
    STATE vs. WILLIAM BOON.
    In Burglary, there must be a breaking, removing or patting aside of something material, -which constitutes a part of the dwelling house, and is relied on as a security against intrusion. A door or window left open is no such security. But if the door or window be shut, it is not necessary to resort to locks, bolts or nails. A latch to the door or the weight of the window is sufficient.
    When a man burglariously entered a room, where a young lady was sleeping, and grasped her ancle, without any attempt at explanation when she screamed, this is some evidence of an attempt to commit a rape, and must be submitted by the Court to the jury.
    Appeal from the Superior Court of Law of Sampson. County, at the Spring Term 1852, his Honor Judge Ellis presiding.
    The prisoner was indicted for a burglarious entry into the dwelling house of one John Owen, in the county of Sampson. The indictment contained two counts. In the one, it was alleged, that the intent was to commit a rape upon Sarah Ann, the daughter of said Owen; and in the other, to commit a rape upon Sarah Eliza Owen, the grand-daughter of said Owen.
    Sarah Ami swore, that she retired early to bed in a shed room of the dwelling house of her father’, in company with her neice, Sarah Eliza, on the night of the 21st of December 1851. The girls slept in the same bed. Previous to retiring they examined the room, and were satisfied no one else was there. Shortly after getting to sleep, she was awakened by feeling some one touch her foot, and saw some person in a stooping position by the bed side. The person grasped her ancle, when she screamed, and recognised the prisoner retreating and escaping by the window. She was well acquainted with him. He had married a servant of her father’s, who lived on the premises; but she had not seen him lor some days. There had been fire in the room, and the embers on the hearth gave sufficient light to enable her to distinguish an individual. She had locked the door. The window was down when she went to bed, but the fastenings were not on. It was usual to fasten it down with a nail, which would prevent any one from without from raising it. When she arose the window was up, and was held up by a stick. It was not the usual sleeping apartment of the witness. She had not slept there for six months previous. It was usually occupied by one Mrs Faircloth.
    Sarah Eliza Owen testified in all respects as her aunt, except that she was not well acquainted with the prisoner, although she had seen him often. She was not positive, but said she took the person to be the prisoner.
    John Owen swore, that he was awakened on the night in question, about ten o’clock, by the screams of his daughter, and, upon going to her .room, received substantially the account of the affair, as testified to above. He took alight and searched the premises ; but could not find the prisoner nor any one else. He did not go to the prisoner’s wife’s house to see who was there — all was dark and silent. He did not afterwards see the prisoner until he was arrested.
    His Honor charged the jury, that they must be satisfied, that it was the prisoner, who entered the dwelling house of Owen, and that he entered with an intent to commit a rape upon the person of Sarah Ann Owen, or of Sarah Eliza Owen; and that, if they were satisfied of one or both of these allegations, they should find the prisoner guilty. The prisoner’s counsel prayed the Court to charge the jury, that there was no evidence of either intent, as charged in the bill of indictment; that if the window was usually fastened by a nail or otherwise, and that upon the night in question such fastening was omitted, although the window might have been down, the entry would not have been burglarious, 'and the prisoner would be entitled to their verdict.
    
      His Honor refused so to charge. There was a verdict of guilty, and a rule for a new trial was had and discharged; and, judgment having been pronounced, an appeal was prayed and allowed.
    
      Attorney General, for the State.
    
      W. Winslow, for the defendant.
   Peaeson, J.

The exception, in reference to the breaking, is settled against the prisonér by the authorities. Passing- an imaginary line is a breaking of the close,” and will sustain an action of Trespass quare clausum fregit. In Burglary more is required — there must be a breaking, removing, or putting aside of something material, which constitutes a part of the dwelling house, and is relied on as a security against intrusion. Leaving a door or window open shows such negligence and want of proper care, as to forfeit all claim to the peculiar protection extended to dwelling houses. But, if the door or window be shut, it is not necessary to resort to locks, bolts, or nails; because, a latch to the door, and the weight of the window, may well be relied on as a sufficient security. Chimnies are usually left open, yet, if an entry is effected by coming down a chimney, the breaking is burglarious.

The motion in arrest of judgment, based on the distinction between felonies at common law and those created by statute, cannot be sustained. There seems to have been a doubt upon the question at one time, but the later authorities do not leave it open to discussion.

The exception, in reference to the want of evidence of the felonious intent, presents the only question, as to which we have had any difficulty. The evidence of the intent charged is certainly very slight, but we cannot say there is no evidence tending to prove it. The fact of the breaking and entering was strong evidence of some bad intent — going to the bed and touching the foot of one of the young ladies, tended to indicate, that the intent was to gratify lust. •Taking hold of — “grasping,” (as the case expresses it) the ancle, after the foot was drawn up, and the hasty retreat without any attempt at explanation, as soon as the lady screamed, was some evidence, that the purpose of the prisoner, at the time he entered, was to gratify his lust by force. It was, therefore, no error to submit the question to the jury. Whether the evidence was sufficient to justify a verdict of guilty is a question, about which the Court is not at liberty to express an opinion.

Per Curiam. Judgment affirmed.  