concurring.
I concur in the result. I write separately, however, to address the problems with Neb. Rev. Stat. § 28-507(1) (Reissue 1995), which provides that a person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvement erected thereon with intent to commit any felony or with intent to steal property of any value. As written, breaking is an essential element of burglary, and in my opinion, it should not be an essential element.
For more than a century, we have tried to define “breaking” in terms of requiring the removal of an obstruction. We have held that evidence of any act of physical force, however slight, by which an obstruction to the entry of premises is removed is sufficient to prove the essential element of “breaking” as used in the offense of burglary. This, in my opinion, has led to some unreasonable and inconsistent results.
For example, opening a closed door is a breaking, State v. Tyrrell, 234 Neb. 901, 453 N.W.2d 104 (1990), but walking through an open door is not, Hayward v. State, 97 Neb. 9, 149 N.W. 105 (1914). Opening a skylight is a breaking, State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988), but crawling over a closed door and through an open transom is not, McGrath v. State, 25 Neb. 780, 41 N.W. 780 (1889). Presumably, opening a gate is a breaking (not yet decided), but crawling over a fence *218is not, State v. McDowell, 246 Neb. 692, 522 N.W.2d 738 (1994).
If a person climbs over a fence, climbs a drainpipe to the roof, walks over the roof, jumps to a balcony from the roof, and then enters through a door or crawls through an open window on the balcony, burglary has not been committed. If, however, the person opens the gate to the fence and then repeats all of the remaining activities, we would conclude that there has been some force to remove the obstruction, i.e., opening the gate, and that burglary has occurred. Clearly, breaking is not an essential element of the crime of burglary and should be eliminated from § 28-507.
In the case at bar, the victim was awakened by a man standing by her bed. The man was wearing a ski mask, and he ordered her to go to another part of the apartment, where he sexually assaulted her at knifepoint and stabbed her right thigh. If the evidence established that the door to the apartment was open, the man who walked through the door would not have committed the offense of burglary. Based on our decision in McDowell, supra, the Nebraska Court of Appeals felt compelled to reverse because the jury was not specifically instructed that the removal of an obstacle to entry is necessary in order for there to be a “breaking,” as the term is used in § 28-507.
In McDowell, we reversed a burglary conviction on the ground that the defendant’s admitted act of climbing the fence in order to steal transmission casings from a storage yard did not constitute a breaking as a matter of law because it did not involve the removal of an obstruction to entry. I do not agree with the conclusion in McDowell that crawling over a fence is not removal of an obstruction to the entry of the premises and therefore is not a breaking, but that is the current state of the law. It is the province of the Legislature, not the courts, to amend § 28-507 to eliminate the requirement that there be a breaking as an element of the crime of burglary.
At present, climbing over the newly erected fence at the Governor’s mansion with the intent to commit any felony is not burglary. Opening and walking through the gate with the same intent is burglary.
*219It is because of my disagreement with McDowell and the problems above illustrated that I concur in the result.
Gerrard and Meller-Lerman, JJ., join in this concurrence.