
    Solomon Ducher v. The State.
    In an indictment for burglary, it is sufficient to lay the ownership of the house in a married woman who lives apart from her husband, and has the occupancy and control of the dwelling. '
    Proof of a constructive breaking at common law, is sufficient to warrant a conviction under our statute, which provides against a forcible breaking and entering.
    This is a writ of error to the Court of Common Pleas of Pickaway countj.
    
    
      At the July term, A. D. 1848, of said court, Solomon Ducher was indicted and tried under the 14th section of the act for the punishment of crimes, for breaking and entering the dwelling house of one Sarah Bowen, in the night season, with intent to steal, etc.
    The prisoner was convicted and sentenced to the penitentiary for seven years.
    A motion for a new trial was made, but was overruled by the court, and the case comes here upon a bill of exceptions, which fully exhibits the testimony.
    It appears that said Sarah Bowen was in possession of said dwelling house as dower in the estate of her deceased husband. That her son,'John Oulery, was living with her in the house. That on the night mentioned in the indictment, they were awak ened by some one knocking at the door, in answer to which John said “ come in.” , The persons outside pulled the latch-string without being able to open the door, when they stated that they could not come in. John then got up and opened the door, when two men walked into the house. After they had entered, one of them nearly closed the door and stood by it, the other stated they had a warrant for John Oulery from the prosecuting attorney of Pickaway county. John asked for time to put on his clothes, and after he had done so one of the men told him that they wanted his money, and asked for his mother’s money. John said it was in a chest. They told her to get the key, which she did. They tried to open the chest where John told them her money was, and being unable to do so, with threats of violence induced her to do it, and then took from the chest the money described in the indictment, to wit, fifty-nine dollars in gold and silver.
    It appears that the door could not be opened by pulling the latch-string, without raising it up.
    It further appeared, that, about one year previous to this transaction, the said Sarah had intermarried with a man by the name of Andrews; that they lived together as man and wife for about two or three weeks, and that said Andrews was still living. The state introduced evidence tending to show, that defendant was one of the persons who entered said dwelling-house, as aforesaid, and to show that said Sarah was generally known by the name of Sarah Bowen, at the time the offense was committed.
    The attorney for the state also offered in evidence the record of a conviction of said Andrews for bigamy, in order to show that Said marriage with said Sarah was illegal and void, to which counsel for defendant objected; but the objection was overruled by the court, and the record admitted in evidence.
    
      J¥. JET. Swayne, for plaintiff in error.
    The record shows the following errors:
    I. The court erred in refusing a new trial. The defendant was not guilty of burglary. In this respect, the verdict is contrary to the evidence.
    The offense, under our statute, cannot be committed, without some degree of force in entering. The statute contains the word “forcibly.” Swan’s Stat. 222.
    In this respect, our statute differs from the English statute. Archbold 281.
    Neither the English statute, nor the forms of indictments framed upon it, contain this term. Archbold, Ibid.
    An indictment so framed, under our statute, would not be good.
    
      II. The ownership of the house should have been laid in the husband. The rule upon this subject is inflexible. Arch-bold 287; Roscoe 319.
    In this particular, also, the verdict is contrary to the evidence.
    III. The court erred in admitting evidence offered to prove that the marriage of the prosecutrix was “ illegal and void.”
    IY. If the record had shown that Andrews was convicted of bigamy for marrying Sarah Bowen, still, the testimony would not have been competent or admissible.
    The second marriage, in such cases, is not void, but voidable. The statute of divorces makes the prior marriage a ground of divorce, as respects the second marriage, and makes the children of the second marriage legitimate. Swan’s Stat. 291.
    In this view, also, the testimony objected to wras improperly admitted, and the verdict was contrary to the evidence, and a new trial should have been granted.
    
