
    FELLINGER a. THE PEOPLE.
    
      Supreme Court, First District; General Term,
    
    
      Dec., 1862.
    Bueglaby in First Degree.—Indictment.—Defects cubed by Yeediot.—Effect of Beversal in Eeeoe.
    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 Statute definition of that degree of the crime, is fatally defective.
    
      It is only a defect in the form of an indictment not affecting the substantial rights of the prisoner, which is cured by verdict.
    Where a wrong judgment given against a prisoner is reversed on error, the court of reversal can neither give a new judgment against the prisoner nor send the case back to the court below for the proper judgment.
    Writ of error to New York General Sessions.
    John Fellinger, the plaintiff in error, was convicted of burglary in the first degree, by the New York General Sessions, October 9,1887, and sentenced to imprisonment, in the- state-prison, for life. In October, 1862,' the prisoner obtained a-writ of error. The court below returned the record. The material part of the indictment relied on' by the People, as charging the crime of burglary in the first degree, was as follows :
    That John Fellinger, late of the Eighteenth Ward of the city, &c., on, &c., “ with force and arms, about the hour of twelve o’clock in the night of the same day, at the ward, city and county aforesaid, the dwelling-house of Solomon Reinhardt, there situate, feloniously and burglariously did break and enter, while there were then and there human beings within the said-dwelling-house, with intent to commit some crime therein, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity.”
    The indictment contained a second count, for burglariously stealing specified gold coin, bank-notes, &c. The return contained only the indictment, indorsements, plea, and postea.
    
      Sidney H. Stuart, for the plaintiff in error.
    I. The indictment does not describe a burglary of the first degree, either by employing any of the language or terms of the statute in the description of that offence, nor by stating in any way the character, kind, or manner of the breaking, nor that the breaker was armed with a dangerous instrument, or that he was aided by a confederate ; and so it fails utterly to bring the accused within the danger of the law against that degree of the offence. The second count, for larceny, is immaterial to this question, as the conviction was upon this count for burglary in the first degree. To enter a dwelling-house at night-time, without a confederate then present, and without being armed with a dangerous weapon, by an unfastened door or aperture, or by gaining admittance by fraud or collusion, would constitute burglary in the second degree, and would be embraced by this indictment. There are other means and circumstances of burglarious entry than those so specially described in the description of the first degree. Rothing more can be proved than is averred. -When an indictment fails to aver the facts and describe the circumstances which a statute, in defining a felony, makes necessary ■ to a superior, as distinguished from an inferior degree, no proof can be supposed, by an appellate court, to have been heard by the court below, in support of the superior degree. It is necessary to describe an offence in the language of the statute, or its equivalent. (State a. Noel, 5 Blackf, 548; Howel a. Com., 5 Grattan, 664; State a. Brougham, Blackf., 307; State a. O’Brien, 1 Bailey, 144; Hamilton a. Com., 3 Penn., 142; State a. Foster, 3 McMas., 442; State a. Fleetwood, 14 Ib., 448; Com. a. Tucker, 20 Pick., 356; Hampton’s Case, 3 Grattan; People a. Allen, 5 Ben., 76; 1 Chitty C. L., ed. of 1841,281-283; Arch. C. P., ed. of 1846, 500.) This indictment does not charge a burglary in the first degree.
    II. The indictment alleges that the prisoner did break and enter the house, “with intent to commit some crime therein,” against the form of the statute, &c., but does not name, or in any way specify, what crime was intended. This is bad. “ The term 1 crime,’ in our statutes, means any offence for which any criminal punishment may, by law, be inflicted.” (2 Rev. Slat., 789, § 32.) There are many acts tending to a breach of the peace merely, which are punishable, and therefore “ crimes,” but the breaking of a house to perpetrate them, would not be a burglary. Suppose, that instead of charging an intent to commit some crime, this indictment charged in this count that the accused burglariously broke into the house and did commit “some crime therein,” without specifying whether it was a robbery or a simple assault only, would it not be bad ?
    ITT. The indictment is defective, in not giving names, description, or means, identifying the “ some human beings” in the house at the time of the burglary. A burglary of this degree is committed, not merely against the peace of the People and the premises of the master of the mansion, but also against the person of any inmate of the house at the time being. If there is no one within, there is no burglary of this degree, and it is, therefore, always as important to know who the person alleged to be within, is, to enable the defendant to show his absence at the time, if he can, as it is to know who the alleged master of the mansion is, to enable the defendant to disprove his residence.
    
      A. Oafcey Hall, for the People.
   By the Court.—Ingraham, P. J.

The prisoner was indicted for burglary, was tried and convicted of burglary in the first degree, and sentenced to the state-prison for life. The case comes before us on a writ of error.

The alleged error is in the indictment. This indictment charges that the prisoner, on a certain day, during the night of the same day, did break and enter the dwelling-house of one Reinhardt, while there were human beings within the said house, with intent to commit some crime therein.

The prisoner’s counsel contends that this indictment does not charge the crime of burglary in the first degree.

The statute defines this crime to be the breaking and entering into the dwelling-house of another, in the night-time, in which there shall be at the time some human being, with the intent to commit some crime therein, by forcibly bursting or breaking the wall or outer door, window, or shutter, or the lock or bolts of the door, or fastening of the window, or breaking in any other manner, armed with a dangerous weapon, or with the aid of one 'or more confederates, or by unlocking a door with false keys, or picking the locks, &e.

