Commonwealth v. BurkeCommonwealth v. Burke
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The defendant argues that it was error to deny his motion brought under
Applying the standard set out in Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we conclude that the Commonwealth failed to meet its burden of proving a breaking and entry. There was evidence from which the jury reasonably could find that the defendant sought entry to the building, a house, through a first-floor window which was protected by a storm window. The defendant removed the glass portion of the storm window, leaving its aluminum frame in place. By use of a pry bar, he bruised the wooden sash of the inner window, but that window remained intact and was neither raised nor penetrated. Hearing noises, the occupants of the house, mother and daughter, went downstairs to investigate. When the daughter saw someone (the defendant) outside pass by the front door, she screamed. The defendant turned, knocked on the door, identified himself, and told the mother that he had been asked by his father, a police officer, to check the house.
Although the storm window had been removed, entry to the house remained obstructed by the inner window. Because the inner window remained as an unmoved barrier, there was no entry into the dwelling or living space of the house within the meaning of
Because of the form of the present complaint and the jury instructions (seee.g., Commonwealth v. Washington, 15 Mass. App. Ct. 378, 383-384 [1983];
The judgment is reversed, the finding of guilty is set aside, and judgment is to be entered for the defendant.
So ordered.