary to consider the other questions raised on the record.
There is
PER CURIAM. Error.
Cited: S. v. Pressley, 90 N.C. 733.
Dist. S. v. Williams, 90 N.C. 728.
(133)