The opinion
Memorandum by the Court. The conviction of the relator of the crime of burglary in Texas cannot be treated as the equivalent of a felony conviction in this State, for the purpose of applying section 219 of the Correction Law. Under the Texas statute (Penal Code of Texas, art. 1394), the word “ breaking ” is defined as including ‘ ‘ the entry at a chimney, or other unusual place ”. The decisional law of Texas is to the effect that the entry through an open window may be found to be an entry at an unusual place and therefore a breaking within the Texas statute (Alexander v. State, 31 Tex. Cr. Eep. 359; Davis v. State, 52 Tex. Cr. Rep. 332; Thomas v. State, 131 Tex. Cr. Rep. 269; Parrish v. State, 138 Tex. Cr. Rep. 150; Anthony v. State, 151 Tex. Cr. Rep. 240).
The New York statute (Penal Law, § 400) defines “ breaking ” as including entering “by or through any pipe, chimney, or other opening”. The words “or other opening”, read in context, refer to openings similar to pipes or chimneys, such as ventilators or similar devices which are constructed as permanent openings. The Texas cases, on the other hand; do not limit the words “ other unusual place ” in the Texas statute to permanent openings like chimneys but include any opening, even though temporary, which it is unusual to use as a means of entry, thus embracing entry through an open window. Under the New York statute, entry through an open window is not a ‘ ‘ breaking ’ ’ and therefore could not be the basis of a charge of the felony of burglary but could constitute only the misdemeanor of unlawful entry (Penal Law, § 405).
The relator was convicted twice of the crime of burglary in Texas. The indictments, upon which the Texas convictions were founded, charged in general terms that the relator “ did break and enter a house ” with the intent to commit a crime therein. In view of the broad meaning given to the word “ breaking ” *94 by the Texas statute as construed by the Texas decisions, we cannot say that the offenses, if committed within this State, would have constituted felonies. It was therefore erroneous to hold that section 219 of the Correction Law was applicable. The relator has already served the full term for which he could lawfully be held in custody and therefore the writ of habeas corpus should be sustained.