
    PEOPLE against VAN GAASBECK.
    
      Court of Appeals;
    
    
      January, 1871.
    Indictment.—Pboop op Distinct Felony.
    An indictment for burglary in the first degree must allege the breaking of the dwelling house in one of the methods enumerated in the statute, or it is fatally defective.
    The question as to how far a distinct felony may be proven, discussed by counsel; and authorities bearing thereon, cited.
    Writ of error to the supreme court to bring up the judgment of that court, reversing a judgment of the Albany county sessions, convicting the defendants, upon an indictment for burglary, and ordering a new trial.
    The defendants, Edwin Van Gaasbeck and John Burt, were jointly indicted at the Albany sessions, March 18, 1869, for the crime of burglary, in entering the house of one Jeremiah J. Austin, Jr. The indictment charged the offense to have been committed March 13, 1869. It was as follows:
    “In the court of sessions of the county of Albany. Of March term, in the year of our Lord one thousand eight hundred and sixty-nine.
    “ City and County of Albany, ss:
    
    “The jurors for the people of the State of New York, in and for the body of the city and county of Albany, being then and there sworn and charged, upon their oath, present: That Edwin Van Gaasbeck and John H. Burt, late of the Tenth Ward, in the city and in the county of Albany, aforesaid, on the thirteenth day of March, in the year of our Lord one thousand eight hundred and sixty-nine, with force and arms, about the hour of four o’clock in the night of the same day, at the city of Albany in the county aforesaid, the dwelling house of one Jeremiah Austin, Jr., at Xo. 295 Hamilton-street, in the Tenth Ward of the said city of Albany, there situate, feloniously and burglariously, did break and enter; in which said dwelling house there was then and there, at the same time, a human being, with intent the goods and chattels of the said Jeremiah Austin, Jr., in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away, one coifee-urn and lamp of the value of ten dollars ; one tea-pot of the value of ten dollars ; two napkin rings, marked J. J. A., of the value of eight dollars; one napkin ring, marked S. J. D., of the value of four dollars; one sugar spoon, marked S. J. D., of the value of four dollars ; one butter knife, marked J. S. A., of the value of three dollars; one child’s knife and fork, and spoon, marked J. J. A., of the value of twelve dollars; one syrup cup, salver, .and one spoon, marked J. S. A., each of the value of four dollars; six plated tea spoons, each of the value of one dollar; one plated fork, of the value of one dollar, all being of the goods, chattels and property of the said Jeremiah Austin, Jr., in the said dwelling house then and there being, then and there feloniously and burglariously did steal, take and carry away, to the great damage of the said Jeremiah Austin, Jr., against the form of the statute in such case made and provided, and against the peace of the people of the State of KTew York and their dignity.
    “R. W. Peckham, Jr., District-Attorney”
    
    On March 20,1869, the prisoners were arraigned and pleaded not guilty. An application was made to the court by prisoners’ counsel to postpone the trial of the indictment until the next term of the court, because of the absence of material and necessary witnesses; but this motion was denied, and the trial ordered to proceed at once.
    The district-attorney was allowed to prove, under defendants’ objection, by Mrs. Belle Lorrimer, that on March 14, 1869, her house was entered', in the night time and certain articles of personal'property-taken therefrom. . Eleven small spoons were shown this witness by the district-attorney, and she was interrogated as to whether they looked like her property, and testified she believed them to be the same as were stolen from her on March 14, 1869.
    The court, at the suggestion of the district-attorney, charged that the prisoners could be convicted of burglary in the first degree, under this indictment, to which charge counsel for prisoners duly excepted. The jury rendered a verdict of guilty of the felony charged in the indictment, and the prisoners were, each of them, sentenced to be confined in the Clinton State prison, for the term of ten years and one month at hard labor.
