
    *Finch v. The Commonwealth.
    January Term, 1858,
    Richmond,
    i. Criminal Law What Constitutes “Breaking”— Case at Bar.- -An entry into a dwelling-house in the daytime, through a door that was so closed that it came within the casing, ana to open which required some degree of force, constitutes in law a breaking; thouglhthere was no fastening of any other kind on the door.
    a. Same - Statute - - Word “Break.”* — The word "break, "in the Code, ell. 162. 5 Ik, p. 7.18, is borrowed from the law in regard to burglary, and is to be understood as it would be when used in a charge of burglary.
    3. Same — Costs—Liability of Prisoner.  — A prisoner convicted of a felony, and obtaining a writ of error to the Court of appeals, where the judgment is affirmed, is not responsible for the fees of the clerkor the attorney general. SeeOode,ch. 211, § 10, 11, p. 782.
    Allen Finch was indicted in the Circuit ■court of Pittsylvania county for a felony. The first count charged that he did feloni-ously break and enter, in the day time, the store-house of Yancey W. Ingram, adjoining and occupied with the dwelling-house of said Ingram, with intent to commit a larceny. The second count charged that he broke and entered into the dwelling-house of said Ingram, in the day time, with the same intent.
    On the trial there were questions whether the prisoner was examined for the fact stated in the second count; and as to the competency of one of the jurors ; but these were waived by the counsel for the prisoner in this court. The only question made in this court is, Whether there was in contemplation of law, a breaking into the premises? On that point the judge below instructed the jury, that if from the evidence they should believe that an entry was effected by the prisoner through a door which was open or partially open, ’’That this was in law no breaking. But if thejr should believe from the evidence, that an entry was effected by the prisoner through a door that was so closed that it came within the casing of the door, and to open which required some degree of force, that this constituted in law a breaking, though there was no fastening of any other kind on said door. To this instruction the x>risoner excepted.
    The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at one year; and there was judgment accordingly. And the prisoner asked for a new trial, which was refused; and at his instance the facts proved were stated on the record. Upon these facts the only question was as to the breaking. It appeared that the door through which the prisoner entered the house was a common batten door; and that it had at the time of said entry no lock, latch or fastening other than as follows: That in dry weather it fitted closely into the casing when pulled to. That it opened on the inside of the house. That there was on the inside of the door a small knob by which it was sometimes pulled open. That in any weather it required some exertion to pull it open by said knob. That the door when pulled to in any weather might be blown open by wind, but it would require a strong wind to blow it open. That on the day when the prisoner entered, the weather was warm and dry, and no wind was blowing. It was proved that the prisoner entered by this door, which was shut until he opened it; and he was found in the house kneeling a.t a desk, and trying with Ingram’s bunch of keys to open a drawer of said desk, in which Ingram kept money. The prisoner lived in the neighborhood and had been frequently in the store. On the application of the prisoner, a supersedeas to the judgment was awarded.
    *Barksdale, for the prisoner.
    The Attorney General, for the commonwealth.
    
      
      See monographic note on "Pines and Costs in Criminal Cases" appended to Pifer v. Com., 14 Gratt. 710.
    
    
      
      See monograf)hic note on "Burglary and Housebreaking” appended to Clarke v. Com., 25 Gratt. 908.
    
   SAMUFI/S, J.

The counsel for the plaintiff in the argument here, properly omitted to rely on the error assigned, because the Circuit court refused to quash the second count in the indictment. The motion to quash was probably made because of some supposed imperfection in the record of the examining court, or of some supposed variance between that record and the said second count of the indictment. On inspection of that record, it plainly appears that the County court did examine into the criminal fact alleged in said second count.

The counsel also properly omitted to rely on the error assigned, because of the disqualification of the juror Hundley, by his opinion in regard to the case he was to try. He had not expressed his opinion; it was merely hypothetical, depending upon facts of the truth of which he had formed no opinion; he was moreover indifferent between the commonwealth and the prisoner.

No objection was made or can be made to the ruling of the court or the finding of the jury in regard to the entry into the house in the day time, with intent to commit larceny. It was said, however, that the only remaining constituent part of the offence, the breaking, did not take place, and thus the offence is incomplete.

The word “break,” used in the statute, is borrowed from the law in regard to burglary, and is therefore to be understood as it would be when used in a charge of burglary.

If then, in any case, a party shall by even slight force remove or displace any thing attached to the house as part thereof, and relied upon by the occupant for safety of the house, it is housebreaking within the ^'meaning of the statute, if the other constituent parts of the offence exist.

In our case, the door through which the entry was made, was not fastened by any lock, latch or bar, nothing of the kind being there. The door fitted closely within the casing, and when closed some degree of force was required to open it; this was its only fastening. The Circuit court ruled that the opening of the closed door thus fastened was a breaking within the statute, and the jury found accordingly. The decision of the cour.t is sustained by adjudged cases.

In Regina v. Bird, 9 Car. & Payne 44, 38 Eng. C. L. R. 29, the glass of a widow had been cut, but every portion of the glass remained in its place until the prisoner pushed it in. This was held to be a breaking.

In Regina v. Hyams and others, 7 Car. & Payne 441, the raising of a window not fastened though it had a hasp by which it might have been fastened, was held to be a breaking.

Rifting up the flap of a cellar which is kept down by its own weight, has been held, after some difference of opinion, to be a breaking. 2 Arch. Cr. Pl. & Ev. 336, ’Waterman’s notes. These and other cases of like kind indicate the rule in our case. .The judgment should be affirmed.

A question is made as to what costs of the commonwealth, if any, shall be taxed and charged against the prisoner in this case and in this court. This question was decided by this court in the case of Anglea, &c. v. Commonwealth, 10 Gratt. 696, so far as it arises upon a taxation of costs upon a conviction of felony in a Circuit court. It was held in that case that the ordinary fees of the clerk, sheriff and attorney for the commonwealth for services in court on behalf of the commonwealth, were not to be taxed or paid by the prisoner. The several statutes referred to in the opinion in that case seem to require the *same decision in this case in this court. This is in conformity with the practice under the law existing since the revisal of 1819, as administered in the late General court, and in this court since it succeeded to the jurisdiction of the General court. If a change had been intended by the Code of 1849, it would have been so declared. This Code is a revision of former laws, and should be construed in reference to them in every case, unless it appears that a change was intended. I am of opinion that no fee of the clerk or of the attorney general for services rendered to the commonwealth, is to be charged to the plaintiff.

The other judges concurred in the opinion of Samuels, J.

Judgment affirmed.  