Commth of Ky
vs
Hezekiah Alexander

The Defendant prays that an appeal be granted him from the judgment of the Circuit Court of Meade County.

(See sec: 329 of Criminal Code of Practice Stantons edition)

The record shows that the indictment charges the Deft with committing a burglary.

Burglary "is the breaking and entering the dwelling house of another with the intent to commit a felony therein." See Whartons American Criminal Law page 353.

The room which was said to have been attempted to be entered was a store room, and the statute punishes that offence with con=

finement in the Penitentiary not less than one year and not more than Seven years.

The punishment of Burglary is not less than three years nor more than ten years.

The Court erred in not granting the motion of the Defts counsel to dismiss the indictment. The proof was not sufficient to sustain the indictment if the latter had charged a store House to have been broken. It was store House in this case (see Bill of exceptions

The Court manifestly erred in overruling that motion of the deft's Counsel, considering the crime charged as the offence of Burglary.

The proof ^evidence^ fell entirely short of proving a breaking and entering of a dwelling house. To constitute burglary there must be an entry. The latter is as essential to the completion of the offence as the breaking itself.

No matter how clear the proof of breaking is, and no matter how clear

the proof is of a felonious intent yet if an entry is not accomplished the prosecution falls to the ground.

What was the evidence in this case as to the entry? The Bill of Exceptions shews that the prisoner was seen holding or hoisting up the window with one hand, and in the other in the act of putting a stick under the the window to hold it up. The witness did not think he had at the time to get his head in the windowor that either his head or elbow was in the window. thought both were on the outside

Now I submit that this evidence shews no entry at all. The hoisting the window was not an entry, even if a hoisting had been proved. But in this case the witness said that the Deft was seen holdingor hoisting up the window but even if a hoisting the window had been clearly proved, that would not constitute an entry. In Whartons Criminal law page 357 under the title Burglary this case is cited. The prisoner raised a window which

was not bolted and thrust a crow bar under the bottom of the shutter (which was about a half a foot within the the window) so as to make an indent on the inside of the shutter, but from the length of the bar his hand was not inside the house, this was not held to be a sufficient entry to constitute a burglary.

In this case the witness expressly said (see Bill of Exceptions) that she did not think the Deft had time to get his head or elbow in the window, or that either his head or elbow was in the window, thought both were on the outside

Upon this evidence it is clear to my mind that the Judge ought to have instructed the Jury to find for the Deft The instruction asked for was to dismiss the indictment which is substantially a motion to find for the Deft. I could enlarge upon the prayer for an appeal, but I deem it unnecessary. I ask that thean appeal be granted

Respy
N. Wolfe
atto for Deft