    
      R. W. Peckham, District-Attorney, for plaintiffs in error.
    I. The first question that arises, is that made by the exception to the decision of the court allowing the people to identify the property found under the bridge of the stable, as belonging to Mrs. Lorrimer, and to prove that it was stolen from her house on the Sunday night succeeding the burglary in Austin’s house. ■ A full examination of the case will show the correctness of the ruling of the court, (a.) The point aimed at by this evidence was to aid in showing that these prisoners committed the burglary in Austin’s house. It is admissible, for such a purpose, to show the possession by the prisofier - of other stolen articles, provided any legitimate argument can be drawn therefrom which tends to fix the guilt of the crime for which the prisoner is on trial, upon him. Such are the cases where proof is allowed of the possession by the prisoner of the fruits of a plurality or of a series of thefts, in order to fix the crime of theft of one particular article upon the prisoner. Such cases are cited in Wills on Circumstantial Evidence, 50. In speaking of the force of the presumption arising from the recent possession of stolen property, Wills says: “ The force of this presumption is greatly increased, if the fruits of a plurality or a series of thefts be found in the prisoner’s possession,” at page above cited. The circumstances under which this property under the bridge was found, the place itself, the arrival of the prisoners, the waiting of Burt for Yan Graasbeck to go to the bridge, and the silver-ware found under the bridge and on Burt, are enough to authorize the jury in finding that this property under the bridge, and that in the satchel carried by Burt, was all in the immediate possession of the prisoners, and thus the jury might draw the inference legally arising.from the fact that it was all recently stolen, the inference that they stole it (See also 2 Russ. on Cr., 774, 5-6 ; 8 Am. ed.). It is true that evidence must be confined to the point in issue; yet, if the evidence offered tends to prove the guilt of the prisoner of the crime for which he is on trial, or to prove a fact from which a presumption of such guilt may legally be drawn, it should not be rejected because of its tendency to prove him guilty of a separate and distinct felony for which he is not on trial (See cases above cited). (5.) Such is the case here. The evidence thus admitted made out the case. The burglary was committed at Austin’s on Saturday night, and silverware was taken. On Sunday night, in a house near Austin’s, another burglary or larceny is committed, and more silver-ware taken. On Monday, the silverware taken from Lorrimer’s house on Sunday, is found under the stable bridge, and Burt and Van Gfaasbeck, on the same night, came to this bridge in company. Burt has a satchel found to contain the Austin property, for the taking of which they were on trial, and he and Van Graasbeck, on arriving at the stable bridge, stop, and Burt waits for Van Gaasbeck, who proceeds to the bridge, looks under it, and is then frightened by the arrest of Burt, and runs away, and' is finally caught. The identification of this property under the bridge, and the proof .that it was stolen less than twenty-four hours before, and that the parties who have it in their possession, or concealed under that bridge within such a short time after it was stolen, are these very prisoners, who were together Saturday night, and also together this Monday night, with the stolen Austin property in their possession, and looking out for the stolen Lorrimer property ; all these different facts tend directly to the proof of the main fact to be established, that these same parties, thus seemingly connected, and, in truth, having the fruits of a plurality of thefts about them, or concealed in a place to which they are wending their way and in its immediate vicinity, when caught, are the same persons who burglariously broke and entered the Austin house, and thus obtained the property, of which they were then in possion. The force of the presumption arising from the fact of the recent possession of the stolen Austin property is, at any rate, in the very language cited from Wills, “greatly increased” by this proof of the other stolen property in their possession. The prisoners’ counsel themselves acknowledge the force of this evidence as tending to show the prisoners guilty of the Austin burglary, when, in so many words, they request the court to charge that the same persons committed the Austin burglary who committed the Lorrimer burglary, and if the prisoners did not commit the latter, neither did they commit the former. In Phillips 
      v. People, cited in the Albany Law Journal, proof that a defendant stole a horse of one man and a wagon of another, was held competent and proper by the fourth district.
