a state's witness who has not been introduced.

Same
cused.

guilt of someone other than ac

2. Upon trial for burglary evidence is inadmissible that witness learned that someone other than accused had placed the stolen property near the house of accused to cast suspicion on him. Burglary

by those regulating railroad operation and | fidavit, the truth of which has been admitothers of a similar nature, but this severity ted, to prevent a continuance, is not error of punishment for a violation of such stat- where it is directed at the credibility of utes cannot be regarded as controlling to take this class of cases out of the rules which impose the duties of ordinary care established by the common law of negligence. From this it results that in all cases where it is shown that a person operating a motor vehicle in excess of the speed fixed by law, causes another traveler personal injuries, the question presented is whether, under all the facts and circumstances shown, his conduct amounts to gross negligence, and thus precludes him from asserting the defense of contributory negligence; and if such operator is found guilty only of a want of ordinary care, which proximately caused the collision and consequent injury, then he is entitled to assert the defense of contributory negligence.

An examination of the record of the case shows that there is a conflict in the evidence upon the question of the speed at which defendant was operating the car, which should be resolved by the jury. We are of the opinion that the court properly awarded a new trial, though the jury found that Herbert Ludke was guilty of contribu

tory negligence. It is apparent that the
jury were probably misled by the court's
action in withdrawing from their considera-
tion the question of defendant's violation
of the statutory speed limit. This action
of the court would naturally lead the jury
to believe that this element of the case had
no bearing on the issue presented for their
consideration, and thus deprive plaintiff of
the benefit of such evidence in determining
whether or not the boy was guilty of a
want of ordinary care proximately contrib-
uting to produce the injuries.

The order appealed from is affirmed.
Timlin, J., took no part.

There appears to have been a conflict of opinion amongst the early English judges as

breaking out.

3. Burglary may be established by proof of breaking out as well as breaking in, under statutes providing punishment for anyone house and take away anything of value, who shall feloniously break any dwelling and requiring statutes in derogation of the common law to be liberally construed with a view to promote their objects.

Witness

persons.

wife of one of two accused

4. The wife of one of two persons indicted for burglary should be permitted to testify in behalf of the other, with a caution that the evidence is not to be con

sidered as affecting the case of her husband.

(October 8, 1914.)

PPEAL by defendants from a judgment A of the Circuit Court for Whitley County convicting them of housebreaking. Affirmed as to defendant Lawson. Reversed as to the other defendant.

The facts are stated in the opinion. Messrs. Rose & Pope for appellants. Messrs. James Garnett, Attorney General, and R. T. Caldwell, for the Commonwealth:

The continuance should not have been granted.

Jones v. Com. 154 Ky. 640, 157 S. W. 1079; Toliver v. Com. 104 Ky. 760, 47 S. W. 1082.

A wife should be permitted to testify under an admonition to the jury that her testimony is to be considered only on behalf of the other defendants than her husband.

Dovey v. Lam, 117 Ky. 19, 77 S. W. 383, 4 Ann. Cas. 16.

Nunn, J., delivered the opinion of the

court:

The appellants, Crit Lawson and Greene Lawson, were indicted and convicted for housebreaking, and sentenced to the penitentiary one to five years. The indictment was returned on the 18th day of Feb

to whether breaking out was burglary at common law, Lord Bacon holding that it was (4 Bl. Com. 227, citing Bacon, Elm. 65), and Sir Matthew Hale that it was not. (1 Hale, P. C. 554). Sir Matthew Hale said: "If a man enters in the nighttime

ruary, and charges that on the 16th day | just after the defendants were arrested, he of February Crit and Greene Lawson "did heard Nathan Sullivan talking, and in that unlawfully, wilfully, feloniously, and forcibly break open and into the dwelling house owned by Joe Perkins, and in the possession of A. Sawyer, and used as a dwelling house, and did take, steal, and carry away flour and lard of value therefrom," etc.

way "learned that through the instrumen-
tality of said Nathan Sullivan and others,
and by either them directly or through
them by their connivance, the flour, lard,
and other property said to have been ob-
tained by breaking into the outhouse con-
trolled by Antony Sawyer was carried from
said outhouse to near the home of Crit
Lawson, at least some of same, and placed
there for the purpose of afterward insti-
tuting this prosecution against said Crit
Lawson.
. I do not know exactly,

