BREAKING. Parting or dividing by force and violence a solid substance, or pierc ing, penetrating, or bursting through the same. • In cases of burglary and housebreaking, the removal of any part of the house, or of the fastenings provided to secure it, with vio lence and a felonious intent.
2. The breaking is actual, as in the above case; or constructive, as when the burglar or housebreaker gains an entry by fraud, con spiracy, or threats. 2 Russell, Crimes, 2 Chitty, Crim. Law, 1092; 1 Hale,' PI. Cr. 553; Alison, Princ. 282, 291. In England it has been decided that if the sash of a window be partly open, but not sufficiently so to ad mit a person, the raising of it so as to admit aperson is not a breaking of the house. 1 Mood. Cr. Cas. 178. No reasons are assigned. It is difficult to conceive, if this case be law, what further opening will amount to a break ing. But see 1 Moody, Cr. Cas. 327, 377 ; 1 Bennett & H. Lead. Crim. Cas. 524-540; BURGLARY.
It was doubted, under the ancient common law, whether the breaking out of a dwelling house in the night-time was a breaking suf ficient to constitute burglary. Sir M. Hale
thinks that this was not burglary, because fregit et exivit, non fregit et intravit. 1 Hale, Pl. Cr. 554. It may, perhaps, be thought that a breakincr out is not so alarming as a break ing in, and, indeed, may be a relief to the minds of the inmates: they may exclaim, with Cicero of Catiline, Magno me melu liberabis, dummodo inter me clique to murus intersit. But this breaking was made burglary by the statute 12 Anne; c. 1, 7 (1713). The get ting the bead out through a skylight has been held to be a sufficient breaking out of a house to complete the crime of burglary. 1 Jebb; Cr. Cas. 99. The statute of 12 Anne is too recent to be binding as a part of the common law in all of the United States. 2 Bishop, Crim. Law, 86; 1 Bennett & H. Lead. Crim. Cas. 540-544.