
    The People v. Michael Nolan, William Rogers and Peter Nicaise.
    
      Burglary: Breaking through area grating: Not adjoining a dwelling house. The removal of an iron grating, covering an area opposite a cellar window, is as clearly a breaking witbin the meaning of § 5756 Comp. Laws, as the opening of tbe window would be, or any outer door.
    A store and cellar underneath, leased and occupied separately from other tenements used as dwellings, in the same building, and having an outside entrance distinct from all other such tenements, and in no way used with them. — the lessee and occupant residing in another part of the city, — is “not adjoining to or occupied with a dwelling-house” within the meaning of § 5756 Comp. Laws.
    
    
      Heard January 5.
    
    
      Decided January 10.
    
    Exceptions certified from the Recorder’s Court of Detroit.
    Michael Nolan, William Rogers and Peter Nicaise were charged on the information of the prosecuting attorney of the county of Wayne, that they “on the 17th day of May, in the year of our Lord one thousand eight' hundred and seventy, at the said city of Detroit, at about the hour of eleven o’clock in the night time of the same day, with force and arms, the store and shop not adjoining to or occupied with a dwelling house of Robert Murray, did break and enter with intent the goods and chattels of said Robert Murray, in the said store and shop then and there being found, then and there feloniously to steal, take and carry away, and then and there in said store and shop, two dollars in money of the value of two dollars, of the goods and chattels of said Bobert Murray, in said store and shop then and there being found, then and there feloniously did steal, take and carry away,” etc. •
    On the trial evidence was offered to show that one Murray had a store and cellar in the building, on the southeast corner of Larned and Beaubien streets, in the city of Detroit, with outside entrance on each street; beneath store was a cellar which was entered from store through a trap door, and said trap door on night in question was fastened from within the store by a hook, and over it was placed oil cans, boxes, etc.; outside said cellar was an area with iron grating, as usual, which was closed; there was an entrance from said area into the cellar through a window which was not shown to be shut on this night; said cellar had not been used by Murray for storage purposes for some time previous, and he relied for safety of goods in his store against entrance in that direction on the fastenings of the trap door; that Nicholas Kern owned the building, and rented the store and cellar in question to Murray, and that Kern lived over and occupied the upper story over the store with his family; that there was an entrance to the family residence by a stairway in the hall next the store, there being an entrance to the hall by a door opening on Larned street; that there was a door also in said hall opening into the store which had formerly been used by Kern’s family' as a passage way into the store, but at this time was closed by being bolted on both sides; beneath said hall was a cellar, used and. occupied by Kern’s family, which was separated from cellar under store occupied by Murray by brick partition, through' which was a door communicating between the two cellars; the' cellar’ under the hall, the hall and the two upper stories aboye the store were ' occupied • by-Kern exclusively; the store and cellar under it were occupied by Murray exclusively, he having his residence iu another part of the city; the Qnly entrance to the store was by the outside doors, the door in the hall and the trap door above mentioned; there were also two tenements tinder the same roof and in the same building occupied by lessees of Kern,-but having no communication with the store of-Murray. The evidence further tended to show that on the night of the 17th May,- 1870, the defendants raised the grating over the area above described, entered -the cellar through the window, passed up the stairway to the aforesaid trap door, broke through- the trap door into the store, and stole money from the till.
    The defendants’ .counsel requested the court to charge the jury as follows r 1. That unless the jury find beyond a reasonable doubt that the defendants raised or otherwise opened the window below the grating and so entered the cellar, there is no burglary.
    2. That if -the defendants so entered said cellar without, breaking, that any interior raising the trap door is not a burglarious entering, etc.
    3. That if the jury find that the shop of Murray was part of the building owned and occupied by Nicholas Kern,' and that there was access - to the store through the cellar of Murray and the cellar of Kern, then the shop is adjoining a dwelling-house, and there can be no' conviction under-this information.
    The court refused to charge as requested by counsel for defendants, to which the defendants excepted.
    ' '•■ And the jury, under the charge of the court. having returned- a verdict of guilty against said defendants, the questions arising on the trial are certified to this court under the- statute-. '• •
    
      
      8. Lamed and F. A. Baker, for defendants.
    I. The first question raised is whether or not the raising of an iron grating, placed over an area in front of a cellar window, and thereby passing into the area and through the window, which was not shown to have been shut, into the cellar, would constitute a burglarious breaking. — Rex v. John Davis et al., Russ. & Ry., 321; Rex v. Bennett et al., Russ. & Ry., 288; Rex v. Paine et al., 7 C. & P., 135.
    
