This case turns upon the meaning of section 404 of the Penal Law which reads as follows:
“Burglary in third degree. A person who:
*798“1. With intent to commit a crime therein, breaks and enters a building, or a room, or any part of a building; or,
“2. Being in any building, commits a crime therein and breaks out of the same,
“Is guilty of burglary in the third degree.”
The language is not ambiguous and the meaning seems plain. The crime depends upon the acts of the party accused and not upon the acts of the owner of the building. If a thief breaks the door of a building with intent to steal therein, it is immaterial who closed the door because the statute is silent upon that question. The material facts are the thief, the closed door and the opening of the door with a criminal intent. Under subdivision 2 it is immaterial who closed the door or when it was closed. The material facts are, so far as we are interested in the question — a person (either lawfully or unlawfully) in the building who commits a crime therein and opens a door in order to get out. We cannot use force upon .the statute and warp it from its plain meaning by finding exceptions not warranted by its language or the clear legislative intent. The facts in this case do not invite such action.
Here the owner left the bam door open so that the heifers could go in or out at will. The defendant and his accomplices entered the bam for the purpose of killing a heifer therein. The first heifer sought to be killed escaped through the open door. Then they closed and fastened the door, one of them guarding it while the others proceeded to kill the remaining heifer. The door was closed to keep the heifer from escaping and also probably to lessen the chance of detection. They made use of the closed door in committing and in protecting themselves while committing the larceny. Their act in thus closing the door was an illegal act, and does not enable them to violate the clear letter and spirit of the burglary statute. When the heifer was killed they found themselves confined to the barn unable to take away the stolen property or to gain their own liberty without breaking the building. If they had opened another door and escaped by it, their liability would not seriously be questioned. It is immaterial by what door they escaped so long as they and the stolen property were imprisoned in the barn and it was necessary for them to remain in or *799break out. The same result would follow if the door had remained open while they were killing the heifer and the wind had caused it to close. They could not get out without breaking the building. The owner of a house purposely leaves the front door open: a sneak thief enters it, closes the door so as to avoid detection from the outside, steals an overcoat, raises a back window and jumps out. He is clearly within the intent and spirit of the burglary statute. It is immaterial whether he jumps out of the back window or returns and opens the door which he had closed to hide his acts. I favor an affirmance.
Woodward, J., concurred.
Judgment reversed and case remitted to County Court for new trial.