    II. Another question arises in reference to the indictment. It is in the form which has been in use in Albany county for years past, and I think in the State at large ; and the identical indictment in this case was taken from the supply left on hand, by my learned predecessor in office, and is in the precise form of other indictments, drawn under his administration, for the offense of burglary in the first degree. Therefore, if long use of such indictments is of any weight, the full benefit of it should be given in this case, (a.) The indictment is good. It is in the same form as that given for a precedent in New York by Whart. Prec. Indictm., pp. 180, 181, 182. It is also approved by Archbold 2 Arch. Cr. Pr. & Pl., 263). (b.) Certainly the indictment does not contain all the words of the statute, but it is claimed that it contains all that are essential. In charging an offense, it is not necessary to follow the precise language of the statute, but words of equivalent import are sufficient (Thompson v. People, 3 Park. Cr. R., 208). (c.) The word “burglariously” being used, which is a technical term (3 Ch. Cr. Law, 862), that is sufficient, and the evidence on the trial must show that it falls within the particular description of the statute, (d.) A statement which necessarily imports the crime the same as if the words of the statute had been used, is enough. In Paige v. People (6 Park., 683), an indictment was held sufficient, which charged the forging of a deed, without alleging it to have been under seal, the word deed importing an instrument under seal. This was in the court of appeals. This allowed an allegation of a conclusion of law as to whether a certain instrument was a deed or not, and allowed the pleader to draw that conclusion. Of course, upon the trial, if an instrument under seal were not produced, the indictment would not be sustained, and the prisoner would have to be acquitted, (e.) The same principle holds good in indicments for murder. Under the provisions of the Revised Statutes, prior to 1862, there were three cases in which the killing of a human being would be murder; and, at common law, there were other cases in which the killing of a human being would also be murder. Yet it it was decided, as long ago as People v. Enoch (13 Wend., 159), that an indictment for murder in the common law form was good as an indictment under the Revised Statutes; but that the accused could not be convicted on such an indictment, of felonious homicide with malice aforethought, unless the evidence be such as. to bring the case within the statutory definition of murder. In other words, you could indict as for murder in common law (a more comprehensive crime than, under our statute), but your evidence must show the commission of the crime within the provisions of the statute. Judge Yelsojy, in delivering the opinion of the court in the above case of Enoch, said: “The rule that the indictment should bring the offense within the words of the statute declaring it, is applicable only in its strict terms to cases where the offense is created by statute, or where the punishment has been increased, and the.pleader seeks to bring the prisoner within the enhanced punishment.” At common law burglary was a.felony, and all principals and accessories liable to capital punishment (3 Ch. Cr. Law, 864, marg. 1100). These views were reiterated by the chanceEor in the same case in the court of errors, and also by the same court in People v. White (24 Wend., 520), and again in the court of appeals in Fitzgerrold v. People (37 N. Y., 413), and Kennedy v. People (39 N. Y., 245), where the court says the statute is not a rule of pleading, but a guide to the conduct of the trial, prescribing the proofs requisite to a conviction. As is said in all these cases that a conviction might take place under such an indictment of an offense not provided for by the statute, “ the answer to all.this is, that it is the business and the duty of the court to see that a proper direction be given to the jury in point of law upon the evidence; and if either court or jury err, the appropriate remedy must be sought.” Per Nelson, J., in People v. Enoch; approved of in 37 and 39 N. Y. (supra). Where the offense is not created by the statute, nor the punishment increased, the case does not fall within the rule of following the statute as to a description of the offense. (/.) Precisely the same facts exist in relation to the crime of burglary as in that of murder; and the same reasoning applies in the case of burglary as in the case of murder. Burglary in the first degree, as decribed in our statute, was burglary at common law; the same as murder, as described by our statute, was also murder at common law. The common law crime of burglary embraced a wider range of acts than the statutory offense of burglary in the first degree, precisely the same as the common law crime of murder embraced a wider range than the statutory offense. Here are circumstances in relation to the facts constituting the two crimes entirely, perfectly analogous. It is held, beyond all chance of contradiction, that the common law form of an indictment for murder is sufficient under our statute. Why, then, is an indictment for burglary, good at common law, not good under our statute % There is no distinction that can be taken between the two cases. Why should one indictment be held good and the other bad % It may be said that the words of the common law, “malice aforethought,” mean and amount to the same thing as the words of the statute, “premeditated design.” So they, do, in the sense that the greater contains the less. The words “malice aforethought” may include cases of implied as distinguished from express 
      malice, which are not included in the words “ premeditated design.” So that on a common law indictment a conviction of murder might be obtained, when there was proof only of implied malice, and a consequent failure to prove murder within the statute. But the cases hold that it is the duty of the court to see that the evidence brings the case within the statutory crime, although the indictment simply alleges the common law offense. Just so in an indictment for burglary. The law in relation to the indictment for murder is conclusively settled by our highest courts, and has been for nearly, forty years. The same law, based as it is upon the same facts, should be held in regard to the indictment for burglary; and the same law existing, the indictment in this case is good, (g.) Substantially the doctrine contended for here is also held by the court of appeals in People v. Thompson (41 N. Y., 1). In that case the indictment charged the crime of murder in the first degree, and it lacked an essential allegation to charge the crime of murder in the second degree, as that crime is defined in People v. Fitzgerrold (supra); and yet, a conviction for murder in the second degree was upheld by the court, upon the authority of Keefe v. People (7 Abb. Pr. N. S., 76; S. C., 40 N. Y., 348), where a conviction of murder in the second degree, under like circumstances, was affirmed. (Ji.) I am aware of the case of Fellinger v. People (15 Abb. Pr., 128), and of the doctrine therein held. That was a case, however, which came up simply on the record, without any case or bill of exceptions, and, consequently, it could not be determined whether the proof in the case came up to the statutory requirement, while in the case at bar it is thus seen. If, upon such an indictment, the proof comes up to the statute, then, it is claimed, it is enough. Whatever militates against such doctrine in Fellinger’s case, it is contended, is wholly in conflict with a long line of decisions, from Enoch’s case down to the present time. The statute in relation to burglary neither creates the offense nor increases the punishment; and the rule, referred to by Judge Ingraham, of following the statute, does not apply in such cases, the offense being a felony at common law. Strictly and legally considered, this indictment is good.
