¶1 Dissenting Opinion by
¶2 About one-thirty in the morning of August 10, 1943, appellant appeared at the window of the first floor bedroom of Mrs. Charland. There was testimony that earlier in the evening he had done a considerable amount of drinking. Appellant and Mrs. Charland were ac *232 quainted; she testified, “Well, I have talked with him a few times and was introduced to him”; she had seen “him at drinking establishments in town when [she was] there”; she referred to him as “Bobby.” It is not clear what he did when he first appeared at the window, but at some point in the course of events he broke the lower pane of the window with his fist. After that Mrs. Charland had some conversation with him in which she tried to persuade him to go away. When she realized she would not be successful, she went next door to the home of Mr. Calkins for the purpose of calling the police. While standing on Mr. Calkins’ porch, she saw appellant enter her house through the front door which she had left open. Shortly thereafter she saw him leave by the same portal.
¶3 'There is no evidence that appellant committed any overt act to molest Mrs. Charland; after breaking the window, he apparently made no attempt to enter the bedroom through it. He made no threat and no statement of an intention to molest her. She testified she was frightened by him “because I didn’t know what he was after me for.” In her conversation with him, apparently through the broken window pane, she asked him “what he was there for,” and he said: “ What do you care?’ ”
¶4 Although the Penal Code (Act of June 24, 1939, P. L. 872, §901, 18 PS §4901) has very much broadened its definition, to constitute burglary the entry must be made with the intent to commit a felony. We assume it to have been the commonwealth’s theory, because it was on that basis the court submitted the case to the jury, that appellant entered with intent to commit either larceny or rape.
¶5 To my mind the notion that he intended to commit larceny is completely negatived by the fact that he entered the house in the plain view of Mrs. Charland, who was standing within a few feet of him, and the *233 fact that he emerged shortly thereafter without taking anything. See Com. v. Hartland, 147 Pa. Superior Ct. 263, 24 A. (2d) 160. Regardless of whatever else may be inferred as to the purpose of his visit, it is eminently clear he came to see her, not to steal her property.
¶6 When Mrs. Charland left her house by the front door, apparently appellant followed her. She testified that while she was on Calkins’ porch appellant “came after me.” He apparently changed his mind and decided to enter her house. But how can it be said that he entered with intent to commit rape when he knew that the supposed object of his intentions was standing on the porch of the house next door? He, of course, had no business being on Mrs. Charland’s property; since he was uninvited he was a trespasser. When he broke the window, he also violated the law. It is a permissible inference he intended to make improper advances toward Mrs. Charland; he was at least seeking an unwelcome companionship. But, unless I permit myself to be carried away by the horror of the hovering menace of the all too frequently committed sex felonies and the natural impulse to do everything possible to prevent them, I cannot find anything in this record from which it could be inferred, beyond a reasonable doubt, that appellant entered the house with intent to commit rape.
¶7 I would reverse the conviction.
¶8 Reno, J., joins in the dissent.