The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grady county on a charge of burglary, and was sentenced to serve a term of two years in the state penitentiary.
The information alleges that defendant and one William Bradley broke into and entered the house of S.F. Kniss, by opening a window with the intent to commit larceny therein. The only assignment of error argued is that the evidence is insufficient to sustain the verdict and judgment. This contention must be sustained. There is no testimony in the record that the defendant either alone or with Bradley broke into the building alleged. There is evidence that they committed larceny of property in the building, and one witness testifies to a conclusion that they came out of a window of the building. There is no evidence that they entered through the window, or that the window or doors were closed. While the breaking and entry may be shown by circumstantial evidence, there must be some proof, either direct or circumstantial, that the building was in fact broken into within the meaning of the statute defining burglary. Section 2059, Comp. St. 1921; 9 C.J. p. 1076, par. 133; 4 R.C.L. p. 416, §§ 3 and 4.
The case is reversed and remanded. *Page 265