Commonwealth v. Strupney , 105 Mass. 588 ( 1870 )

Ames, J.

An entrance into a dwelling-house, through a window or door that was left partly open, is not the forcible breaking and entering necessary to constitute the crime of burglary. It should appear “ that the house was secured in the ordinary way, so that by the carelessness of the owner, in leaving the door or window open, the party accused of burglary be not tempted to enter.” Commonwealth v. Stephenson, 8 Pick. 354. In Commonwealth v. Steward, 7 Dane Ab. 136, it was held in 1789, that ,f if a window be a little pushed up ” it is not a breaking to obtain entrance by lifting it. higher. See also Commonwealth v. Hays, Ib. The English authorities are to the same effect. Thus in Rex v. Hyams, 7 C. & P. 441, it was held not to be a breaking, where the prisoner threw up a sash which had been raised a couple of inches, and so effected an entrance. And in 1827 it was held by the twelve judges of England, in Rex v. Smith, 1 Moody, 178, that there was no decision under which, in case of a sash partly open but not sufficiently open to admit a person, the raising of it so as to admit a person could be considered a breaking; and that in this respect the court ought not to go beyond decided cases.

The instructions of the presiding judge at the trial were not in conformity to this rule, and were therefore incorrect.

Exceptions sustained.