    II. The second question raised is whether an interior breaking of a building other than a dwelling-house is sufficient to constitute the burglary.
    At common law, burglary in respect to private property could be committed of a dwelling-house only. As to this the breaking might be of the outside, or after entry by an open door or window, it might be of an inner door. — 4 Bl. Com., 224; 1 Hale P. C., 553. §§ 5754, 5755 Comp. L. also make an interior breaking of a dwelling-house sufficient. The breaking and entering of buildings not adjoining to or occupied with a dwelling-house, however, is made burglary by § 5756, but with that the common law concerning burglary has nothing to do. The offense is created by the statute, and the breaking is, in its terms, an exterior one; and an interior breaking is not mentioned as sufficient as in the other two sections cited. Wo insist, therefore, that an exterior breaking was necessary, and that the court below erred in refusing the second request of counsel for defendants. — The People v. Fralick, Hill & Denio, 63; R. S. of N. Y., 668.
    
    III. It appears by the evidence that one Nicholas Kern owned the building; that he occupied a part of it for a dwelling-house, and rented a part of it to one Bobert Murray for a shop or store, and that there was internal communication between the two parts. The defendants were charged with breaking and entering the shop of Murray, but it is well settled that they should have been charged with burglary of the mansion house of Kern, the fact of internal communication making the store, in the language of the statute, “adjoining to or occupied with a dwelling.”— 1 Bishop on Criminal Law, 297 to 300; 1 Russell on Crimes, 862; Rex v. Hancock, Russ. & Ry., 170; Rex v. Sefton, Russ, & Ry., 202; Rex v. Witt, 1 Moody, 248.
    
    
      Dwight May, Attorney General, for the people.
    I. Breaking through a trap-door, or raising one which is kept down merely by its own gravitation, would be burglary within the meaning of the statute. — 1 Bishop Crim. Law, 190; Rex v. Russell, 1 Moody C. C., 377; Rex v. Callan, Russ. & Ryan, 157; 2 East P. C., 487; Tiffany (Howell’s Ed.,) 568. The evidence tended to show .that plaintiffs in error not only raised the grating, but broke through the trap-door, and by that moans reached the store.
    II. The evidence, does not show that the store was “adjoining to or occupied with a dwelling-house.” The proof fully sustains the information. — 4 Black. Com., 225; 1 Hale P. C., 557 ; 2 East P. C., 504; Rex v. Martin, Russ. & Ryan, 108; Rex v. Jenkins, id., 244; Devoe v. Com., 3 Met., 326 ; 3 Greenlf. Ev., §§ 80, 81; 26 N. Y., 200. It is only by statute that the offence charged is burglary. — Koster v. The People, 8 Mich., 432. Kern did not occupy the cellar and store as part of his dwelling-house, nor did Murray; he used the premises simply as a store, and for no other purpose. In view of the authorities above cited, it would have been error to have charged in the information the store as the dwelling-house of either Kern or Murray. The words “ adjoining to or occupied with ” do not mean adjacent or contiguous. They are words well calculated to bring tbe case within the common-law description of burglary, viz: out-houses, adjoining to the dwelling-house, and occupied as part thereof.
   Christiancy, J.

. The defendants were tried in the Recorder’s Court of the city of Detroit, upon an information charging them with with having broken and entered the store or shop of one Murray, in the night time, with the intent feloniously to steal the goods and chattels of said Murray in said store, the information also alleging that they did .then and there feloniously steal two dollars of the money of said Murray.

The evidence tended to prove the larceny in the store, and that the defendants entered in the night time, through an area outside of the cellar, which would seem to have been excavated adjoining the cellar window, and which was covered with an iron grating, as usual in such cases, the. defendants raising the grating for that purpose, then passing, through the window, which was not shown to have been shut at the time, into the- cellar, and thence up a stairway through a trap-door, which was shut, into the store.

It was objected in the Court below, and this is the principal objection urged here, that this did not constitute a breaking within the meaning of § 5756, Compiled Laws; but that the only breaking shown was an interior breaking of the trap-door after getting into the cellar; and that such interior breaking does not come within the provisions of this section, as it would in the case of a dwelling house at common law and under the two preceding sections-of this chapter.

But we think the area or excavation in front of the window, covered and protected by the iron grating, should-properly be considered as a part or prolongation of the cellar, and-'the- grating á-s- a part of the window-for the admission of light, and as much for the protection of the window and the cellar against entrance from without as the sash and glass of the window could have been.

We think, therefore, the taking up of the grating constituted- an exterior, breaking as clearly as the opening of the window itself, or of the outer door.

We think, also, that under the facts stated in the record (to which we refer without repeating them here), though the ownership of the store was in Kern and under the same roof with his dwelling, yet being leased by Kern to Murray and separately occupied by the latter, with an outside' entrance distinct from that of the dwelling, and in no way used with it, the store must be considered as severed by the lease and several occupancy, and that it was not within the meaning of this section, “adjoining to or occupied with a dwelling-house.” It did not adjoin Murray’s dwelling-house nor any dwelling-house occupied by him. It was in no sense appurtenant to, connected with, or within the curtilage of his dwelling, which seems to be the meaning of the statute. The exceptions were not well taken; there was no error in the ruling of the court, and the Recorder should, we think, proceed to render the proper judgment upon the verdict. Let it be so certified to the Recorder’s Court.

The other Justices concurred.  