    
      N. C. Moak, for the defendants in error.
    I. The court erred in permitting the district-attorney to prove that a burglary had been committed at Lorrimer’s, and property stolen from that house on another and a different occasion from that on which the burglary in question, at Austin’s, was perpetrated, (a.) Green-leaf says : “It is an established rule which we state as the first rule governing in the production of evi- • dence, that the evidence offered must correspond with the allegations, and be confined to the point in issue ” (1 Greenl. Ev., § 51). He adds : “This rule excludes all evidence of collateral facts, .... and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them ; and moreover, the adverse party, having- had no notice of such a course of evidence, is not prepared to rebut it (1 Greenl. Ev., § 52; Best Ev., 5 Eng. ed., 1870, 805-6). The only exception to the rule is, in those cases where the Jcnowledge or intent of the party is to be established, as in passing counterfeit money (1 Greenl. Ev., § 53). (b.) “ For a reason similar to that which precludes the government from introducing evidence of the bad character of" the prisoner, as a foundation on which to raise the presumption of his guilt in the particular case, evidence also of another crime than the one charged is not permitted to be brought forward against him” (1 Bish. Crim. Pro., § 490). “It is even not admissible to-show that the defendant has committed other crimes of the same kind as the one for which he is being tried; as, for instance, if he is being tried for larceny, to show that he has committed at other times and places other and disconnected larcenies ” (1 Bish. Crim. Pro., § 490; Barton v. State, 18 Ohio, 221; Cole v. Commonwealth, 5 Grat., 696; Regina v. Butler, 2 Car. & K. [61 Eng. Com. L.], 221). “So on the trial of an indictment for stealing the property of A., and also for receiving it, knowing it to have been stolen, evidence of possession by the prisoner of other property stolen from other persons at other times, is not admissible to prove either the stealing or the receiving” (Regina v. Oddy, 2 Den., 264 [6 Brit. Crown Cas., 266]). In this case Pickering, for the crown, said (p. 268): “The property here, to which the evidence objected to related, was shown to have been in the possession of the prisoner ; but the question is whether you may not go further, and, prove that such property was stolen.” Aldeesoe, B.: “May you not as Well contend that, on an indictment for burglary, which necessarily avers an intent to steal (or to do some felonious act), you may show that the prisoner committed another burglary, in order to show his intention to steal,” &c..... Lord Campbell, Ch. J.: “The moral weight of such evidence in any individual case, would no doubt be very great; but the law is a system of general rules ; and it does not admit such evidence, because of the inconvenience that would result from it.” In consequence of this decision, an act was passed in England,, providing that on a trial of any person for receiving stolen goods, knowing them to have been stolen, “ evidence may be given that there were found in the possession of such person, other goods stolen within the preceding period of twelve months” (Best Ev., 5 Eng. ed., 1870, 350, note). In Regina v. Butler (2 Car. & K. [61 Eng. Com. L.], 221), “A. was indicted for stealing a shilling which had been previously marked and put Into a till. A constable found the shilling, and asked him if he had any more money of Mr. S.’s about Mm. The prisoner produced some half crowns, and then made a statement. Held, that this statement was not receivable in evidence, on the ground that it related to another and distinct felony.” On the trial of an indictment for larceny, it is error to permit evidence to go to the jury for the purpose of proving that, just before the defendant committed the act for which he is on trial, he committed another larceny (Barton v. State, 18 Ohio, 221). In Cole v. Commonwealth (5 Grat., 696), on an indictment for advising the slaves of E. L. to escape, it was held improper to admit evidence to prove that the prisoner was guilty of advising the slave of another person, not named in the indictment, to escape.” In People v. Dibble (5 Park., 28), this court held, that ‘ ‘ on the trial of an •indictment for passing a counterfeit bank note, it is not competent for the prosecution to prove that two or three days after the transaction in question, the prisoner passed two other counterfeit notes to Other persons, the said notes not being shown to have been issued by the same bank as the one for passing which the prisoner was on trial, and, the utterance of them being in no way connected with that act.” Comstock, J., says (p. 30): “The conduct of the prisoner in passing the two bills to the peddlers, in exchange' for rings, was no doubt suspicious. But these transactions do not appear to have any