Gaddie v. Commonwealth
78 S.W. 162
Ky. Ct. App.
1904
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Opinion or the court by

JUDGE BARKER

Reversing.

Appellant was indicted, charged with the offense of unlawfully breaking a warehouse belonging to Leischardt & *470Murdock, in Vine Grove, Hardin county, Ky., with intent to steal therefrom. A trial resulted in a verdict of conviction, and a sentence of the defendant to three years in the penitentiary, of which he is now complaining. The hill of exceptions consists of the following agreement of facts: “It is agreed that the evidence herein showed that the act done was committed in Vine Grove, Hardin county, Kentucky, upon the storehouse of Leischardt & Murdock; that one outside window strip, which fixed and held the window firmly in place, had been pried open from the bottom, and some of the nails drawn out of it, by the defendant, Ed Gaddie, and the strip' left hanging loose from the top; that the window remained unmoved in its place, but was left unprotected on one side, so it could have been easily lifted out, but there was no opening made to the interior of the building. It is further agreed that the evidence showed that the said act was done with intent that stealing should be committed therefrom.”

No entry could have been made into the warehouse after the window strip was loosened. Undoubtedly appellant began to break into the house, but he did not finish the attempt. The term “breaking” as used in the statute has a well-known and definite meaning at common law, v/ith) reference to the offense of burglary; and, in order to constitute it, the action of the defendant must have been such as would, without additional effort, have made an entry possible The term is used in the statute in its common law sense. Robertson, in his work on Kentucky Criminal Law & Procedure, section 302, after defining burglary at common law, says: “As we shall hereafter see, the statutes of this State provide against breaking into dwelling houses and other buildings, whether in the night or day, and the foregoing statement *471as to breaking, entry, etc., applies equally to these statutory cases.” In section 303 he says: “ ‘Breaking,] as used in this connection, implies force, but the slightest force is sufficient. Thus the lifting of a latch, or the turning of a knob in opening a door, the picking of a lock, or opening with a key, or pushing open a closed door, though it is neither latched, bolted, nor locked, the hoisting of a window, the removal or breaking of a pane of glass, or unloosening any other fastening of a door or window which the owner has provided for securing the house from an actual breaking. . . . But any breaking which enables the defendant to take the property out through the breach with his hands is sufficient breaking, if the intent was felonious. On the other hand, there is no breaking where the entering is through an open door or window, or other aperture, or even pushing further open a door partly open, or raising a window partly raised; and it is held that merely breaking the blinds is not sufficient to warrant conviction, when there has been no entry beyond the sash of the window.” Bishop, in his new work on Criminal Law, section 91, says: “A breaking, in the law of burglary, is any disrupting or separating of material substances in any inclosing part of a dwelling house, whereby the entry of a person, arm, or any physical thing capable of wox’kin'g a felony thex’ein may be accomplished.” Subsection 2 of section 95: “If there are inside shutters, it is enough to pass in the hand for the unaccomplished purpose of opening one of them, but the breaking of an outside shutter is not sufficient while the place remains unbroken.” Greenleaf, in his work on Evidence (16th Ed.) volume 3, section 76, thus states the rule: “The breaking of the house may be actual, by the application of physical force; or constructive, where an entrance is obtained by fraud, threats, or conspiracy. An actual breaking may be *472by lifting a latch; making a hole in the wall; descending the chimney; picking, turning back, or opening the lock with a ¡false key or other instrument;, removing or breaking a pane of glass, and inserting the hand, or even a finger, pulling up or down an unfastened sash; removing the fastening of a window by inserting the hand through a broken pane; pushing open a window which moved on hinges and was fastened by a wedge; breaking and opening an inner door after having •entered through an open door or window; or other like acts. . . . The breaking must also be into some apartment of the house, and not into a cupboard, press, locker, or the like receptacle, notwithstanding these, as between the heir and executor, are regarded as fixtures.”

In the case of State v. McCall, 39 Am. Dec., 314, it appears that the accused had broken open the outside shutters of a window, but had proceeded no further, leaving the window still intact. The court said: “It can not be that the common security of the dwelling house is violated by breaking one of the shutters of a door or window which has several. True, it weakens the security which the mansion is supposed to afford, and renders the breach more easy. But as additional force will be necessary before an entry can be effected, there “can, under such circumstances, be no burglary committed. Suppose the shutters of a door, made by placing planks upon each other until it is two or three double if the thickness of one of the planks be removed by one intending to commit a burglary, and an entry thus far made, can it be said that the offense was completed? What, in point of principle, is the difference between such a case and one where there are several shutters, an inch or two arpart from each other? In neither case can such an entry be made as will enable the aggressor to commit a felony. *473. . . To constitute burglary, an entry must be made into the house with the hand, foot, or instrument with which it is intended to commit a felony. In the présent case there was nothing but a breach of the blinds, and no entry beyond the sash window. The threshold of the window had not been passed, so as to have enabled the defendant to consummate a felonious intention; and, according to the principle we have laid down, the charge to the jury was erroneous.”

The case of Rose v. Commonwealth (19 R., 272) 40 S. W., 245, cited by the Attorney General, has no application to the case at bar. There the accused received a prop- which constituted the fastening of a door; thus opening the door, and leaving nothing further to be done, in order to effect an entrance.^ In the case at bar, in order to make in entrance into the warehouse, it was necessary to remove the window by additional force. The effort on the part of the accused to break the warehouse in question was incomplete, and constituted no more than a trespass.

At the close of the Commonwealth’s testimony, a peremptory instruction should have been given the jury to find the accused not guilty.

The judgment is reversed for’ proceedings consistent herewith.