Haedih, P. J.
Section 498 of the Penal Code defines [363]*363"burglary in the third degree and depiares, “ a person who either, 1st, with intent to commit a crime therein breaks and enters a building or a room or any part of a building is guilty of burglary in the third degree. The word “ building” as used in this section is defined in section 504 of the Penal Code and declared to include a railway car, vessel, booth, tent, shop, “ or other erection or enclosure.” The last section is new, and read in connection with section 498 gives to the latter section the same significance as though it read “ building, or other erection or enclosure.”
We think no error was committed by the trial judge in holding that the defendant had entered a building, erection or enclosure, which was named in the 498th section defining burglary.
People v. McClosky, 5 Park, 57, decided under the Revised Statutes, held that a room in the basement of the courthouse at Utica occupied by the Gulf Brewery was a building or ■“ storehouse,” and that breaking into the room was a violation of the statute against burglary in the third decree.
Since that case was decided, the Revised Statutes in regard to burglary in the third degree have been superseded by the sections of the Penal Code from which we have quoted, and the words “ or other erection or enclosure” introduced into the statute. See 2 R. S. 669, sec. 17.
Under the Revised Statutes the breaking into “ a building within the curtilage of a dwelling-house, but not forming a part thereof, or, 2d, any shop, store, booth, tent, warehouse or ■other building in which any goods, merchandise or valuable thing shall be kept for use, sale or deposit, with intent to steal therein, or to commit any felony,” was declared burglary in the third degree.
In the section of the Revised Statutes as to burglary in the first degree, 2 R. S. 669, sec. 10, it was provided that if the breaking was “ with intent to commit some crime” the offense was made out. It was not necessary to specify what kind of felony was intended in the indictment for burglary in the first degree. Mason v. People, 26 N. Y. 200.
[364]*364But the statute language found in the Penal Code as to burglary in the third degree, as a comparison thereof with the Revised Statutes will show, is quite dissimilar.
If the entry into a building, “ erection or enclosure” with intent to commit a crime therein, the Penal Code is violated.
It is not needful to a conviction that an intent to steal, or an intent to “ commit any felony” shall be shown, provided the intent to commit any other crime is averred and established. Penal Code, sections 498, 499, 504.
A breaking may be made by opening a door tightly closed, whether locked or latched. Tickner v. People, 6 Hun, 657. Penal Code, § 501.
The evidence shows the outer bronze gate was broken by defendant.
If the defendant entered the vault “ or erection or enclosure” with intent to commit a crime therein, then he violated the statute against burglary in the third degree.
Upon the trial the question as to the intent with which he entered was submitted to the jury, and their verdict in effect finds that the intent “was to commit a crime.”
We think the question was proper for the jury upon all the evidence before them, and that we should not disturb their verdict upon that question. Penal Code, §§ 3, 4, 5, 6, 647, 675.
The stone in front of the casket was broken, the top of the casket was broken and also the end of it, and the lead covering over the top of the casket was broken. The cement coving the body was broken and the oakum and gum incasing the body was broken and the slipper and some of the clothing of the body was displaced and disturbed and one of the legs was punctured.
Defendant testifies that he took a bar to enable him to remove obstructions of the box, the cement and gummastic. “ It was with that intent I took it.”
When acts are prohibited by statute and the evidence clearly shows the defendant has done them, it is “ wholly un[365]*365necessary for the jury to find that the defendant was actuated by express maliceit is enough to find that he was intentionally guilty of the acts. People v. Reed, 47 Barb. 243.
If the jury found that the defendant broke in with intent to remove a “ gravestone” and that the tablet or stone in front of the coffin inscribed with the birth, date of death and name of the deceased was a “ gravestone” or “ monument,” then they found that he broke it with intent to commit an net or acts prohibited by section 8, of Chapter 133 of the Laws of 1847, as well as by section 647 of thé Penal Code.
