
    Commonwealth versus Marcus R. Stephenson et al.
    
    The window of a dwellinghouse being covered with a netting of double twine nailed to the sides, top and bottom, it was held, that cutting and tearing down the netting and entering the house through the window, were a sufficient breaking and entry to constitute burglary'.
    Indictment for burglary. The evidence as to breaking was, that in the evening of May 22, the witness fastened the outer door of the dwellinghouse by turning a button down upon the latch, and that about daybreak in the morning he found the door open, and also that the network of the buttery window had been cut away and torn down. The netting was made of double twine, and was fastened by nailing it on each side, and at the top and bottom of the window, for the purpose of letting in the air and keeping out cats and other smaller animals. Within the network there was a glass window, which had not been shut. Putnam J. instructed the jury, that if the defendants broke, cut or tore away the net so fastened, it was in law a breaking of the dwellinghouse. The defendants being found guilty, moved for a new trial because the foregoing instruction was wrong.
    
      Bates and G. Bliss junior, for the defendants.
    Entering by an open window will not sustain an indictment for burglary ; 2 Russell, 901; 1 Hawk. P. C. c. 38, § 4, 5; 4 Bl. Com. 226; Callon’s case, cited in 2 Russell, 903 ; and the circumstance that a netting was stretched across the window in the present case, is immaterial, as this netting was put up only as a security against the entry of small animals. The window was the natural protection against an entry by man. To constitute a breaking, the thing broken must be a part of the house 1 Hawk. P. C. c. 38, § 4, 5; Foster, 108; 1 Hale, 552; 2 Stark. Ev. 320. This netting was not even a fixture Beck v. Rebow, 1 P. Wms. 94; Gale v. Ward, 14 Mass. R. 356; Whiting v. Brastow, 4 Pick. 310; Commomoealth v. Trimmer, 1 Mass. R. 476. In favor of life, a distinction is made, as to what constitutes" a part of the house, between cases relative to mere property, and those in which life is concerned. Foster, 109 ; 2 East’s P. C. 489. And though this is not a case of capital burglary as the defendants were not armed, yet ¡n regard to the facts necessary to constitute a breaking, the Court will not lay down different rules for the different degrees of burglary.
    
      
      Sept. 17th
    
    
      
      Davis (Solicitor-General)
    cited 3 Chit. Crim. Law, 1093; [3d Am. edit. 1107;] 1 Hale, 552; East’s P. C. 487; 4 Bl. Com. 226.
   Parker C. J.

delivered the opinion of the Court. The question in this case is, whether there was a breaking or not. The lifting a latch and opening the door, though not bolted or locked; the shoving up a window, though not fastened; the getting down a chimney, and various other acts done to effect an entry, are held to be a breaking. The offence consists in violating the common security of a dwellinghouse, in the nighttime, for the purpose of committing a felony. It makes no difference, whether the door is barred and bolted, or the window secured, or not; it is enough that the house is 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. Shutting the window-blinds and leaving the windows open for air, is a common mode of closing a house, in the warm season ; if the blinds are forced, it is a breaking.

The objection is, that the lattice-work of the dairy window was of twine only. Suppose it were of wire, or thin slats of wood, would there be any difference ? This, network was nailed down on all sides; it was torn away by the defendants, and they entered the breach. This is quite sufficient to constitute a burglarious breaking and entry.

Motion for a new trial overruled. 
      
       See State v. Wilson, Coxe, (N. Jers.) 439; Commonwealth v Steward, 7 Dawes’s Abr. 136.
     