Carter v. State , 68 Ala. 96 ( 1880 )

STONE, J.

Lifting the latch of an outer door, and thereby effecting an entrance, although the door is not otherwise fastened, is a sufficient breaking and entrance under an indictment for burglary.—State v. Wilson, Coxe (N. J.) 439. So, pushing open an outer, closed door, although not fastened, and thereby entering, (Finch v. Com. 14 Grat. 643), or, lifting the flap of a cellar door, usually kept down by its own weight, (Rex v. Russell, 2 Eng. Cr. Gases, 377,) is each a sufficient breaking for purposes of burglary. And, raising the sash of a window, shut down close but not fastened, or, pulling down an upper sash, kept in place alone by its weight, or lifting a transom shutter, kept in place by its own weight, may each constitute a burglarious breaking.—Rex v. Hyams, 7 C. & P. 441; Rex v. Hall, Russ. & Ry. 451; 1 Russ. on Cr. 786 et seq.; Rosc. Cr. Ev. 349; Whar. Am. Cr. Law, § 1532 et seq.; Com. v. Stephenson, 8 Pick. 354; 4 Black’s Com. 226-7. In a note to page 3, 2 Sharsw. Russ. on Cr., it is said : “ To constitute burglary, there must be a breaking,, removing, or putting aside of something material, which constitutes- a part of the dwelÜDg-house, and- is relied on as a security against intrusion.”—State v. Boon, 13 Ire. 244. See., also, Fisher v. The State, 43 Ala. 17; Walker v. The State, 63 Ala. 49; Lawder v. The State, 63 Ala. 143; Stone v. The State, Id. 115. The sum of these authorities, we think, is, that if the entrance be effected through an opening previously there, without forcible enlargement of it, this cannot be-a burglarious entrance, unless it is effected through an open chimney. This rule applies to a door or window left open,, or any other opening in the house, through which the ingress is effected. It has even been held that if a window sash be left partly raised — not enough to allow entrance — it is not burglarious to raise it- higher, and thus enter the premises. On the other hand, it does not require violent or mechanical-force to constitute a burglarious breaking. On the contrary,, if any force be required- and employed., to remove or displace-that which has been placed there to- close the opening-, or t-o-protect the contents within; this is. enough. The law does not and cannot institute an inquiry into the sufficiency of the various fastenings, that may be employed for the preservation of chattels, in store. Under these rules, if the testimony was believed, the breaking was such that it might be bur-glarious. The Circuit Court did not err in the charge refused.

Affirmed..