State v. . Johnson , 61 N.C. 186 ( 1867 )

Pearson, C. J.

There is no error. The prisoner, by artifice and fraud, procured the door to be opened, and imme diately thereafter entered, This, according to all of the authorities, amounts to a constructive breaking.

In State v. Henry, 9 Ire., 468, the Judges were unanimous in the opinion that when the entry was made immediately after the fastening of the door was removed, or so soon thereafter as not to allow a reasonable time for shutting the door and replacing the fastening, it amounted to a breaking. In that case the door was left unfastened, and the prisoner did not enter until after the lapse of some ten or fifteen minutes. A majority of the court, being unwilling to extend the doctrine of constructive breaking, held that there was no breaking, because no case had carried the doctrine to that extent. The other member of the court thought that it was a breaking.

This opinion will be certified, to the end that judgment may be pronounced in the court below.

Per Curiam. . There is no error.