Commonwealth v. Tilley - 355 Mass. 507, 246 N.E.2d 176 (1969)

Rule:

Where the reasonable inference was that for the intruders to enter in the course of their joint enterprise one or both had moved to a material degree something that barred the way there is a breaking. A material fact may be inferred, even though it is not a necessary inference). The commonwealth was not obliged to prove that all windows were closed or locked. Entry through an open window not apparently intended, or useable in due course, as a means of entry is within the intent of the statute. The security of the house in such a case is at least as much invaded as when a closed unlocked door is opened. 

Facts:

Tilley was convicted of breaking and entering the house of Kathleen Dolan. On appeal, Tilley contended that there was insufficient proof to show a breaking.

Issue:

Was there evidence to permit the judge who sat without a jury to find that Tilley on August 16, 1967, "did break" as well as enter Dolan's dwelling house?

Answer:

Yes.

Conclusion:

The court noted that there was no proof that the rear lock was forced, or how the lock operated, or that any lock-slipping device was found, but the proof did not foreclose the possibility that entrance had been through an open window. The court then held that the trial court could infer that defendant's entry, along with another intruder, had not been through an unobstructed entrance because, among other things, the homeowner's testimony that she had locked both doors warranted the inference that she intended to secure the house against intruders, and was not likely to have left a window completely open. Also, it was likely that if one intruder had gone in through a window the other had entered through the back door opened by his confederate. Finally, the court held that the commonwealth did not have to prove that all windows were closed or locked. Accordingly, the court overruled defendant's exceptions to the trial court's decision.