The case was set for trial February 21st. Appellants sought a continuance on account of absent witnesses, and in support of it filed their affidavit showing that Jim Carr and Alonzo Satterfield, if present, would swear that bad feelings existed be- from said conversation and said statement tween the defendants and Nathan Sullivan, of said Nathan Sullivan at said time, alleged chief witness for the common- whether it was done through his or others' wealth, and Carr would also swear that, procurement."

by doors opened with the intent to steal, | whether one could be convicted of burglary and is pursued whereby he opens another even when charged with breaking out of a door to make his escape, this I think is house. The better opinion seemed to be that not burglary, for fregit et exivit is not the breaking must be for the purpose of effregit et intravit," and stated that this fecting an entrance, and not for the purpose opinion was contrary to the opinion of Lord of effecting an escape. And therefore the Bacon. Because of this conflict of opinion, statute of 12 Anne was passed, which made the statute of 12 Anne, chap. 7, § 3, was it burglary to break out of a house the same passed, providing: "Whereas there has as to break into it." And in Edwards v. been some doubt whether the entering into State, 36 Tex. Crim. Rep. 387, 37 S. W. 438, the mansion house of another, without the court said that not until the statute of breaking the same, with an intent to com- 12 Anne was it burglary to break out of a mit some felony, and breaking the said house. house in the nighttime to get out, be burglary, be it declared and enacted, that if any person shall enter into the mansion or dwelling house of another, by day or by night, without breaking the same, with an intent to commit felony; or being in such house shall commit any felony, and shall in the nighttime break the said house to get out of the same, such person is and shall be adjudged to be guilty of burglary," and this statute was in effect, re-enacted in 7 and 8 Geo. IV. chap. 29, § 11, and 24 and 25 Vict. chap. 96, § 51.

Since the enactment of these statutes the question involved in English cases general ly has been what is sufficient to amount to a breaking out. See cases cited infra.

In State v. Ward, supra, one who entered a dwelling house for the purpose of committing a felony, without breaking in, but who in making his escape broke out, was held guilty of burglary. The court said that "if each and every of the acts constituting a crime are committed, and all the evils consequent on the crime are produced, the precise order in which the acts are done cannot be material. Now, burglary is the breaking and entering the house of another in the night season with an intent to commit a felony. The jury have found that, coupled with the guilty intent, the accused committed every act going to make up this crime. The accused stood not on the doing of these acts, nor on the order of doing them, except so far forth as was convenient and necessary to accomplish his guilty purpose. That this offense is burglary we can have no doubt."

See also LAWSON V. COM.

And in State v. Bee, 29 S. C. 81, 6 S. E. 911, where it was contended that as accused may have entered a room through an

The same doubt as to whether breaking out constituted burglary at common law, which existed among the early English judges, has arisen among the American judges. Thus, it was the opinion of the court in State v. Ward, 43 Conn. 489, 21 Am. Rep. 665, 2 Am. Crim. Rep. 27, that it did constitute burglary at common law, and that the statute of Anne should be re-open door, there being no proof that doors garded simply as declaratory of that law. On the contrary, in Rolland v. Com. 82 Pa. 306, the court said that it did not think that breaking out was ever burglary at common law, admitting that there was a difference of opinion among the early English judges which led to the passage of the statute of 12 Anne, which was strong evidence that it was not the common law. And in State v. McPherson, 70 N. C. 239, 16 Am. Rep. 769, the court said: "At common law it was at least doubtful

were closed until the proprietor thereof retired for the night, a requested charge should have been given that there was no burglary, it was held that there was no error in declining to give such charge as there was evidence showing that accused was found in the room at a very unreasonable hour; that personal property disappeared, and that accused, when discovered, jumped through a window onto a piazza and thence to the ground, making his escape from the premises through a gate

