¶1I concur in the judgment, but dissent from so much of the opinion of Mr. Justice Garoutte as seems to hold that one who enters the store of another with intent to commit larceny therein is guilty of burglary, although the entry was open, and with the actual and free consent of the owner. I do not think that this is a correct interpretation of our statute defining the offense of burglary. I think, in order to constitute a burglarious entry, the act of entering must be itself a trespass,—an intrusion into the building alleged to have been entered, an entry without the consent of the owner. (State v. Moore, 12 N. H. 42.) The evidence was wholly insufficient to justify the verdict in this case, and the jury should have been advised to acquit the defendant.
¶2McFarland, J., and Harrison, J., concurred.