BREAKING. Parting or dividing by force and violence a solid substance, or piercing, 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 violence and a felonious intent.
The breaking is actual, as in the above case; or constructive, as when the burglar or housebreaker gains an entry by fraud, conspiracy or threat; Whart. Cr. L. 759; 1 Hale, Pl. Cr. 553 ; State' v. Wiseman, 68 N. C. 207; Johnston v. Com., 85 Pa. 54, 27 Am. Rep. 622; Com. v. Lowrey, 158 Mass. 18, 32 N. E. 940; lifting a latch in order to en ter a building is a breaking ; State v. O'Brien, 81 Ia. 93, 46 N. W. 861. 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 ad mit a person is not a breaking of the house; 1 Mood, 178; followed in Com. v. Strupney, 105 Mass. 588, 7 Am. Rep. 556. See People v. Dupree, 98 Mich. 26, 56 N. W. 1046. NO reasons are assigned. It is difficult to con ceive, if this case be law, what further open ing will amount to a breaking, But see 1 Moody 327, 377; 1' B. & H. Lead. Cr. Cas.
524. See BURGLARY.
It was doubted, under the ancient common law, whether the breaking' out of a dwelling-house in the night-time was a breaking sufficient to constitute burglary. Sir M.. Hale thinks that this was not burglary, because fregit et exivit, non fregit et intravit; 1 Hale, P1. Cr. 554 ; Rolland v. Com., 82 Pa. 324, 22 Am. Rep. 768 ; see Brown v. State, 55 Ala. 123, 28 Am. Rep. 693. It may, perhaps, be thought that a breaking out is not so alarming as a breaking in, and, indeed, may be a relief to the minds of the inmates; they may exclaim, as Cicero did of Catiline, Magno me meta liberabis, dummodo inter me atque to murus intersit. But this breaking was made burglary by the statute 12 Anne, c. 1, § 7 (1713). The getting the head out through a sky light has been held to be a sufficient breaking out of a house to complete the crime of burglary; 1 Jebb 99. The statute of 12 Anne is too recent to be bind ing as a part of the common law in all of the United States; 2 Bish. Crim. L. § 99; 1 B. & H. Lead. Cr. Cas. 640.