
    THE STATE vs. WESLEY McDANIEL.
    If a man break* ami entera into a dwelling; house by night with intent to commit a felony, the crime <jf burglary is consummated, though after entering the house he desists from an attempt to commit the felony, through fear or because he is resisted.
    The intent to commit a fdony tniy apocar from antecedent circumstances, an 1 if there be a 'broib'-' .-ncry into- the house in the night, the intent so appearing, it is burglary.
    This was an indictment for' burglariously breaking'and entering a dwelling house with intent to commit a rape, tried before French, Judge, at Spring Term, 1864, of Montgomery Superior Court.
    Mary Boyd, the prosecutrix, testified that in the month of August last, about one or two hours before day, she was asleep in the house of her sister-in-law, iu Montgomery County, and was waked'by the noise of some one throwing something against the door and'window ; she got up and found the prisoner at the window, she asked him what he wanted? he answered, “ something good," and got down from the window and went t.o the back door and broke it open, entered the house, struck her violently with a water bucket, placed bis bands across her breast and threw her, down. She resisted as far as she rvas able. A child of her sister, about nine'} ears of age, struck at the prisoner with a stick, and the witness called to him to go to a neighbor’s for help.’ As the child went off, the prisoner got off the person of the witness and left the house. The prisoner did not, when he first laid hands on her, or after he bad thrown her down, attempt to raise her dress:
    One witness testified that the prisoner was between sixteen and seventeen years of age, Another, that he was between eighteen and nineteen. There was other evidence oil the part of' the State in confirmation of the testimony of the prosecutrix. t
    
    The prisoner is a free negro.
    The Court presented to the jury the testimony on the part of the -State, and prisoner, and instructed them on the law, to which instructions no exemption was made.
    The counsel for the prisoner requested the Court to instruct the jury, that although they were satisfied from the evidence that the prisoner broke and entered into the dwelling house in the night time, with' the intent to commit a rape on the prosecutrix, yet if he afterwards desisted on account of the resistance he met with, or through fear or' any othér cause, that the prisoner was not guilty.
    The Court declined to give the instruction, and instructed the jury that i? they, were satisfied from the evidence that the prisoner broke and entered into the dwelling house in the night time, with the intent to commit a rape on the prosecutrix, and afterwards through resistance or fear, abandoned the intent, he was guilty. The counsel for the prisoner excepted. His counsel moved, in arrest of judgment, that the indictment charged an offence at common law, and under the. statute in one and the same Court, which motion was overruled and judgment enteral according to the verdict.
    The indictment is as follows: The jurors for the State upon their oath present .that Wesley McDaniel, being a free negro,- late of the County of Montgomery, hot having the fear of Cod before bis Dyes, &c., on, &c., about the hour of twelve in the night of the same day, with force,• &c., at, &c., the cl welling house of one Adeline Boyd, there situate, feloniously and burglariously did break and enter with intent in and upon onc^Mary Boyd, being a white female in the said dwelling house, then and there being, with force and arms, then and.there violently, forcibly, felo-nioualy and burglariously against her will to ravish and carnally know, contrary to the form o*f the statute in such case.made and provided ; ar>d then and there with force and arms in and upon the said Mary Boyd being a white female as aforesaid, in the peace of G-od and the State, in the said dwelling house, then and there being violently, forcibly, feloniously and burglariously did make ah assaiilt and her, the said Mary Boyd, in the said dwelling house, then and there did beat, wound and ill treat with an intent, her, the said. Mary Boyd, being a white female as aforesaid, violently, forcibly and against her will, then and there, in the said dwelling house, being, feloniously and burglariously to ravish and carnally know, and other wrongs, &c., contrary to the form of the statute, &c.
    
      fFinsiojt, 8>\, for the State.
    No counsel for the prisoner in this Court.
   Maiíly, J.

There appears upon the record but one exception to-the rulings of tho Judge below. After instructions upon tho law of the case not complained of, the Court was asked to inform the jury “that, although they were satisfied from the. evidence tho prisoner hrolce and entered into the dwelling house iu the night timo with the intent to»commit'a rape on the person of the prosecutrix, yet- if he afterwards desisted, on account of the'resistance .ho met ■with,, or through fear or any other canse,' tire prisoner was not guilty,'''

• The Court declined to give the instructions thus asked, but told the jury if they were satisfied from the evidence ■the prisoner broke and entered into the. dwelling house in the night, time, with the intent to commit a rape on-the prosecutrix, and afterwards, through resistance or fear, abandoned the intent, he was guilty. To this exception is taken.

We see no ground for a question either-upon the propriety of refusing the specific instructions asked, or upon the propriety of giving the instructions substituted therefor.

The definition-of a burglar given by Sir Edward Coke is —“He that by night brealceth and entereth into a mansion house with intent to commit a felony.”

A .moments consideration of the elements of this definition will show the groundless nature of this exception. It is apparently based upon the assumption that the felonious intent can only be made evident by its- actual execution, which is a great mistake.

This element of the offence may appear from circumstances happening antecedently to'the act intended, and so appearing (other elements being conceded) the offence is consummated.

This view of the offence is supported by many adjudged cases, and by the uniform practice; and accordingly we find a definition conforming thereto adopted by East Russell and other text writers, viz.: “a breaking and ehtering the mansion house of another in the night with intent to commit some felony within the same, whether such felonious intent be executed or not.”

This meets in all respects the case now before us, and by express words disposes of the prisoner’s exception.

The case informs us there was evidence as to the' intent laid before the jury and proper instructions in relation thereto given by the Court. There is no error, therefore, in the instructions given, and those asked tor were rightfully refused.

We have examined the whole record with the care which its importance demands and find no defector impediment to hinder the due course of the law.

This will he certified to the Superior Court of Montgomery County to the end that it may proceed to pronounce judgment according to law.  