ALBANY,
August, 1809.
The breaking ppen in the night time of a store, at the distance of 20 feet from a dwelling-house, but not connect-fence^or encio^ 3&ry,1S n0t '
THE defendant was convicted, at the last oyer and _ . terminer, in the county of Washington, of a burglary. Judgment was respited, in order to take the opinion of, this court, whether the case amounted to burglary.
The facts were these: The prisoner broke open a store, belonging to Halsey Rogers, in the night-time. The store was at the distance of twenty feet frqm the dwelling-house of Rogers, and no person slept in the store. The house and store both stood on the same lot, and on the same line, fronting on the public highway. There was no fence between the house and store, nor any enclosure around them, but both of them, and the lot of ground on which they stood, were open to the street,
The store was not within the curtelage, as there was no fence or yard, enclosing, the dwelling-house and store, so as to bring them within one enclosure. This brings the case within that of the King v. Garland, (Leach, 130.) and distinguishes it from Gibson’s case, (Leach, 287.) The prisoner must be discharged.
Prisoner discharge.
4 Johns. 424
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