The opinion of the court was delivered by
Gibson, C. J.As regards the point involved in the motion for a new trial, there is little doubt of the law at the period material tothe question. . “ It is agreed by all,” says Sergeant Hawkins, “ that a house wherein a-man dwells but for a part of the year; or a house which one has hired to live in, and brought part of his goods into it, but has not yet lodged in, may be called his dwelling house, and will sufficiently satisfy the words domus mansionalis in the indictment, whether any person were actually therein or not at the time of the offence.” (Hawk. P. C. B. 1 Ch. 38. § 18.) Otherwise, where the house is under repair, though part of the owner’s goods be deposited in it, for till he take possession with an intent to inhabit, it is not his mansion or dwelling. (Id. § 19.) It is certainly true, that the case referred to by Mr. Leach, the learned editor of Hawkins, is, by no means decisive, and it is also true, as remarked by Mr .East, (Cr. Law, 497,) that the point has since been frequently ruled otherwise. Bnt even the uncorroborated opinion of Sergeant Hawkins, whose Pleas of the Croivn has long been the text book of the profession, would be a safe foundation.for a decision. What is .there to prevent it from *210being used as such here? Assuredly nothing but the determinations of the British courts since- the declaration of our independence, and consequently nothing in, the. shape of precedent to which we are at .liberty to pay respect, were we so disposed, further than it may seem entitled to it, for its intrinsic reason and good sense. Then even were we to lay Hawkins out of view, the case would come to us as one of the first impression. Now, without denying the solidity of the principle, on which the modern English cases were .decided, it is, sufficient-to say, it is inapplicable to' the case of the prisoner. In none of them was the residence of the prosecutor, actual or constructive, in the' house, which was the subject' of the alleged offence, .as it does not appear, that he had abandoned his previous residence elsewhere. Now I readily grant that the law does not extend the privilege of the castle to more than one dwelling in the same place; consequently till the old dwelling be broken up, a new oné cannot be acquired. What was the case here ? In retiring to the country during the hot months, the prosecutor ,was not the less an inhabitant of Philadelphia, which undoubtedly continued 'to be the place of his domicil. He had permanently discontinued his residence in the house previously occupied by him; and unless the house to which he intended to return, and which was in the mean time used as his town house, be taken to .be the place of his permanent residence, he must be considered.as presenting the. strange spectacle of an inhabitant without a habitation. As his domicil, it subjected him to the duties, and entitled him to the privileges and immunities of a citizen, in reference to the ward in which it .was situate, determining in this respect the place of exercising his right of suffrage, or of receiving notice, or a tender, or of transacting any matter, or thing which might involve the question of residence. It was therefore his habitation, and his castle even in the absence ,of the family. Is lodging in the house evidence of habitation, or a constituent part, of it ? If it be the former, its, place may be supplied by any other evidence equally satisfactory; and if it be the latter, it will be difficult to sustain those convictions that have frequently taken, place notwithstanding the temporary absence of the inmates at the time of the offence, as the quality of residence being rendered incomplete by the actual discontinuance of one of its essential parts, would cease as soon as the family had withdrawn. The propriety of those convictions, however, has never been questioned by any man, who made pretension to the character of a lawyer. Originally, no doubt, the principal ground of the offence was the invasion of the family retreat, when the inmates were in a state of repose, and consequently comparatively defenceless ; but it is not the only one; else it would follow, that a house actually uninhabited, would be stript of its peculiar sanctity by the accidental absence of the family; which, every sciolist knows, is not the law. As an authority for this, Sir John Nutbrown’s Case, (Foster, 76,) is in point; and the principiéis asserted in many other cases. Convictions óf burglary, when the family were out of town, and when no person lodged in the house, have been of -every day occurrence in *211courts of Oyer and Terminer here. Why then shall the house of the prosecutor here be less under the protection of the law than if the family had lodged a night in it previous to setting out on their -summer excursion 1 • Many inhabitants of our seaport towns shut up their houses as regularly as the summer comes; and thus leave a considerable mass of property peculiarly exposed to 'depredation, from which it surely cannot be sound policy to withdraw the protection of the law, when it is most needed. At the declaration of our independence, the law would undoubtedly have been held here, as it is laid down by Sergeant Hawkins; and it seem's to me, we ought not to follow the British judges in changing it for reasons of humanity, which have no place here ; especially as their decisions are forbidden by the legislature to be followed as precedents, and when were it otherwise, we would be equally bound to follow them, where they would bear hard'on the prisoner, as theynot ünfrequently would.
The motion in arrest of judgment is founded on the absence of a direct averment, that the breaking and entering was with a felonious intent; and although a larceny is charged to have been committed afterwards, it is argued with much theoretical plausibility, that this may have been in pursuance of a design subsequently hatched. , It is certaiñ, that all material facts must be positively- charged instead, of being collected by inference; but in this particular the indictment is found to be in strict accordance with the most approved precedents, (Cro. Cir. Comp. 203,) and, for that reason, this motion, also, must be overruled.
, The prisoner was sentenced to five years solitary confinement in the Eastern Penitentiary.