connection with the alleged offense for which he was indicted. The two bills were passed to the peddlers some two or three days after the transaction for which he was upon trial. . . . We think, therefore, that these transactions were merely calculated to excite suspicion and prejudice against the prisoner, and had no legal bearing upon the issue which was on trial. It is true, the prisoner, some three or four days before the dealing with the peddlers, said he had no money. TMs circumstance only suggests a doubt whether he came honestly by the bills which he is proved to have had so soon afterward, but it does not connect those bills, or the uttering of them, with the particular offense for which he was tried.” (c.) Testimony of the prisoner’s guilt or participation in the commission of a crime wholly unconnected with that for which he is put on trial, cannot be admitted (Dunn v. State, 2 Ark., 229; Commonwealth v. Call, 21 Pick., 229). id.) Whoever entered Austin’s house did so with the intention of committing a burglary ; this could not he disputed—all the circumstances show it. Again, the Austin and Lorrimer burglaries were committed on different nights. These two features distinguish this case from Osborne v. People (2 Park. Cr., 583), as there the burglaries were committed on one night, and, as Judge James remarks, “must be regarded as one connected transaction.” Again he says: “ The acts of the prisoner and his associates, while in the grocery of Hall, rendered it doubtful whether the entry was a burglary or a trespass ; hence the necessity of proof to show the intent.” Judge James fully maintains our position, as he declares that a separate and distinct felony cannot be proved, unless a part of the same transaction (2 Park., 585). (e.) The court of sessions attempted to escape the consequences of the admission of this evidence by telling the jury that it bore only upon the question of confederation. The answer to this is, that this was not a question in the case; that it was not competent for such a purpose, and that the prisoners had been injured by the admission of the evidence. The rule is well settled, that improper evidence should not be admitted to go to the jury, • and it is not sufficient afterward to direct them to disregard it (Erben v. Lorillard, 19 N. Y., 299; Penfield v. Carpenter, 13 Johns., 350; Irvine v. Cook, 15 Id., 293; Haswell v. Bussing, 10 Id., 128; Tuttle v. Hunt, 2 Cow., 436). (f.) The officer who testified that defendants came to the bridge with the satchel containing the property stolen from Austin’s house, testified positively that defendants were the persons. His testimony, if believed, showed them in possession of the stolen property, and raised a presumption they were the burglars. How does it add to the force of his testimony, or even corroborate him to show: First, that on another occasion, another house was burglarized and property stolen from it which was found under the bridge ? The questions still would be, first, whether Burt and Yan Gaasbeck came to that spot with a satchel; and, second, whether that satchel contained the property stolen at Austin’s, and when those two facts were shown, it was immaterial how they came there or what was there. Showing another distinct burglary would not shed a particle of light upon either of these questions, while its tendency must necessarily have been to prejudice the defendants in the minds of the jury. If allowed, it raised another and distinct collateral issue which defendants were unexpectedly required to meet and disprove, and, if done, the court, instead of trying the question at issue, would have been engaged in determining another, and a collateral one, which when settled in one way or the other, could have no bearing upon the question at issue, except possibly to show, by proof of a specific act, the defendants were bad men ; just what the prosecution had no legal right to do, even by proof of general reputation,—which every man is expected always to be able to meet,—until the question of character was opened by the accused, (g. ) For the reasons lastly stated, such proof was not admissible to prove confed eration, even had the question been in the case. How does proof that A. and B. have property in their pos session stolen from C., prove they confederated to steal D.’s property \ Clearly, not at all, until the further fact is established that they have D.’s property in their possession, and when that is done, the confederacy is proven, without proof of the stealing of C.’s. ('ll.) The authorities cited by the district-attorney are not in point. In Regina v. Henly (cited Wills Cir. Ev., marg. p. 50), the thief and receiver were indicted together, and it was held that evidence of the finding of other stolen goods., from aught that appears stolen at the same time as those found with the receiver), was admissible. The case was probably after the English statute referred to by Best, swpra, was