In the indictment before us allegations were inserted to the effect that the vault or building or erection or enclosure, broken into in the night-time by the defendant was “ the property of and owned by William Gr. Phelps, Francis A. Phelps, and Lizzie S. Phelps and others, to the grand jurors unknown, who are the heirs at law of and legatees and devisees under the will of Robert S. Phelps, deceased, and said building, erection and enclosure being a part of the estate left by Robert S. Phelps, deceased, with an intent maliciously, willfully, secretly, and unlawfully to deface, disfigure, remove and destroy a gravestone, marble tablet and monument, the same being works of art and useful and ornamental improvements in and upon said Phelps vault, being the property of and owned by the aforesaid William Gr. Phelps, Francis A. Phelps and Lizzie S. Phelps and otheys to the said grand jury unknown, who are the heirs at law and legatees and devisees under the will of the said Robert S. Phelps, deceased, and being part of the estate left by said Robert S. Phelps, deceased.
By the proofs and concessions upon the trial it appeared that the Spring Forest Cemetery was incorporated in 1853, under chapter 133 of the Laws of 1847: that the association by its deed, August 13, 1862, conveyed to Sherman D. Phelps, father of Robt. S. Phelps, the cemetery lot whereon the vault was located, “ with the conditions and limitations mentioned in said legislative enactment,” that Sherman D. Phelps did not convey or transfer said burial lot in his lifetime, that [366]*366the cemetery association “ had the general management of the cemetery in which the vault was built; ” that Sherman D, Phelps took possession of the lot immediately upon receiving the deed from the cemetery association, and remained in possession until his death in November, 1873. In 1881, at the request of R. S. Phelps, the vault was constructed at a cost of $5,000, and the keys thereof delivered to Robert S. Phelps. It was conceded that the title to the burial lot acquired by S. D. Phelps was inalienable either by grant or devise, an interment having been made thereon during the lifetime of S. D. Phelps. .Upon his death the title to the lot vested in his heirs at law.
. It was conceded by the district attorney upon the trial that, the “ three persons named in the indictment” are not heirs at. law of Robert S. Phelps, and it appeared they are not heirs at law of Sherman D. Phelps.
The defendant moved for his discharge upon the ground of a variance in the allegations in the ownership of the property, and the proof, and because it appeared by the proof that the heirs at law of Robert S. Phelps are Harriet Phelps and eleven other • persons named.
Free access — add to your briefcase to read the full text and ask questions with AI
Haedih, P. J.
Section 498 of the Penal Code defines [363]*363"burglary in the third degree and depiares, “ a person who either, 1st, with intent to commit a crime therein breaks and enters a building or a room or any part of a building is guilty of burglary in the third degree. The word “ building” as used in this section is defined in section 504 of the Penal Code and declared to include a railway car, vessel, booth, tent, shop, “ or other erection or enclosure.” The last section is new, and read in connection with section 498 gives to the latter section the same significance as though it read “ building, or other erection or enclosure.”
We think no error was committed by the trial judge in holding that the defendant had entered a building, erection or enclosure, which was named in the 498th section defining burglary.
People v. McClosky, 5 Park, 57, decided under the Revised Statutes, held that a room in the basement of the courthouse at Utica occupied by the Gulf Brewery was a building or ■“ storehouse,” and that breaking into the room was a violation of the statute against burglary in the third decree.
Since that case was decided, the Revised Statutes in regard to burglary in the third degree have been superseded by the sections of the Penal Code from which we have quoted, and the words “ or other erection or enclosure” introduced into the statute. See 2 R. S. 669, sec. 17.
Under the Revised Statutes the breaking into “ a building within the curtilage of a dwelling-house, but not forming a part thereof, or, 2d, any shop, store, booth, tent, warehouse or ■other building in which any goods, merchandise or valuable thing shall be kept for use, sale or deposit, with intent to steal therein, or to commit any felony,” was declared burglary in the third degree.
In the section of the Revised Statutes as to burglary in the first degree, 2 R. S. 669, sec. 10, it was provided that if the breaking was “ with intent to commit some crime” the offense was made out. It was not necessary to specify what kind of felony was intended in the indictment for burglary in the first degree. Mason v. People, 26 N. Y. 200.
[364]*364But the statute language found in the Penal Code as to burglary in the third degree, as a comparison thereof with the Revised Statutes will show, is quite dissimilar.
If the entry into a building, “ erection or enclosure” with intent to commit a crime therein, the Penal Code is violated.
It is not needful to a conviction that an intent to steal, or an intent to “ commit any felony” shall be shown, provided the intent to commit any other crime is averred and established. Penal Code, sections 498, 499, 504.
