State v. Thompson

Schwellenbach, C. J.

(concurring in the result) — I concur in the result on the ground that the giving of instruction No. 5 constituted prejudicial error.

The court correctly defined “burglary in the second degree,” when it said in instruction No. 3, “Every person who, with intent to commit some crime therein, shall break and enter any building or premises, or part thereof, wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree.”

The court correctly defined the word “enter” in instruction No. 4, which reads as follows: “The word ‘enter’ as

defined by the laws of the state of Washington, when used in connection with the crime of burglary, means and includes the entrance of the offender, or the insertion of any part of his body.”

To constitute the crime of burglary, the accused must not only enter a building wherein any property is kept for use, sale or deposit, but he must break and enter.

Rem. Rev. Stat., § 2303 (20) [P.P.C. § 112-93], defines the word “break,” when used in connection with the crime of burglary, to include “(a) Breaking or violently detaching any part, internal or external, of the building; (b) Opening, for the purpose of entering therein, any outer door of a *786 building or of any room, apartment or set of apartments therein separately used and occupied, ...”

To break into a building, therefore, a person must either break or violently detach any part, internal or external, of a building, or must open, for the purpose of entering therein, any outer door of a building, or of any room therein.

The trouble is that both instructions No. 4 and No. 5 defined “entering” and there was no definition given to the jury of “breaking.” That constituted reversible error.

Donworth, J., concurs with Schwellenbach, C. J.