
    Brown v. The State.
    
      Indictment for Burglary.
    
    1. What constiiutes “breaking into” house. — If a person enters a store through an open door, secretes himself within until the door is looked, then commits a larceny, and escapes by opening or breaking out a window, he canf not be convicted of burglary under the statute (Rev. Code, § 3695).
    FROM the Circuit Court of Wilcox.
    Tried before tbe Hon John X. Henry.
    Tbe defendant in tbis case was indicted for breaking and entering tbe drug-store of Hr. John Paul Jones in tbe town of Camden, with tbe intent to steal, and stealing money from the- drawer. Tbe evidence adduced on tbe trial, as to wbicb there was no controversy, showed that be entered tbe store through tbe open door, and secreted himself behind tbe counter; tbat the clerk, haying occasion to leave the store, shut the windows', and closed and locked the door, leaving the defendant so secreted; and that the defendant, during the absence of the clerk, opened the money drawer, took from it between nine and ten dollars, and escaped through one of the back windows, which he opened. On this evidence, the defendant asked the court to charge the jury as follows: “If the jury believe, from the evidence, that the front door of the store was open, and, being open, the defendant entered, and secreted himself under the counter; and that the clerk of the store went out, and shut and locked the door, locking up the defendant in the store; and that the defendant, while thus locked up, took money out of the drawer, and went out of the house by opening a window,— then the defendant would not be guilty of burglary as charged in the indictment.” The court gave this charge, but added to it the following explanation, or qualification: “If ¡the jury find, from the evidence, that he so entered the house jwith the felonious intent to secrete himself therein for the [purpose of stealing therefrom, then it would, in legal contemplation, constitute breaking the houseto which explanation, or qualification, the defendant excepted.
    S. J. CummiNG, for the defendant,
    cited Commonwealth v. Strupney, 105 Mass. 588; Bex v. Smith, 1 Moody’s Or. Cases, 178; Pines v. The State, 50 Ala. 153; Roscoe’s Or. Ev. 340-4, 368; 1 Hale’s P. 0. 553^=; 3 Bla. Com. 226; 2 Lead. Or. Oases, 53; 16 Amer. Rep. 769.
    Jno. "W1 A. SaotoRD, Attorney-General, for the State,
    cited Donohoo v. The State, 36 Ala. 281; Walker v. The Stale, 52 Ala. 376; 2 Bishop’s Orim. Law, § 92; 1 Russell on Crimes, 791; 1 Lead. Or. Oases, 540-41.
   STONE, J. —

The Revised Code (§ 3695) declares, that “ any person who, either in the night or day time, with intent to steal, or to commit a felony, breaks into and enters a dwelling house, or any building within the curtilage of a dwelling house, though not forming a part thereof; or into any shop, store, ware-house, or other building, in which any goods, merchandise or other valuable thing is kept for use, sale, or deposit, is guilty of burglary,” &c. It will be observed that this offense naturally divides itself into three constituent elements; the character of the house, the breaking into it, and the intent with which he entered the house. On the first and third of these constituents, there seems to have been no dispute in this case. The contest was over the second. Tbe undisputed evidence is, that tbe front door of tbe store, in wbicb tbe offense is alleged to have been coni” mitted, was open; tbat tbe defendant entered tbe bouse through said open door, secreted himself in tbe store, and, when tbe store was closed and locked, tbe defendant was locked in. Afterwards tbe defendant, being in the 'store, committed the larceny spoken of, and, opening or breaking a window, escaped with tbe money stolen. Tbe question for our decision is, does this amount to a breaking into tbe store, within tbe statute ?

Tbe eases of Donohoo v. The State, 36 Ala. 281, and Walker v. The State, 52 Ala. 376, are relied on in support of tbe charge in this case. In tbe case of Walker, as in this case, there was a breaking out; but the.prisoner was not adjudged guilty on tbat account. In each of those cases, tbe entry was by way of tbe chimney, wbicb is uniformly held to be a sufficient breaking and entering to constitute tbat element of tbe crime of burglary. On tbat principle were tbe defendants adjudged guilty in tbe two cases cited. There must be an actual breaking, or a constructive breaking, by fraud, threats, or conspiracy. 3 Greenl. Ev. § 76. In England, they have a statute, wbicb makes tbe escaping from a bouse, by breaking, etc., after committing a felony in tbe bouse, burglary in tbe offender. We have no such statute here. See Com. v. Strupney, 105 Mass. 588; Roscoe’s Cr.Ev. 347.

Under tbe rules above declared, tbe Circuit Court erred in tbe explanatory charge given.

Reversed and remanded. Let the prisoner remain in custody, until discharged by due course of law.  