A breaking may be made by opening a door tightly closed, whether locked or latched. Tickner v. People, 6 Hun, 657. Penal Code, § 501.
The evidence shows the outer bronze gate was broken by defendant.
If the defendant entered the vault “ or erection or enclosure” with intent to commit a crime therein, then he violated the statute against burglary in the third degree.
Upon the trial the question as to the intent with which he entered was submitted to the jury, and their verdict in effect finds that the intent “was to commit a crime.”
We think the question was proper for the jury upon all the evidence before them, and that we should not disturb their verdict upon that question. Penal Code, §§ 3, 4, 5, 6, 647, 675.
The stone in front of the casket was broken, the top of the casket was broken and also the end of it, and the lead covering over the top of the casket was broken. The cement coving the body was broken and the oakum and gum incasing the body was broken and the slipper and some of the clothing of the body was displaced and disturbed and one of the legs was punctured.
Defendant testifies that he took a bar to enable him to remove obstructions of the box, the cement and gummastic. “ It was with that intent I took it.”
When acts are prohibited by statute and the evidence clearly shows the defendant has done them, it is “ wholly un[365]*365necessary for the jury to find that the defendant was actuated by express maliceit is enough to find that he was intentionally guilty of the acts. People v. Reed, 47 Barb. 243.
If the jury found that the defendant broke in with intent to remove a “ gravestone” and that the tablet or stone in front of the coffin inscribed with the birth, date of death and name of the deceased was a “ gravestone” or “ monument,” then they found that he broke it with intent to commit an net or acts prohibited by section 8, of Chapter 133 of the Laws of 1847, as well as by section 647 of thé Penal Code.
In the indictment before us allegations were inserted to the effect that the vault or building or erection or enclosure, broken into in the night-time by the defendant was “ the property of and owned by William Gr. Phelps, Francis A. Phelps, and Lizzie S. Phelps and others, to the grand jurors unknown, who are the heirs at law of and legatees and devisees under the will of Robert S. Phelps, deceased, and said building, erection and enclosure being a part of the estate left by Robert S. Phelps, deceased, with an intent maliciously, willfully, secretly, and unlawfully to deface, disfigure, remove and destroy a gravestone, marble tablet and monument, the same being works of art and useful and ornamental improvements in and upon said Phelps vault, being the property of and owned by the aforesaid William Gr. Phelps, Francis A. Phelps and Lizzie S. Phelps and otheys to the said grand jury unknown, who are the heirs at law and legatees and devisees under the will of the said Robert S. Phelps, deceased, and being part of the estate left by said Robert S. Phelps, deceased.
By the proofs and concessions upon the trial it appeared that the Spring Forest Cemetery was incorporated in 1853, under chapter 133 of the Laws of 1847: that the association by its deed, August 13, 1862, conveyed to Sherman D. Phelps, father of Robt. S. Phelps, the cemetery lot whereon the vault was located, “ with the conditions and limitations mentioned in said legislative enactment,” that Sherman D. Phelps did not convey or transfer said burial lot in his lifetime, that [366]*366the cemetery association “ had the general management of the cemetery in which the vault was built; ” that Sherman D, Phelps took possession of the lot immediately upon receiving the deed from the cemetery association, and remained in possession until his death in November, 1873. In 1881, at the request of R. S. Phelps, the vault was constructed at a cost of $5,000, and the keys thereof delivered to Robert S. Phelps. It was conceded that the title to the burial lot acquired by S. D. Phelps was inalienable either by grant or devise, an interment having been made thereon during the lifetime of S. D. Phelps. .Upon his death the title to the lot vested in his heirs at law.
. It was conceded by the district attorney upon the trial that, the “ three persons named in the indictment” are not heirs at. law of Robert S. Phelps, and it appeared they are not heirs at law of Sherman D. Phelps.
The defendant moved for his discharge upon the ground of a variance in the allegations in the ownership of the property, and the proof, and because it appeared by the proof that the heirs at law of Robert S. Phelps are Harriet Phelps and eleven other • persons named. The motion was denied and defendant excepted.
