(dissenting). I dissent from the holding that the crime of which the defendant was convicted in Canada in 1924 would not have amounted to a felony if it had been committed here. I do not agree with the construction of section 458 of the Canadian Criminal Code as allowing a conviction for burglary or house-breaking, in a case in which the breaking and entry were innocent and the intent to commit a crime within the dwelling was formed after the completion of the entry. I believe that a *9contrary conclusion is warranted, upon a fair reading of section 458, in the light of its common-law background and of the surrounding sections of the Code (see particularly, §§ 457, 459). In any event, the point being an obscure one and no Canadian decision directly in point being available, a hearing should be held at which the opinions of experts in Canadian criminal law may be received. This difficult question of Canadian law should not be summarily decided upon the basis of a literal reading of the statute. People v. Olah (300 N. Y. 96) does not require us to confine our consideration to the bare words of the foreign statute; under that case, we may, and indeed we must, ascertain as best we can the meaning of the statute in the country which enacted it.
The order should be reversed and a new hearing directed.
Bergan, Coon and Imrie, JJ., concur with Foster, P. J.; Halpern, J., dissents, in a memorandum.
Order modified, on the law and facts, by directing that relator be resentenced as a second offender rather than as a first offender, and as so modified, affirmed.