This is an appeal from a conviction for burglary, the questions presented being, first, was the entry complete, and secondly, was there sufficient evidence of the intentention of appellant to commit a theft The’ evidence is to the effect that about four o’clock in the morning, appellant had raised the window in the dwelling of an aged lady, and was holding it up with his hand in such a way that his fingers were within the house, his elbow resting on the sill of' the window, and his body outside of the house, when some of the inmates hearing the noise and approaching, he suddenly dropped the window and fled. The house contained “ property of “ value,” and it was testified that there was no enmity.existing between appellant and any of the family. On being arrested next morning, appellant denied that it was he, and on the trial an effort was made to establish an alibi; but the evidence appears sufficient to justify the jury in finding that he was the man who was detected at the window.
The following are Articles of the Code (Paschal’s Digest):
Article 2359. The offense of burglary is constituted by entering a house by force, threats or fraud, at night,' or in like manner, by entering.a house during the day, and remaining concealed therein until night, with the intent in either case of committing a felony.
Article 2360. lie is also guilty of burglary, who, with intent to commit a felony by breaking, enters a house in the day-time,
Article 2361. The entry into a house within the meaning of Article 2359, includes any kind of entry but one made by the free consent of the occupant, or of one authorized to give such consent; it is not necessary that that there should be any actual breaking to constitute the offense of burglary, except when the entry is made in the day-time.
Article 2362. The entry is not confined to the entrance of *280the whole body; it may consist of the entry of any part for the purpose of committing a felony; or it may be constituted by the discharge of fire-arms, or other deadly missiles, into the house, with the intent to injure any person therein ; or it may be constituted by the introduction of any instrument for the purpose of taking from the house any personal property, although no part of the body of the offender should be introduced.
Article 2363. By the term breaking, as used in Article 2360, “ is meant that the entry must be made with actual force. The slightest force, however, is sufficient to constitute breaking ; it may be by lifting the latch of the door that is shut, by raising a window, the entry at a chimney, or other unusual place, the introduction of the hand, or any instrument to draw out the property through an aperture made for that purpose.”
In “ common language,” we do not say that one has entered a house, who has merely, in the act of raising a window from without a building andg holding it up with his hand, placed his fingers in the inner side of the window, and therefore within the house. But the Code says: “ The entry is not confined to the “ entrance of the whole body.” In the opinion of a majority of my brethren, this extends the meaning of the word as used in the definition of burglary, so as to embrace a case like the present, where only the fingers were actually within the house. According to the common law authorities such an act would be an entry sufficient to constitute burglary. (See Rex v. Davis, Russell & Byan, 499; Rex v. Briley, Id., 341.)
It is contended for appellant, that the clause immediately following the one just quoted, reading thus : “ It may consist “ of the entry of any part for the purpose of committing a “felony,” qualifies what precedes it, so that the entry of a* small part of the body is not a complete entry, unless it be intended by that act or agency to commit the felony. The court holds this to be only an example, one case in which the entry of less than the whole body, viz., “ any part,” completes the *281act, the general design being to commit a felony, and that the effect of the whole is to make the entrance of any part of the body, however small, an entry within its meaning—provided always that the intention be to commit a felony.
As to the second question, the fact that the house was broken and entered at the time and in the way it was, by one who fails to show any excuse, that there was valuable property there to be taken, and no other known desired object, are sufficient to support the finding of the jury that the intent was to steal. Eoscoe says, the intent of the parties will be gathered from all the circumstances of the ease. Three persons attacked a house. They broke a window in front of the clock.. They put a crowbar and a knife through a window, but the owner resisting them, they went away. Being indicted for burglary with intent to commit a larceny, it was contested that there was no evidence of that intent; Mr. Parke, J., said that it was for the jury to say whether the prisoner went with intent alleged, or not; that persons do not in general go to houses to commit; trespass in the middle of the night; that it is matter of allevia-' tion that they had the opportunity but did not commit the larceny, and he left it to the jury to say whether, from all the circumstances, they could infer that or any other intent. (Roscoe on Ev., p. 367, ref. to 1 Levin, C. C. 37.) The case referred to is not accessible, but Archbold, in a note, refers to it and cites it in the same words. That author says, even the very fact of breaking and entering in the night-time, raises a presumption that it is done with the intent of stealing. Numerous cases might be cited where convictions appear to have been had and sustained without further evidence. (See Rex v. Price, R. and R., 450; Rex v. John Smith, Id., 416. See also Wharton, Am. Cr. Law, Section 1600.) Where under such evidence as there is in this case a jury have found that the intent of the party was to commit theft, the verdict will not be set aside as unsupported.
The judgment is affirmed.