An open door is not a 'barrier for protecting persons or property' คำพิพากษาฎีกาที่ 98/2532: ประตูที่เปิดอยู่แล้วไม่เป็นสิ่งกีดกั้นตามมาตรา 335 (3)

SUPREME COURT DECISION No. 98/2532
Year: 1989 (B.E. 2532)
Relevant Code Sections: Criminal, Section(s) 334, 335

SUMMARY
Both sides appealed. The trial court had convicted under Section 335(3) alone, the Court of Appeal reduced that to simple theft under Section 334, and the prosecution asked the Supreme Court to restore Section 335(3) and to add Section 335(8). The two grounds were disposed of differently. On Section 335(3) the Court read the words as requiring some act done to the obstruction before passing through, and the bedroom door stood open already, so at that moment it was no longer serving as an obstruction protecting persons or property. On Section 335(8) the Court declined to rule at all: convicting under Section 335(3) alone was in substance a dismissal of the Section 335(8) charge, and because the prosecution had not appealed that to the Court of Appeal the question was closed by the trial court's judgment and could not be reopened. The judgment below was affirmed.

FACTS OF THE CASE
The defendant entered through an open bedroom door and stole property inside. The prosecution charged aggravated theft under Section 335(3) (theft by overcoming a barrier).

COURT'S HOLDING
The Supreme Court held that an open door is not a 'barrier for protecting persons or property' within the meaning of Section 335(3). A barrier must be something actually functioning as a protective obstacle. Since the door was open, the theft was simple theft under Section 334 only.

LEGAL ANALYSIS
Section 335(3) has two limbs, doing something to a barrier or passing through one, and the Court read both as requiring the barrier to be functioning as a barrier at the moment of entry. A bedroom door standing open is not performing that function, whatever it does when closed.

The consequence is that the aggravation turns on the state of the premises rather than on the thief's conduct. A defendant who walks through an open door commits simple theft under Section 334; the same defendant who opens the same door commits the aggravated offence.

PRACTICAL IMPLICATIONS
Section 335(3) raises theft to aggravated theft only where the thief has done something to a barrier protecting people or property and then passed through it. A bedroom door that was already standing open was not a barrier at that moment, so walking in and taking things was ordinary theft under Section 334. The case also shows a trap for a prosecutor: a charge the trial court rejected, and which was never taken to the Court of Appeal, is settled by the trial court's judgment and cannot be revived in a cassation appeal.

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Note: This is an English-language summary of the Thai original judgment.
For the authoritative Thai text, please refer to the Thai version above
or visit deka.supremecourt.or.th.