The opinion of the Court was by
Shepley J.The statute, c. 155, § 11, provides, that if any person, with intent to commit a felony, shall, at any time, break and enter any office, bank, shop, or warehouse, he shall be punished by imprisonment in the state prison. The prisoner was indicted with another person for breaking and entering the shop of Jeremiah Dow, in Portland. He was convicted, and the case is presented on exceptions taken to the instructions, as to what facts were sufficient to constitute the offence of breaking. The facts essential to a decision of the question presented, appear to have been these. The shop had been *503occupied for the sale of goods, with two doors opening on different streets for the entrance of persons to trade. The prisoner entered between seven and eight o’clock in the evening by the door opening on the street least frequented, being aided by another person to watch and inform him, so that ho did it, when three clerks were seated by the fire, where they could not see that door. The shop was lighted and the clerks were there for trade. The doors and windows had not been closed to exclude persons, although the doors were shut. The prisoner watching for a favorable opportunity, carefully lifted the latch, opened the door, took a piece of cloth, and escaped.
It was doubtless the design of the legislature to use the words, break and enter, when defining this offence, in the sense, in which they are used to define the crime of burglary. To constitute that offence, there must be proof of an actual breaking, or of that, which is equivalent to it. Proof of an illegal entrance merely, such as would enable the party injured to maintain trespass quare clausum, will not be sufficient. Nor will proof of an entrance merely, for a purpose ever so felonious and foul, accompanied by any conceivable stratagem, be sufficient, if there be no actual breaking. There must indeed be proof of a felonious intent, but however clearly that may be proved, and however full may be the proof of entrance, the offence is not proved, until there be proof of an actual breaking or its equivalent. It is immaterial, by what kind of violence the breaking is effected. The gist of the offence consists not in the degree or kind of violence used. One, who had obtained an entrance by threats, causing the door to be opened for him; or by fraudulent misrepresentation and falsehood ; or by conspiring with a servant within, was considered as guilty of the offence by the commission of acts equivalent to an actual breaking. The lifting of a trap-door, kept down by its own weight and not fastened, was adjudged to be a breaking. Rex v. Brown, 2 East’s P. C. 487. Yet Baron Bolland held that the lifting of such a door, while newly placed and without the fastenings intended to be made, was not a breaking. Rex v. Lawrence, 4 C. & P. 231. An entrance *504effected by cutting away a net work placed around an opening for a glass window, which had been left open, was held to be a breaking. Commonwealth v. Stephenson, 8 Pick. 354. While the offence will not be committed by an entrance through an open door, window, or other open place usually closed when others are intended to be excluded, it has been decided, that an entrance, by a chimney open, when the intention is to exclude, will be a breaking. Rex v. Brice, Russ. & Ry. C. C. 450.
The offence of breaking is a violation of the security designed to exclude. And coupled with an entrance into a shop with a felonious intent, it constitutes the crime charged in the indictment. The opening of a shop door in the day time, which had been closed only to exclude the dust or cold air, with a design that it should be opened by all, who should be inclined to enter, could not be a violation of any security designed to exclude, and therefore not a breaking. It would not even be a trespass, for the custom of trade in it would be evidence of a general license to enter. The effect would not be different, if the entrance were made in the evening under like circumstances, while the shop continued to be lighted and prepared for trade. Our statute, in defining this offence, makes no distinction respecting the time of breaking and entrance. The same acts will constitute the offence irrespective of light or darkness. In accordance with the principle stated, it was decided in the case of Rex v. Smith, Ry. & Moo. C. C. 178, that an entrance through a window left a little open, by pushing it wide open, was not a breaking. The twelve Judges appear to have been equally divided in opinion in the case of Rex v. Callan, Russ. & Ry. C. C. 157, whether the offence of breaking out of a cellar was committed by lifting a flap door, by which the cellar was closed, when the flap had bolts, by which it was usually fastened, and which were not bolted. If the proof had been, that the door had been closed to exclude, though not fastened by bolts, there would seem to have been a commission of the offence by the violation of that security. But when a door usually fastened for the purpose of exclusion by a lock, bar; or bolt, is entered, when not fastened in that *505mode nor in any mode for the purpose of excluding others, one necessary element of the offence of breaking is wanting.
Exceptions sustained and case remanded to the District Court.