As so modified, the judgment is affirmed.
Under the circumstances of this case it was error for the court to charge that going through a window, that has glass missing, with a criminal intent is a breaking and entering within the burglary statutes (People v. Toland, 217 N.Y. 187, 191; People v. Viola, 264 App. Div. 38; cf. 12 C. J. S. Burglary, §§ 3, 7; 2 Wharton's Criminal Law, §§ 973, 983 [12th ed. 1932]). It was further error to...
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