passed. In Rex v. Downie (cited Wills’ Cir. Ev., 50, supra), a carpenter shop was broken open, and tools carried off. The same night two counting-houses were broken open. The prisoners were found with property from one of them in their possession. In the counting-house from which these were taken was found a brown coat and other articles got from the other counting-house, and in that was found tools from the carpenter shop. Wills says: “Thus the recent possession of the articles stolen from Caíto & Co.’s proved that the prisoners were the depredators in that house; while the.fact of the articles taken from Davidson’s, having been left there, connected them with that prior house-breaking ; while again, the chisels belonging to the carpenter’s shop, found in Davidson’s, identified the persons who broke into that last house with those who committed the original theft at the carpenter’s. The prisoners were convicted of all the thefts.” It is apparent the prisoners were tried for all the thefts, and not for one, and evidence of the others given to convict them of that. The cases cited in 3 Russ., on Cr., 774-776, are all cases where but one, a single, transaction was allowed to be proved, (j.) It was said below that defendants offered testimony rebutting the charge of their being guilty of a burglary at Lorrimer’s, and therefore recognized the propriety of the ruling. After the point was ruled against them, what else could they do ? Resistance to the extent of a man’s power is certainly a new kind of acquiescence (3 Hill, 619, 620, 621; 4 Den. 93; 4 Barb., 545). Phillips v. People, will be found in 57 Barb., 353. There the horse and wagon were both' stolen same night and used together. The court says (p. 346): “The admission of evidence of the accused taking a wagon on the same night from another person is charged as error. I do not think, under the circumstances, that this was error. The taking of a wagon to use with the stolen horse* if they were used together, was evidence of a corroborating circumstance to the main charge, and would be used as evidence for that purpose, notwithstanding it was proof of another felony, also not charged in the indictment; and yet there may be a case of another distinct felony committed at another time, and under other circumstances, which it would be error to admit in proof."
    
    II. The indictment was not sufficient to justify a conviction of the defendants of burglary in the first degree. The statute (2 Rev. Stat., 668, §§ 10, 11, 12; 2 Rev. Stat., Edm. ed., 688) is as follows : “ § 10. Every person who shall be convicted of breaking into and entering, in the night-time, the dwelling-house of another, in which there shall be at the time some human being, with intent to commit some crime therein, either—1. By forcibly bursting or breaking the wall or an outer door, window, or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, 2. Breaking-in any other manner, being armed with a dangerous weapon, or with the assistance and aid of one or more confederates, then actually present, aiding and assisting ; or, 3. By unlocking an outer door by means of false keys, or by picking the lock thereof;—shall be deemed guilty of burglary in the first degree. § 11. Every person who shall be convicted of breaking into any dwelling-house in the day-time, under such circumstances as would have constituted the crime of burglary in the first degree if committed in the night-time, shall be deemed guilty of burglary in the second degree. § 12. Every person who shall be convicted of breaking into any dwelling-house of another, in the night-time, with intent to commit a crime, but under such circumstances as shall not constitute the offense of burglary in the first degree, shall be deemed guilty of burglary in the second degree.” The indictment was defective. It failed to allege either of the modes of entry set forth in the statute to constitute burglary in the first degree (Fellinger v. People, 15 Abb. Pr., 128; S. C., sub nom. People v. Fellinger, 24 How. Pr., 341; Gen. T., First District, affirmed in this court, December, 1863, 26 Id., 599). (a.) In that case it was held that an indictment for burglary in the first degree, which does not charge the entry to have been in one of the modes set forth in the statutory definition Of that degree of crime, is fatally defective, (b.) It is necessary to describe an offense in the language of the statute, or its equivalent (State v. Noel, 5 Blackf., 548; Howell v. Commonwealth, 5 Grat., 664; People v. Allen, 5 Den., 76; Commonwealth v. Tucker, 20 Pick., 356). (c.) In Dedieu v. People (22 N. Y., 180), Judge Dekio says : “If any of the ingredients contained in the statute definition are omitted, the indictment is fatally defective, and the defect is not cured by verdict.” (d.) This case was tried on the theory that the plaintiffs in error were indicted for the crime of burglary in the first degree. . The