Then the district attorney moved to amend the indictment, by “ strildng out therefrom the names of Francis A. Phelps, William G. Phelps and0Lizzie S.- Phelps, heirs at law and devisees of Robert S. Phelps, and insert in the place thereof the names of Harriet Phelps and eleven others as owners of the property described in the indictment.”
The defendant “ objected to the allowance of such amendment to the indictment as not being within the power of the court to allow, and the court has no power to change or alter an indictment in a material matter.” The court overruled the objection and allowed the amendment to be made, and the same was made and an order to that effect was granted by the court. To that ruling the defendant excepted.
There is no mention made of the order in the notice of appeal from the judgment.
[367]*367It may be assumed that the variance between the allegations of the indictment and the proof of ownership of the property of the vault and contents would have been fatal under the law as it existed prior to the adoption of the Code of Criminal Procedure. 2 Bishop on Criminal Procedure, §§ 137, 138, p. 64; Quinn v. People, 71 N. Y. 562; Biggs v. People, 8 Barb. 551.
However, all forms of pleading in criminal cases existing, prior to the Criminal procedure were abolished, and “ the rules by which the sufficiency of pleadings is to be determined and prescribed by the Code of Criminal Procedure, section 273. This brings us to the inquiry as to whether the variance is fatal, and the indictment non-amendable under the Code of Criminal Procedure.
In section 281 of the Code of Criminal Procedure it is declared that “ when an offense involves the commission of, or an attempt to commit a private injury, an erroneous allegation as to the person injured or intended to be injured is not material.”
The injury referred to in the indictment was of property belonging to private persons, and in some sense the attempt was to commit “ a private injury.”
But whether the new provision of law found in section 281 is applicable to and controlling of the question here presented, need not be conclusively determined, but effect may be given to the section when read in connection with section 293 relating to amendments, and both sections interpreted together. By the latter section power is given to allow amendments of indictments. We have already held that section to be valid and constitutional. People v. Johnson, 4 N. Y. Crim. Rep. 591, and our decision was affirmed by the court of appeals in the January term, 5 N. Y. Crim. Rep. 217. In that case the amendment changed the name of the female seduced under promise of marriage, and also the name of the town in which the crime was alleged to have been committed.
By section 293 power is given to the court to allow certain [368]*368amendments to obviate the difficulties presented by a “ variance between the allegations therein and the proof,” viz.: 1st, in respect to time, or 2nd, in the name or description of any place, person or thing.”
By reference to the indictment it is seen that the allegation therein referred to the “ thing” or property affected by the crime. In describing it the pleader averred that it belonged to “ the heirs and legatees” of Robert S. Phelps. By the way of a further description of it the pleaders stated that it was owned by or belonging to the persons named, who were the heirs at-law of Robert S. Phelps. In respect to the ownership, the averment that it belonged to the heirs of Robert S; Phelps was correct, and accords with the proof. But the averment that the ownership was in three persons was erroneous. In that respect the descriptive fact of the property or thing which descriptive averment tended to identify the property or “ thing” was at variance with the proof. The “ thing” would have been more accurately described and in accordance with the proof of ownership if the averment had been that the ownership of the property or “ thing ” was in “ the heirs at law of Robert S. Phelps who were the twelve names that appear as such and in the amendment allowed.
Again, “ the persons” whom the amendment undertook to describe as “ heirs at law and legatees of,” etc., were described by a further addition of three names, whereas it turns out that the attempt to fully describe “ the heirs at law of R. S. Phelps” was.erroneous, in that the heirs did not bear the three names given, but “ the heirs at law” bore twelve other names.
The description of “ the persons ” of the heirs at law as defective, erroneous, and the amendment makes an averment which corrects the description of “ the person or persons ” of the heirs at law of said Phelps.
In People v. Johnson, supra, the “ place ” named in the indictment was stricken out and the amendment substituted “ Champion ” for “ Wilna ” and for a change of person seduced [369]*369the name in the indictment of Mary Olyphant was changed by the amendment to Mary Olivert.
It may be further observed that in the allegations of ownership of the “ thing or property,” coupled with the names of the three persons named are the words viz: “ and others to the grand jurors unknown who are the heirs at law of, and legatees and devisees under the will of Robert S. Phelps deceased.”