      Henry Stanbery, (attorney general,) for defendant.
    I. It is argued, for the plaintiff in error, that actual force is necessary to constitute the crime of burglary, under our statute. I do not think that the use of the word forcibly, in our statute, was intended to change the settled definition of this offense, as known and understood at the common law. To constitute a burglary, a breaking was always necessary; in order to which, some degree of force is essential, either actual or constructive.
    The sort of breaking, required at the common law, was something more than a mere breach of the close, as in trespass ; for if the entry were effected through an open door or window, such an entry, though a breach of the close sufficient to constitute a trespass, would not amount to a burglary. Some degree of force was always required at the common law, such as raising a latch, pushing up a window, etc.; and the only exception to this requirement of actual violence is, in the case of an entry by a chimney; and this exception was founded on necessity, as a chimney is always left open. Whilst, however, actual violence, or the forcible removal of some fastening, was essential at common law, it has frequently been held, that this force or removal of the fastening may be, constructively, the act of the party making the entry, though in point of fact, exerted by an innocent person within the house. The law is well stated in 2 East’s Crim. Law, 485, as follows:
    “ Thieves, having an intent to rob, raised the hue and cry, and brought the constable, to whom the owner opened the door; and when they came in, they bound the constable, and robbed the owner — held burglary. So, if the admission be gained under pretense of business, or, if one take lodgings with a felonious intent, and afterwards rob the landlord; for the entrance was gained by fraud, and the law will not endure to have its justice defrauded by such evasions. By the same reasoning, getting possession of a dwelling house by a judgment against the casual ejector, obtained by false affidavits, without any color of title, and then rifling the house, was ruled to be within the statute against breaking the house and stealing goods therein.”
    So, too, in Archbold’s Crim. Pleadings, 258, (a,) it is said:
    “ A constructive breaking is, where the offender, with intent to commit a felony, obtains admission by some artifice or trick, for the purpose of effecting it. As, for instance, if a man knock at a door, and, upon its being opened, rush in with a felonious intent,” etc.
    The evidence shows that, in the case at bar, the defendant came to the house with a felonious intent; that is, to rob the inmates. He found the door closed, and attempted to effect an entrance by the use of force directly, in raising the fastening. Not succeeding in this, he resorted to the artifice of obtaining admission as a visitor, or a person on business, by knocking for admission. Force, then, was exerted, by the boy within the house, to remove the fastening; and in this way an entrance was effected, and the robbery at once committed. This was a clear case of constructive force, and the removal of the fasten ing, by the boy, is to be considered as the act of the defendant
    
