55 Ala. 123
Ala.
1876
STONE, J. —

The Revised Code (§ 3695) declares, that “ any person who, either in the night or day time, with intent to steal, or to commit a felony, breaks into and enters a dwelling house, or any building within the curtilage of a dwelling house, though not forming a part thereof; or into any shop, store, ware-house, or other building, in which any goods, merchandise or other valuable thing is kept for use, sale, or deposit, is guilty of burglary,” &c. It will be observed that this offense naturally divides itself into three constituent elements; the character of the house, the breaking into it, and the intent with which he entered the house. On the first and third of these constituents, there seems to have been no dispute in this case. The contest was over the *125second. Tbe undisputed evidence is, that tbe front door of tbe store, in wbicb tbe offense is alleged to have been coni” mitted, was open; tbat tbe defendant entered tbe bouse through said open door, secreted himself in tbe store, and, when tbe store was closed and locked, tbe defendant was locked in. Afterwards tbe defendant, being in the 'store, committed the larceny spoken of, and, opening or breaking a window, escaped with tbe money stolen. Tbe question for our decision is, does this amount to a breaking into tbe store, within tbe statute ?

Tbe eases of Donohoo v. The State, 36 Ala. 281, and Walker v. The State, 52 Ala. 376, are relied on in support of tbe charge in this case. In tbe case of Walker, as in this case, there was a breaking out; but the.prisoner was not adjudged guilty on tbat account. In each of those cases, tbe entry was by way of tbe chimney, wbicb is uniformly held to be a sufficient breaking and entering to constitute tbat element of tbe crime of burglary. On tbat principle were tbe defendants adjudged guilty in tbe two cases cited. There must be an actual breaking, or a constructive breaking, by fraud, threats, or conspiracy. 3 Greenl. Ev. § 76. In England, they have a statute, wbicb makes tbe escaping from a bouse, by breaking, etc., after committing a felony in tbe bouse, burglary in tbe offender. We have no such statute here. See Com. v. Strupney, 105 Mass. 588; Roscoe’s Cr.Ev. 347.

Under tbe rules above declared, tbe Circuit Court erred in tbe explanatory charge given.

Reversed and remanded. Let the prisoner remain in custody, until discharged by due course of law.