State v. Mower
| Decision Date | 30 March 1971 |
| Court | Maine Supreme Court |
| Parties | STATE of Maine v. Robert O. MOWER. |
Elton A. Burky, Asst. County Atty., Skowhegan, or plaintiff.
James MacMichael, Skowhegan, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE and POMEROY, JJ.
This Defendant-Appellant's 1 appeal raises three issues, all of which we find to be without merit.
These are:
(a) Is the indictment sufficient to charge the Defendant with violation of 17 M.R.S.A. § 754, breaking and entering with intent to commit larceny?
(b) Is the evidence sufficient to sustain the conclusion there was a 'break' and 'entry' into the building with intent to commit larceny?
(c) Is the evidence sufficient to sustain the conviction?
The indictment in this case charges that the Defendant:
'* * * a building owned by B. Wentworth Greenleaf there situate, in which valuable things were then and there kept, feloniously did break and enter with intent permanently to deprive the owner of his property, to wit the goods, chattels and property of the said B. Wentworth Greenleaf in said building then and there being, then and there feloniously to steal, take and carry away.'
This Court has recently had occasion to discuss the statute here under consideration. State v. Byron G. Smith, Me., 268 A.2d 625 (August 19, 1970).
It is so clear the indictment is legally sufficient to charge violation of 17 M.R.S.A. § 754 further discussion is unnecessary. 2
It has long been the law of Maine to constitute the crime of breaking and entering with intent to commit a felony or any larceny, there must be an actual break or its equivalent. State v. Newbegin, 25 Me. 500 (1846).
In Newbegin the Court found there was no break because the door through which the Defendant entered was latched merely in the ordinary manner without any fastening to exclude others and the clerks were in the store ready to attend upon customers.
The Court in Newbegin continued by pointing out that the offense of breaking is a violation of the security designed to exclude.
The Supreme Court of Massachusetts in Commonwealth v. Tilley, 246 N.E.2d 176 (1969), held that movement to a material degree of something that barred the way of entry into a residence was a breaking. See also Commonwealth v. Lewis, 346 Mass. 373, 191 N.E.2d 753.
In State v. Kohlfuss, 152 Conn. 625, 211 A.2d 143 (1965), the Supreme Court of Connecticut declared:
'It is enough to constitute a breaking, if an unlocked window, whether or not partially opened, is raised or further opened to admit a person's body, or if a door, even though unlocked or ajar, is opened for the same purpose.'
To like effect it is the ruling of the Supreme Court of Vermont in State v. Lapoint, 87 Vt. 115, 88 A. 523. 3
In dictum found in State v. Newbegin, supra, our Court cited Rex v. Smith, Ry. & Moo. C.C. 178, as authority for the position that an entrance through a witndow left a little open by pushing it wide open was not a breaking.
We now think otherwise. 4
In the case before us there was evidence given by the man in charge of the print shop that when he left the shop on the night the Defendant was arrested inside the shop, he closed the safe in the shop around four o'clock in the afternoon and that he had someone in his employ check the doors and windows in the upstairs portion of the building to make sure they were secure.
The Defendant and his alleged accomplice were arrested inside the building later that night. There is evidence from which the jury could have found that when the police went to the building to investigate as the result of a telephone call received earlier, they found the...
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State v. Liberty
...or its equivalent. The movement to a material degree of anything that bars the way of entry into the building is a breaking. State v. Mower, 1971, Me., 275 A.2d 584. The physical act of shattering the window by throwing a rock through it may be considered to have been done for the purpose o......
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State v. Thibeault
...A rationale of the Law of Burglary, 51 Colum.L.Rev. 1009, 1020-21 (1951).3 See State v. Liberty, Me., 280 A.2d 805 (1971); State v. Mower, Me., 275 A.2d 584 (1971); Saleme v. Robbins, Me., 270 A.2d 458 (1970). In State v. Cookson, Me., 293 A.2d 780, 784-85 (1972), for example, Justice Weath......
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State v. Crider
...material degree something that barred the way, i. e., either a closed door or a closed window' would constitute a breaking. State v. Mower, 1971, Me., 275 A.2d 584.3 This case is distinguishable from State v. Loeffler, 1973, 60 Wis.2d 556, 211 N.W.2d 1, where the entryway to the door of the......
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State v. Cookson
...whose entrance is not desired. A breaking occurs when the obstruction is moved to a material degree to permit passage. State v. Mower, Me., 275 A.2d 584 (1971). In this case, there was testimony that after the entry of the three masked men the intruders went from the kitchen to the dining r......