Sullivan near to Lawson's house, and going | door and held it fast. The partition door in the direction of it, carrying a can of stood open. The rear or kitchen door was lard on his shoulder. Then the common- latched, and also fastened with a peg at wealth introduced in rebuttal Nathan Sul- the floor. There was an open window in livan, and he denied that he carried any the front room. There was a trail of flour lard that night in the direction of Crit leading from the barrel at the front door Lawson's house. The defendant did not through the open partition door, and out ask him anything about the statements in the kitchen door. When the theft was disthe affidavit for continuance, nor did they covered, the kitchen door was latched, and then or afterwards offer to read the affi- fastened at the floor as usual. These cirdavit. cumstances indicate that the thief entered The appellants insist that the court through the open window, stole the flour should have given a peremptory instruction and lard, opened and carried it out through in their favor, because the proof failed the kitchen door, then closed and fastened to show a breaking in. The lard and flour it from the inside, and made his exit was in a two-room house, into which Saw-through the open window. It may be said yer expected to move in a few days. The that there was no proof of a "breaking barrel of flour was against the front room in," and defendants therefore argue that, And following as authority White v. | referred to, it has been held that unlocking State, it was held in Lockhart v. State, 3 Ga. App. 480, 60 S. E. 215, that breaking out is not burglary under the statute.

So, under a statute providing that "any person who, either in the night or day time, with intent to steal, or to commit a felony, breaks into and enters a store

and opening a hall door and running away are sullicient to constitute a breaking out of the house. Rex v. Lawrence, 4 Car, & P. 231.

So, in Rex v. McKearney, Jebb, C. C. 99, where accused, being discovered at 11 P. M., hid in the cellar; fled from the cellar and is guilty of burglary," one locked himself in a room which had a shed who enters a store through the open door, roof and skylight, and had broken the skysecrets himself until the store is closed and light and gotten his head through, enlocked, and then, committing a larceny,deavoring to escape, when he was seen and opens or breaks a window and escapes with the stolen property, cannot be convicted of burglary. Brown v. State, 55 Ala. 123, 28 Am. Rep. 693.

In Edwards v. State, 36 Tex. Crim. Rep. 387, 37 S. W. 438, it was held that under a statute providing that "burglary is constituted by entering a house by force, threats, or fraud at night or in like manner by entering a house during the day and remaining concealed therein until night with the intent in either case to commit a felony or the crime of theft," a breaking out did not constitute burglary.

And in St. Louis v. State, Tex. Crim. Rep., 59 S. W. 889, and Smith v. State, Tex. Crim. Rep., 60 S. W. 668, prosecutions under the same statute, it was held that the offense of burglary is not committed where one enters a store during business hours, remains concealed therein, and after the store is closed, commits a theft and breaks out, although it should be stated the decision probably turned on the question as to whether the subsequent theft related back to the entry so as to make it a fraudulent entry.

In order to convict one of burglary by breaking out of a building, the indictment must allege a breaking out, and so one can. not be convicted of burglary by breaking out of a building under an indictment alleging a breaking and entering a building. State v. McPherson, 70 N. C. 239, 16 Am. Rep. 769.

Under statutes contemplating breaking out.

Under the English statutes previously

forced back, it was held that there was a sufficient breaking out of the house to constitute the crime of burglary.

So, also, if a lodger commits a felony, and in the nighttime even lifts a latch to get out of the house with stolen property, that is a burglarious breaking out of the house, the court stating that it is the purpose for which he undoes the fastening that makes the act unlawful. Reg. v. Wheeldon, 8 Car. & P. 747.

But that the lifting of a trapdoor over a cellar, which was held down by its own weight merely, was not a sufficient breaking to constitute burglary, was held in Rex v. Lawrence, supra.

And in Rex v. Callan, Russ. & R. C. C. 157, where accused broke out of a cellar by lifting a very heavy flap which was not bolted, though it had bolts, six judges were of the opinion that there was a sufficient breaking to constitute burglary, as the weight of the flap was intended as security, it not being the common entrance; but six judges were of a contrary opinion.

Counts in an indictment for burglary that the prisoner "did break to get out," and "did break and get out," were held insufficient, in Rex v. Compton, 7 Car. & P. 139, under a statute which uses the words "break out."

