Breaking

Parting or dividing by force and violence, a solid substance, or piercing, penetrating, or bursting through the same. In cases of burglary and housebreaking, the removal of any part of the house, or of the fastenings provided to secure it, with violence and a felonious intent, is a breaking, as the raising of a closed window (107 N. C. 905), or the opening of a closed door (68 111. 271; 20 Iowa, 413), but an entry by an open door or window (85 Pa. St. 66; 25 Neb. 780) is not, though an entry through a chimney is a breaking into the house, for that is as much closed as the nature of A constructive breaking is the procuring of an entry for felonious purpose by fraud or covin, as by pretending to have business with the owner (9 Ired. [N. C] 463), or by collusion with an inmate (98 N. C. 629), BREAKrNG OF ARRESTMENT. The contempt of the law committed by an arrestee who disregards the arrestment used in his hands, and pays the sum or delivers the goods arrested to the debtor. The breaker is liable to the arrester in damages. See "Arrestment."

Parting or dividing by force and violence a solid substance, or piercing, penetrating, or bursting through the same. In cases of burglary and housebreaking, the removal of any part of the house, or of the fastenings provided to secure it, with violence and a felonious intent. The breaking is actual, as in the above case; or constructive, as when the burglar or housebreaker gains an entry by fraud, conspiracy or threat; Whart Cr. L. 759; 1 Hale, PI. Cr. 553; State v. Wiseman, 68 N. C. 207; Johnston v. Com., 85 Pa. 54, 27 Am. Rep. 622; Com. v. Lowrey, 158 Mass. 18, 32 N. E. 940; lifting a latch in order to enter a building is a breaking; State v. O'Brien, SI la. 93, 46 N. W. 861. In England it has been decided that if the sash of a window be partly open, but not sufficiently so to admit a person, the raising of it so as to admit a person is not a breaking of the house; 1 Mood. 178; followed in Com. v. Strupney, 105 Mass. 5S8, 7 Am. Rep. 556. See People v. Dupree, 98 Mich. 26, 56 N. W. 1046. No reasons are assigned. It is difficult to conceive, if this case be law, what further opening will amount to a breaking. But see 1 Moody 327, 377; 1 B. & H. Lead. Cr. Cas. 524. See Burglary. It was doubted, under the ancient common law, whether the breaking out of a dwelling-house in the night-time was a breaking sufficient to constitute burglary. Sir M. Hale thinks that this was not burglary, because fregit et exivit, non fregit et intravit; 1 Hale, PI. Cr. 554; Rolland v. Com., 82 Pa. 324, 22 Am. Rep. 758; see Brown v. State, 55 Ala. 123, 28 Am. Rep. 693. It may, perhaps, be thought that a breaking out is not so alarming as a breaking in, and, indeed, may be a relief to the minds of the inmates; they may exclaim, as Cicero did of Catiline, Magna me metu liberabis, dummodo inter me atque te mums intersit. But this breaking was made burglary by the statute 12 Anne, c. 1, § 7 (1713). The getting the head out through a skylight has been held to be a sufficient breaking out of a house to complete the crime of burglary; 1 Jebb 99. The statute of 12 Anne is too recent to be binding as a part of the common law in all of the United States; 2 Bish. Crim. L. § 99; 1 B. & H. Lead. Cr. Cas. 540.

Forcibly separating, parting, disintegrating or piercing any solid substance. In the law as to housebreaking and burglary, it means the tearing away or removal of any part of a house or of the locks, latches or other fastenings intended to secure it or otherwise exerting force to gain an entrance, with the intent to commit a felony; or violently or forcibly breaking out of a house, after having unlawfully entered it, in the attempt to escape. Gaddie v. Com., 117 Ky. 468, 78 S. W. 163, 111 Am. St. Rep. 259; Sims v. State, 136 Ind. 358, 36 N. E. 278; Melton v. State, 24 Tex. App. 287, 6 S. W. 303; Mathews v. Sinte, 36 Tex. 675; Carter v. Sinte, 68 Ala. 98; State v. Newbegin, 25 Me. 503; McCo.urt v. People, 64 N. Y. 585. In the law of burglary, "constructive" breaking, as distinguished from actual, forcible breaking, may be classed under the following heads:
(1) Entries obtained by threats;
(2) when, in consequence of violence done or threatened in order to obtain entry, the owner, with a view more effectually to repel it, opens the door and sallies out and the felon enters;
(3) when entrance is obtnined by procuring the service of some intermediate person, such as a servant, to remove the fastening;
(4) when some process of law is fraudulently resorted to for the purpose of obtaining an entrance;
(5) when some trick is resorted to to induce the owner to remove the fastenings and open the door. State v. Henry, 31 N. O. 468; Clarke v. Com., 25 Grat. (Va.) 912; Ducher v. State, 18 Ohio, 317; Johnston v. Co.m., 85 Pa. 64, 27 Am. Rep. 622; Nicholls v. State, 68 Wis. 416, 32 N. W. 543, 60 Am. Rep. 870.

— Breaking a case. The expression by the judges of a court, to one another, of their views of a case, in order to ascertain 'how far they are agreed, and as preliminary to the formal delivery of their opinions. "We are breaking the case, that we may show what is in doubt with any of us." Holt, C. J., addressing Dol-bin, J., 1 Show. 423.

— Breaking bulk. The offense committed by a bailee (particularly a carrier) in opening or unpacking the chest, parcel, or case containing goods intrusted to his care, and removing the goods and converting them to his own use.

— Breaking doors. Forcibly removing the fastenings of a house, so that a person may enter.

— Breaking jail. The act of a prisoner in effecting his escape from a place of lawful confinement. Escape, while denoting the offense of the prisoner in unlawfully leaving the jail, may also connote the fault or negligence of the sheriff or keeper, and hence is of wider significance than "breaking jail" or "prison-breach."Breaking of arrestment. In Scotch law. The contempt of the law committed by an arrestee who disregards the arrestment used in his hands, and pays the sum or delivers the goods arrested to the debtor The breaker is liable to the arrester in damages. See Arrestment.

A parting or dividing with force or violence; a severing ' by fracture; a removal of a part of a house or of any fastening designed to prevent intrusion; to enter in the night-time with felonious intent; a violating of a duty or obligation; an impeachment of validity by judicial proceedings. Breaking a case: the expression by the judges one to another of their views of a case, preliminary to a formal delivery of their opinions. Breaking a will: an estabappropriating its contents. Breaking doors: a forcible removing of the fastenings of a house so that a person may enter. Breaking jail, or prison: an escaping from lawful confinement, v. Breach.

In the law of burglary. A substantial and forcible irruption, as by breaking or taking out the glass of a window, or otherwise opening it; picking a lock, or opening it with a key; lifting up the latch of a door, or unloosening any other fastening which the owner has provided. 4 Bl. Com. 226. 4 Steph. Com. 149, 150, and note (x) ibid. Coke's R. 439. And whatever would be a breaking of an outer door will also be a breaking open of an inner door, to constitute burglary. 2 East's P. C. 488. There must, in general, be an actual breaking, and not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass;) and therefore an entry by an open door or window is, in itself, no burglary. 4 Bl. Com. 226. 11 Dane's Abr. 138. But there may be a breaking by implication, where there is a felonious entry; both breaking and entering being always essential to complete the offence of burglary. 4 Bl. Com. 226, 227. U. S. Digest, Burglary. See Entry.