The word “ others ” if applied to the persons who by the proofs appear to be the heirs at law of Robert S. Phelps, may be regarded as an indefinite and imperfect description -of “ the heirs at law of Robert S. Phelps ” and a meagre description of the person or “ persons ” and the amendment served to make definite and perfect the description of the “ others ” who were the heirs at law of Phelps.
We are constrained to declare the amendment allowed only perfected “ the name or description of the person or thing.”
The court did not exceed its power in allowing the amendment and disregarding the variance between the original allegations of the indictment and the proof. Sections 281, 293, 294, Code of Criminal Procedure. People v. Johnson, supra.
Defendant put in evidence a judgment roll filed upon the decision of a demurrer interposed to an indictment against the defendant charging him with “ the crime of unlawful and willful injury to and destruction of real and personal property committed ” as alleged in that indictment.
To that indictment a demurrer had been interposed and sustained and defendant discharged. The grounds of the demurrer were, viz.:
I. F or joining “ in one count separate and different offenses,” that is to say, a charge of the commission of a misdemeanor; II. That an injury to a tomb, catacomb or vault, or any part of the same is a misdemeanor;. an injuy to real and personal property when the value of the same is $25.00 and where the punishment is-not specifically prescribed by statute. III. [370]*370That the personal property does not belong to the heirs at-law or devisees of Robert S. Phelps, deceased.
■There was no demurrer upon the ground “that the facts stated do not constitute a crime ” which ground might have-been taken. Section 323, Code of Criminal Procedure.
It is nowhere made to appear by the demurrer, .decision or judgment roll that the court held that the facts stated in. the indictment did not constitute a crime.
Besides, the crime alleged is not the crime alleged in the-indictment for burglary now before us.
The section- which declares the effect of a decision upon a demurrer only declares such a decision “ is a bar to other prosecution for the same offense.” Section 327, Code of Criminal Procedure.
The acquittal or conviction of an indictment in order to-be a good defense to a subsequent indictment must be for the same identical offense charged in the second indictment. 1 Russ, on Crime,.836 ; 1 Blacks. Com. 336; opinion of Allen, J., in People v. McClosky, 5 Park. Crim. Rep. 59.
It is now provided by section 500 of the Penal Code, viz.: “ A person who having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the-burglary, and may be prosecuted for each crime separately, or in the same indictment.”
There is nothing in the judgment record introduced to-show that the court held that the defendant had not committed or did not intend to. commit a crime within the building entered. In the grounds of demurrer the defendant asserted that the facts stated, viz., that an injury to a tomb,, catacomb, or vault, or any part of the same, is a misdemeanor. We are of the opinion that the court did not err in refusing to hold that the “ judgment is a bar to any proof of the commission of the acts charged in the indictment now upon trial ” or in refusing to strike out “ all the testimony which shows the commission of the acts charged.”
We are of the opinion that defendant Richards had no ex[371]*371press or implied authority from any person, entitled to give the same, to break in the vault or commit the acts charged. Taylor the father and administrator of Mrs. Phelps, had no title to the vault, or to the stone monument, slab or tablet in front of the coffin of Robert S. Phelps, deceased. The acts of the defendant were unauthorized and unlawful. Reg. v. Sharp, 40. Eng. Law and Eq. 581, Snyder v. Snyder, 60 How. 370.
Several rulings were had and exceptions taken during the trial, to which reference in this opinion has not been made ; but an examination has not satisfied us that any error was committed which should lead to a reversal, as section 542 of the Code of Criminal Procedure requires the court to disregard “ technical errors or defects or exceptions which do not affect the substantial rights of the parties.”
Schrump v. People, 14 Hun, 10; People v. Gonzales, 35 N. Y., 49; Stokes v. People, 53 N. Y., 165; Coleman v. People, 58 N. Y., 555; People v. Burns, 33 Hun. 300; 2 N. Y., Crim. 415 ; Cox v. People, 80 N. Y., 500.
If the foregoing views are approved, the conviction and judgment should be affirmed, and the proceedings remitted to the oyer and terminer of Broome county, with directions to enforce the same.
Boabdman, J., concurs; Folleto, J., not voting.
Note.—As to when a power acquittal is a defense see People v. Burch, 5 N. Y. Crim., 26 avd. vote p. 32.