In People v. Toland, 165 App. Div. 795, 151 N. Y. Supp. 482, where accused with accomplices entered a barn through an open door for the purpose of stealing a heifer therein, and while securing and killing the heifer closed the barn door, and opened the same when making his escape with the stolen property, it was held that

as it takes a breaking in to constitute the offense of burglary, the case fails for want of proof. On this proposition, the question is whether, under our statute, the offense is committed, if, in stealing articles, the house is either broken into or broken out of.

Section 1162 of the Kentucky Statutes, with reference to this matter says: "If any person shall feloniously break any dwelling house and feloniously take away anything of value. Section 1164 says: "If any person shall feloniously break any warehouse,

.

with intent to steal, or shall feloniously take therefrom or destroy any goods.

Section 460 of the statute provides as follows: "The rule of the common law that statutes in derogation thereof are to be strictly construed is not to apply to this revision; on the contrary, its provisions are to be liberally construed with a view to promote its objects.

Giving to the statutes that construction required by § 460, we are of the opinion that, if the goods be stolen, it is immaterial whether the theft be accomplished by breaking in or breaking out. Proof of breaking of some sort is essential. Breaking is established in the mere turning of a knob or opening of a latched door, but whether that breaking occurs before or after the theft does not alter or lessen the degree of the offense. When the thief opened the kitchen door, he broke the house, although it was a breaking out.

Entry by breaking is not a requisite by our statute. Under the English common law, the old offense was committed by breaking and entering, and it was then held that it was not an offense to enter without breaking, and afterwards break out in order to make an escape. To obviate this, the state of 12 Anne was enacted, in which it was declared that one was guilty of burglary if he broke out of a house with intent to commit a felony, so that to-day in England the offender is prosecuted under the common law if he breaks in, and by statute if he breaks out. Some American states have enacted special statutes making it burglary to break out, but in our opinion the Kentucky statute was written to cover the offense withseems plain. The crime depends upon the acts of the party accused, and not upon the acts of the owner of the building. If a thief breaks the door of a building with intent to steal therein, it is immaterial who closed the door, because the statute is silent upon that question. The material facts are the thief, the closed door, and the opening of the door with a criminal intent. Under subdivision 2 it is immaterial who closed the door or when it was closed. The material facts are, so far as we are interested in the question, a person (either lawfully or unlawfully) in the building who commits a crime therein and opens a door in order to get out. We cannot use force upon the statute and warp it from its plain meaning by finding exceptions not warranted by its language or the clear legislative intent. The facts in this case do not invite such action. Here the owner left the barn door open so that the heifers could go in or out at will. The defendant and his accomplices entered the barn for the purpose of killing a heifer therein. first heifer sought to be killed escaped through the open door. Then they closed and fastened the door, one of them guarding it while the others proceeded to kill the remaining heifer. The door was closed to

The breaking and the stealing are the two ingredients of this offense, as described by the statutes above referred to, and the purpose of the law was to punish theft of goods from such houses. The moral wrong is done when the two elements appear, without regard to which was done first. such opening of the door was not a breaking out so as to constitute burglary within the meaning of § 404 of the Penal Code, which reads as follows: "A person who, being in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the third degree." The court said the door was found open. "It was not shut by the owner or anyone else as against intruders. It was closed, if entirely closed, by the defendant and his accomplices temporarily, and for the purpose of securing the object of their larceny. If the door had not been closed, the crime would simply have been larceny. Because they themselves closed the door, wholly or partly, for the purpose either of concealment or of making more sure of their theft, can hardly be deemed to have altered their crime, and to hold that the opening of the door which they themselves had closed had increased their crime would seem to be a characterization of a greater crime without any additional invasion of the rights of the owner. The criminal law should be strictly construed. Under this rule of construction, I am unwilling to hold that the breaking out of a building is an element of a crime, unless through the opening of a door not closed by the defendant himself." But in a well-reasoned dis-keep the heifer from escaping and also senting opinion, in which Woodward, J., concurred, Kellogg, J., said, in construing this section of the Penal Code: "The language is not ambiguous and the meaning

The

probably to lessen the chance of detection. They made use of the closed door in committing and in protecting themselves while committing the larceny. Their act in thus