Appellant was indicted by the grand jury of Franklin county, together with one Treffly Roland, Jr., for the crime of burglary in the third degree, in that they upon the 4th day of *796November, 1913, “ being in a building, to wit: the barn owned by one David Adams, did commit a crime therein, to wit: the crime of petit larceny, and after having committed said crime, did, wrongfully, unlawfully, feloniously and burglariously break out of said building, to wit: said barn, by forcibly unhooking and unfastening and opening an outer door in said barn, going out of the said barn, through the said outer door so opened; against the form of the statute * *
From the proof it appears that these parties came to the barn of David Adams and there found the door open. They went in and stole a heifer. While in there, to prevent the heifer’s getting out of the barn while they were catching it, the door was closed, or partly closed, by one of the party. The testimony of one witness is that the door was hooked and fastened. He did not remember what kind of a fastening there was. The testimony of the other witness, who was also an accomplice, was that the door was never entirely closed, but that one of the parties stood in the door, holding it nearly shut, but leaving a space of two or three inches, until they were ready to bring the heifer from the barn, when the door was released and flew open from its open weight. It probably cannot be said that the determination of the jury that the door was fastened and afterwards opened by the parties committing the larceny is unsupported by the evidence. The testimony that the door was fastened was given by the man who said he fastened it. Both witnesses testifying to the facts in reference thereto were accomplices of the defendant, and the jury might have been impressed with the evidence of one party or the other, so as to leave them without reasonable doubt as to this fact. Furthermore, one heifer had in fact run out of the barn prior to this time, so the jury might have considered it more probable that the door would have been securely fastened to prevent a like escape of the heifer that they afterward tried to take. Under the common law breaking out of a building did not constitute burglary. Breaking into a building has always constituted burglary, and the opening of an outer door constitutes such breaking under section-400 of the Penal Law. By statute, however, the crime of burglary was committed when having committed a crime within a building the party charged there*797after broke out of the building. (See Penal Law, § 404.) The entering into a building through an open door and committing a crime does not constitute burglary, so that the wrongful invasion of another’s premises does not seem to be of the essence of the crime. When, however, the door has been closed by the owner it is his right that that door remain closed as against any one not invited to enter, and so zealous is the law in the protection of this right that to unlawfully open that door, though unlocked, is made criminal. In that case the door has been shut presumptively against all intruders.
In the case at bar, however, the situation is somewhat different. The door was found open. It was not shut by the owner or any one else as against intruders. It was closed, if entirely closed, by the defendant and his accomplices temporarily, and for the purpose of securing the object of their larceny. If the door had not been closed the crime would simply have been larceny. (See Penal Law, § 1290 et seq.) Because they themselves closed the door, wholly or partly, for the purpose either of concealment or of making more sure of their theft, can hardly be deemed to have altered their crime, and to hold that the opening of the door which they themselves had closed had increased their crime would seem to be a characterization of a greater crime without any additional invasion of the rights of the owner. The criminal law should be strictly construed. Under this rule of construction I am unwilling to hold that the breaking out of a building is an element of a crime, unless through the opening of a door not closed by the defendant himself. In my judgment, therefore, the crime of burglary has not been proven, and the judgment of conviction must be reversed.
The judgment should, therefore, be reversed and a new trial granted.
All concurred, except Kellogg, J., dissenting in opinion, in which Woodward, J., concurred.