Ray v. State , 66 Ala. 281 ( 1880 )

STONE, J.

The Circuit Court rightly ruled, that the entry into the store-house, through the open window, did not constitute burglary. He erred, however, when he instructed the jury that, if the defendant was in the store-house, and opened the back door, by removing the bar, to let others, his confederates, into the store, whether the others entered or not, this would constitute burglary. This would not amount to a burglarious entrance by the defendant, for he entered without breaking. It was not a burglarious entrance by his confederates, of which offense he would be guilty with them, being present aiding and abetting, for thejr did not enter. — Clark’s Manual, § 883; Brown v. The State, 55 Ala. 123; 3 Greenl. Ev. § 76; 2 Russ, on Crimes, 9th ed., 2; 2 Bish. Or. Law, § 91. It may be he was guilty of larceny, and, possibly, of an attempt to commit burglary, in attempting to let his confederates in, by breaking the .door.

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