      II. The remaining points, made by the counsel for the plaintiff in error, may be considered under one head.
    The indictment lays the burglary to have been committed in “ the dwelling house of Sarah Bowen.” It is contended that it appears from the testimony that, although the house was then in the exclusive occupancy of Sarah Bowen, yet, as it was proved that she was married to one Andrews, about a year before the burglary,-and that he was then living, the locus in quo should have been described as the dwelling house of Andrews.
    If this were the only proof as to the possession of or right to this house, a question of some importance would arise upon the particular phraseology of our statute, in which a clear distinction is made from the common law definition, in this very particular.
    It must be the dwelling house of another, according to the common law; whereas, under our statute, it is “ any dwelling house” without reference to ownership. It would seem that, under our statute, the question of title or actual ownership is no way material; and that, instead of following the English rule as to proof of ownership in burglary, it would be more reasonable to adopt the English rule in arson. The distinction as to the proof of ownership or mere possession, between the breaking into a dwelling house and burning of a dwelling house, is referred to in 2 East’s Cro. Law 499. It is there said, that “it is necessary to ascertain to whom the mansion belongs, and to state that with accuracy in the indictment; and here it is to be lamented, that the same rule does not prevail in this ■case (burglary) as in arson, which is considered as an offense .against the actual possessor, by whatever title he may hold the possession.”
    As our courts are not bound by the rule adopted in England .as to burglary, and as, in truth, the offense of burglary is just as much against the person in actual possession, as that of arson, and especially as our statute makes no' reference to the ownership, I do not see that anything beyond actual possession need be shown. That proof identifies the house much more distinctly than any other evidence of title.
    But if the court should incline to follow the English decisions, and hold that a dwelling house, in the possession of a wife, living apart from her husband, must be laid to be the dwelling house of the husband, then it will be proper to look to the further proof made in the case.
    It appears, from the bill of exceptions, that the house in which the burglary was committed, had been set off to the person named in the indictment, Sarah Bowen, as her dower in the estate of a former husband, and was in her exclusive possession, at the time of the offense. It was further proved by said Sarah and her son, on cross-examination by defendant, that she had intermarried with a man by the name of Andrews, about a year before the commission of the offense, and that they had lived together for two or three weeks after the marriage." To prove this marriage a nullity, the state then introduced the record of the conviction of George Andrews for bigamy, in marrying one Mary Boen, he having, at the time, a former wife then living; and it was also proved, that “ said Sarah was generally known by the name of Sarah Bowen, at the time of the commission of the offense.”
    The admission of the record was objected to, and the objection overruled.
    The counsel for plaintiff in error claims that this record was improperly admitted, on two grounds:
    1. That there was no sufficient proof of identity, to show that Sarah Bowen was the same person as Mary Boen, named in the record of conviction. Certainly, without some proof of identity, the jury could not have found the fact, nor would the court have admitted the record; and we are to presume that such proof was made.
    The rule, in such a case, is not to intend that the item ex- • cepted to was all the evidence offered.
    2. The next objection made to this record is, that proof of a former marriage, and that the first wife was living at the date of the second marriage, does not show the second marriage to be void, but only voidable.
    This is certainly a new doctrine. The second marriage is a mere nullity. 1 East’s Oro. Law, title Polygamy, 466. Undoubtedly the party injured may ask for a decree of divorce, under such circumstances; but that is for convenience in the establishment of the fact, and to furnish the best evidence of the fact.
    As to the admissibility of the record of conviction, to establish the fact of a former marriage, and the nullity of the second marriage.
    For this purpose, it would seem that the record was admissible, although between other parties.
    The general doctrine is thus stated in 1 Stark. Ev. 281:
    “ The record of a judgment in a criminal case, as in all other cases, is, in general, conclusive evidence of the fact of the conviction and judgment; and, as to all legal consequences resulting from it, a judgment in a criminal proceeding is in the nature of a judgment in rem: such a judgment, standing unreversed, is, with some exceptions, conclusive evidence as to all its consequences.”
    The question, incidentally made at bar, was, whether Sarah Bowen was, at the time, a married woman. The defendant proved her marriage, about a year previous, to one Andrews. To show that this marriage was invalid, the state then offered the record of Andrews’s conviction of bigamy, establishing the fact that he had a former wife, living at the date of this second marriage; the legal consequence of which was, to show that the second marriage was a nullity.
    Suppose, instead of a conviction for bigamy, the state had produced a decree for divorce, dissolving the second marriage. That, certainly, would have been good evidence as to the question, whether the prosecutrix was a married woman, at the time of the burglary; and yet it would be between other parties.
    
      But the very point as to the admissibility of a record of conviction in bigamy, is established by a decided case — in which it was held as prima fade evidence inter alios. The quotation in Shelford on Marriage and Divorce, 31 Law Library 190, top paging, (231 in margin,) is as follows:
    “ Sir Jno. Nichol said that, generally speaking, however, he apprehended the rule to be that a record of conviction is evidence of the same fact in a civil case, only that it is not conclusive evidence. This is the rule to be collected from the following case, as cited by Chief Baron Gilbert. If a man has-two wives, and be therefore convicted, and dies, and the second wife claims dower, the verdict and conviction cannot be given (i. e. conclusively given) in evidence; but in this case the writ must go to the bishop — for whether the marriage be lawful or not is the point in controversy, and that is of ecclesiastical jurisdiction, and is not to be decided at Com. Law. But the verdict may be made an exhibit in the cause before the bishop, to induce him to believe there was a former marriage.”
    See also Boyle v. Boyle, 3 Mod. Rep. 164, that a conviction for bigamy is conclusive evidence of the fact against the defendant in another case.
   Spalding, J.