indictment was so indorsed. The question was raised on a motion to discharge the prisoners, and the judge charged that, under the indictment, they might be convicted of burglary in the first degree, (e.) The prisoners were sentenced as if convicted of burglary in the first degree. The statute reads as follows : “ Burglary, in the first degree, shall be punished by imprisonment in a State prison for a term not less than ten years.” Burglary in the second degree, not more than ten nor less than five years (2 Rev. Stat., 669, § 21; 2 Rev. Stat., Edm. ed., 689; Laws of 1869, 347 ; 6 Rev. Stat., Edm. ed., 452). (/.) The positions of the district-attorney below will be noticed in their order. (1.) The word “burglariously ” means nothing more than that the entry was unlawful. It does not indicate any “method” by which the entry was effected. (2.) The fact that the form in question has been used for a long time, proves nothing, except that the district-attorneys have given no attention to the subject. It is certain, however, that the case of People v. Fellinger (supra), holding such an indictment insufficient, was decided as early as 1862, and affirmed by this court in December, 1863. If .no attention has been paid to it, certainly the courts are not at fault. (3.) The authorities holding that on a common law indictment for murder, the accused may be convicted of the statutory offense, which includes only a portion of the cases covered by the common law, do not apply; for a common law indictment covers not only the cases provided for by the statute, but many others. No one will question the axiom that the greater includes the less, and that if one is indicted for the first degree of a crime, he may be convicted of a lesser. But reverse the case, and indict for a lesser degree—can the accused be convicted of the higher ? The statement of the proposition is its solution. In murder but one punishment, or degree of punishment, can be inflicted. In burglary the extent of punishment varies with the circumstances under which the crime is committed, and they should be alleged in order to show to what punishment the accused is subject. (4.) Burglary at the common law would not be burglary in the first degree as defined by our statutes. Burglary at common law, “Is the breaking and entering the dwelling-house of another in the night with intent to commit some felony within the same, whether the felonious intent be executed or not” (2 Whart. Cr. L., 6 ed., § 1531; 1 Russ. on Cr., 785; 2 East Pl. Crown, 481, Eng. ed. 1803, ch. 15, § 1). “It is sufficient that it be a dwelling-house or mansion, whether any person be therein at the time of the burglary or not. East says 2 East, Eng. ed. 1803, 496, ch. 15, § 11): “The.other point to be considered is relative to the inhabitancy, of which there must be some token, either by the present, or at least by the previous occupation of the owner, or some part of his family, in order to make the mansion an object of this high protection of the law. However, it is agreed by all, that a house wherein a man dwells for but a part of the year, or a chamber in one of the inns of the court, or of a college wherein any person usually lodges, may be called his dwelling-house, whether any person were actually therein or not at the very time of the offense. Yet in all cases the owner must have quitted the house animo rerertendi, in order to have it still considered as his mansion, when neither he nor any part of his family were in it at the time of the breaking and entering” (1 Hale Pl. Crown, 556; 1 Hawk. Pl. Crown, 289, Leach’s ed., 1795, ch. 38, § 18). Our statute as a prerequisite even to the commission of the oifense in any of the methods provided for by it, requires that there shall be in the dwelling-house, at the time of the breaking, “some human being,” thus requiring the existence of a fact not necessary at common law. Is, then, a common law indictment for burglary good under the statute, and does it show every fact necessary to constitute the crime? Clearly not. The indictment in the case at bar contains no allegations showing under what circumstances or how the crime was committed, and defendants were not apprised that any such facts would be proved on the trial. If not, it would not have been, and could not be made, burglary in the first degree. 
      They were tried, convicted and sentenced for an offense for which they were never indicted.
   By the Court.

We are of opinion the judgment of the supreme court must be affirmed, upon the ground that the indictment was defective as an indictment for burglary in the first degree. Such an indictment should allege the manner in which the breaking was effected, and show it was done by one of the methods prescribed by the statute. This is not like an indictment for murder, for the extent of punishment varies with the circumstances under which the crime was committed.

Judgment of the supreme court affirmed.  