526
The Green Bag
is not such a breaking as is essential to the crime of burglary. This being the situation our ex amination of the cases will have reference mainly to the reasons given for the rules adopted, and been the applied consistency with which the rules have "A man may have locks on all his doors and windows, and if he closes the doors and windows without turning a lock, this is not to be ac counted negligence. But if in addition to the non-use of his fastenings he leaves a window sash slightly raised, his negligence becomes a shield to the intruder. This distinction evidently turns upon the theory, prominent in both early and recent cases, that the manifest carelessness of the householder tempts the passer-by to enter. It is doubtless true that a window partly raised or a door standing ajar may attract attention and be a temptation to one who might not be be disposed to try a window or door to see if it was unfastened. But other conditions quite as likely to attract attention and tempt the observer have been held sufficient to support the charge; for instance, a network of twine covering a window space otherwise open, or a chain at tached to the outside of a door and hooked over a nail. Com. v. Stephenson, 8 Pick. 354; State v. Hecox, 83 Mo. 531. And one court has dis agreed upon and left undecided the question of breaking, where the covering of a window opening was a cloth hanging from two nails in the top of the window frame. Hunter v. Com., 7 Gratt. 641. "The word 'breaking' implies the use of force, but it is universally held that the slightest force will be sufficient. It is evident that the question of force has no bearing upon the distinctions affecting this case as they are established by the decisions. The mere lifting of a closed window is a sufficient breaking, but the further raising of a partially opened window is not. The push ing open of a closed but unlatched door is a sufficient breaking, but the pushing back of one found standing ajar is not. And yet the force used in the two cases of either class is of the same character and degree, differing only in the continuance of the effort. "It is said by way of a general designation that the thing moved or displaced to permit the entrance must be something which is relied upon as a security against intrusion and a means of safety to person and property. The cases show how little this means. No provision for safety is required beyond what is included in the barest construction of a building intended to meet the requirements of civilized life. The occupant
may rely upon substances and conditions which are altogether wanting in real security, — pro vided no opening whatever is left. The require ment, as applied to the ordinary means of en trance, is limited to measures which are about equally adapted to guard against the entering of strangers bent on crime and the unceremon ious intrusion of friends. "It has always been held that an entrance through a chimney is a breaking. It is said that a chimney is as much closed as the nature of things will permit — that it is a necessary open ing and needs protection. The pushing open of a closed but unfastened transom, that swings horizontally on hinges over an outer door of a dwelling-house, is a breaking. Timmons v. State, 34 O. St. 426, 32 Am. Rep. 376. But if it were left to hang slightly away from the frame it would not be a breaking to push it further, — unless it were held otherwise on the ground that the position of the transom was such that the condition in which it was left would not be likely to attract attention. In other words, if such a transom is left in a position to serve in the slight est degree the purpose for which it was put on hinges, an entrance by way of it will not be a breaking. If an upper sash sustained only by a pulley weight is left in position, it will entitle the household to the protection of the law. Rex v. Haines, Russ. & Ry. Cr. Cas. 451. But if it be left a little lowered, an entrance effected by pulling it down will not subject the intruder to the penalty. As far as the law is concerned, the necessities of convenient, unobstructed and adequate ventilation have thus far yielded to the theories which burden the inmate with the duty of protecting the outsider from temptation. The incongruity of this situation cannot well be overlooked in a time when the necessity of a constant and abundant supply of fresh air is so generally recognized. "Whatever reasons may formerly have existed for making this distinction, there seems to be none for maintaining it longer. "The offense consists in breaking and entering with felonious intent; and the real breaking is the removal of the obstruction which, if left as found, would prevent the entering. The fact that a quarter of an inch of the space needed to effect an entrance existed before the intruder commenced operations ought not to relieve him from the penalty. The point has never before been brought to decision in this state. The only cases we know of which directly support the view taken are Claiborne v. State, 113 Tenn. 261, 106 Am. St. Rep. 833; People v. White, 153 Mich.