It is contended that the court erred in refusing to grant a new trial, and this being assigned for error, the following points are taken, to wit:

First. The ownership of the house should have been laid in the husband, Andrews.

Second. The court should have rejected the record when offered, to prove that Andrews had been convicted of bigamy.

Third. The defendant was not .proved guilty of burglary under our statute.

Upon due consideration, we are all of opinion that some of the common law rules in respect to the ownership of the dwelling house, in which a burglary has been committed, have little else than their age to recommed them, and may well be dispensed with under our statute.

Burglary, at common law, is the breaking and entering the dwelling house of another, in the night, with intent to commit some felony within the same.

By our statute, it is the breaking and entering into any 'dwell ing house in the night season, with intent, etc.

At common law, if a house be tenanted by a married woman, it must, in all cases, be deemed the house of her husband and not of herself, even although she live separate from her husband.

Under our statute, if it be necessary to aver an ownership at all, we adopt the more simple rule that the person in the visible occupancy and control of the premises, at the time of the burglary, may be set out in the indictment as the owner, whether that person be a tenant of the freehold for years, at will, or by sufferance; and that a feme covert, living apart from her husband, may, for this purpose, be treated as a feme sole.

It appears in the case before us, that Sarah Bowen having a life estate in the premises, was in the exclusive possession and control of the dwelling house in which the burglary is alleged to have been committed ; and, although the marriage ceremony had been performed, and she had lived about three weeks with Andrews as his wife, for nearly a year anterior to the commission of the offense, she had, for some reason, lived by herself and been designated by no other name than that of her deceased husband.

The ownership of the dwelling house, under such circumstances, is well enough laid in “ Sarah Bowen.”

The decision of this question in this manner necessarily disposes of the second point taken by council, for the record evidence was only material if the marriage contract vitiated the indictment.

We have decided that it did not, and now pass on to the more important inquiry whether the proof showed the defendant guilty of burglary under the statute.

It is conceded that our statute contains the word forcibly,” which is in addition to the words “ break and enter,” as known to the common law. “ If any person shall in the night season, willfully, maliciously, and forcibly break and enter into any dwelling house,” etc.

It is insisted, and with much plausibility, that, under this statute, the -offense of burglary cannot be committed without some actual force exerted in entering the house.

But, if this be so, how is the degree of force which it is supposed necessary to exert, to be measured ? It surely will not be exacted that a door shall be broken down or a window smashed in pieces.

Undoubtedly, it will be conceded that the degree of force recognized by the common law, will answer the purpose; as raising the latch, or the pushing open of a massive door which is kept shut by its own weight. In these and many like instances, the law, out of pure regard to the sanctity of every man’s castle, construes an entrance, with a felonious intent, and. in the night season, to be a burglarious breaking and entering.

And there can be no breaking without the application of force, actual or constructive.

If, at common law, force was always implied in breaking into a house, how is the offense changed by the statute, which superadds the word “ forcibly ” as a qualifying term ?

For ages it has been considered that the most dangerous sort of burglars were those who would seek to gain an entrance into one’s mansion, not by violence, for that might be resisted, but by art, cunning and circumvention.

It has been wisely ruled, therefore, that “ to knock at the door, and upon opening it, to rush in with a felonious intent, was burglarious, though there was no actual breaking; for the-law will not suffer itself to be trifled with by such evasions.” 4 Blackstone’s Com. 226. Whether the offender gain an entrance by open violence or by deceiving the inmates and knocking at the door after the manner of a peacable citizen, if the intent be felonious, the law implies a forcible breaking of the barriers erected for the security of the dwelling.

A majority of the court are of opinion, that the same rules of 'Construction apply to the offense of burglary under our statute as at common law, and that the defendant was rightly convicted.

Judgment affirmed.

Caldwell, J., dissented as to the second point decided, holding that to constitute burglary under the statute, some degree •of violence must be used in effecting an entry.  