It will be seen, by comparing the allegations of the indictment with the provisions of the statute, that the pleader has complied with all the requisites of the statute in describing the offence, by stating those matters which generally apply to the offence of burglary in the first degree, and which must exist in each case to constitute this offence, but has omitted to state the mode of entry into the premises, which is also a requisite to make out this offence in the first degree.

The mode of breaking into the house, as stated in the statute, is just as necessary to be proved to make out the -offence, as that it was in the night-time, or that there was at the time a human being in the house; without proof of one of these modes of entering the house, the offence is only burglary in the second degree.

If the indictment only contained the first count, and a general verdict of guilty had been rendered, it could not for a moment be supposed that the prisoner was guilty of the highest grade of burglary, because in such a case, all the proof necessary to sustain the indictment would only make out a case of burglary in the second degree, and under such a verdict the punishment could only be for the minor offence. It does not alter the rule to say that on the trial the other ingredients necessary to make out the offence were proven. There is no proof that such evidence was furnished. The case comes before us simply upon the record, and that shows no evidence whatever. The jury on an indictment charging a lesser offence, have no right to find the prisoner guilty of the greater, because evidence was furnished sufficient for that purpose.

It is conceded that the indictment must describe the offence in the language of the statute. In doing so it is necessary to aver every affirmative matter which goes to make out the offence. It is not necessary to negative exceptions, unless in some special cases; but in such cases the exceptions do not make out the offence.

Oh.-J. Savage says: “ It is sufficient if all-the circumstances necessary to describe and render the charge intelligible in its legal requisites appear on the face of the proceedings.” (People a. Phelps, 5 Wend., 1. See, also, People a. Biggs, 8 Barb., 547.) And in People a. Allen (5 Den., 76), Beardsley, Oh.-J., says: “ An indictment upon a statute must state all such facts and circumstances as constitute the statute offence, so as to bring the party indicted within the provisions of the statute. If the statute is confined to ... . acts done at some particular time or place, the indictment must show, &c., that the time and place where the alleged criminal acts were perpetrated were such as to bring the supposed offence directly within the statute. If the statute creates an offence, or declares a common-law offence, when committed under particular circumstances, not included in the original offence, punishable in a different manner from what it would have been without such circumstances, the indictment should be drawn in reference to the provisions of the statute creating or changing the nature of the offence.” (People a. Enoch, 13 Wend., 159-173; People a. Allen, 5 Den., 76.)

And in People a. Didier (22 N. Y., 178), Denio, J., 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.” (See, also, People a. Davis, 4 Park. Cr., 67.)

The cases cited from the English books refer to the offence of burglary as it existed at common law, and under those cases the indictment might be sustained for the common-law of-fence ; but under our statute, different grades have been established, depending not only on the fact that there shall be a human being in the house, and that the offence shall be committed in the night-time, and with intent to commit a crime, but also connects with it the mode by which the burglary is effected, to be by breaking into the house either armed or with a confederate, or by the use of false keys. These or one of these acts are just as necessary to constitute burglary in the first degree, as that it should be a dwelling-house, or that a human being should be in it. The case of Thompson a. People does not lay down - any other rule. There the indictment alleged the breaking and entry into the house of one Eleanor B. Padgett,” and the objection was that it was not called a dwelling-house. The learned justice who delivered the opinion, put his decision as to the sufficiency of the indictment upon the ground that the word “ house” with us, in common parlance, meant dwelling-house. (Thompson a. People, 3 Park. Cr., 213.)

The offence has been so altered by our statute from the common law, that to find out the degree of the offence, it is necessary that the words or substance of the statute should be used in its description; and if not, then the indictment is fatally defective, if it is intended to charge burglary in the first degree, because it omits an essential part of the statutory description of the felony. (People a. Lohman, 2 Barb., 216-219.)

I think it is apparent that this indictment did not charge any higher offence than burglary in the second degree; and that unless some matters were proved which were not alleged in the indictment, the prisoner could not have been convicted of any higher offence.

It was urged, however, upon the argument, that these defects were cured by the verdict. Ho defect in substance can be so cured. It is only matters of form, not affecting the substantial rights of the prisoner, which can be disregarded after verdict. If it appear that the prisoner has suffered wrong by the verdict, no one can sustain the proposition that such wrong should be continued, because the jury by their verdict have inflicted it. Such is this case. The indictment only charged the offence of burglary in the second degree. The verdict found the prisoner guilty of the offence of burglary in the first degree. Certainly this is something more serious than error in matters of form. The defect is not cured by verdict. (People a. Didier, supra.) In the words of Judge Denio in the last case, the prisoner has been convicted and sentenced for an offence of which the Grand Jury never indicted him.

In People a. Powers (6 N. Y., 50), the defects in the indictment were held to be cured by the verdict; but those defects were in alleging generally that the court before which a prior conviction of the prisoner had taken place had jurisdiction of the subject-matter and of the prisoner, by stating that the court had competent power and authority to try and to convict him for the offence. The defect was in form merely, in not showing how the court had jurisdiction, instead of stating the same fact in general terms. Such an error was caused by the statute.

Under the present statute, classifying the crime of murder into the first and second degrees, a person might be indicted for murder in the second degree. This would be by omitting the allegation of its being premeditated, or being committed in the perpetration of some other offence. If, under such an indictment, the jury should find the prisoner guilty of murder in the first degree, the conviction could not be sustained, nor would the defect be cured by the verdict. The prisoner has no opportunity to make the objection before the verdict. The indictment was good for the lesser offence, and it is only when he is convicted of a higher grade of crime than that charged that he is injured. If the defect is cured by the verdict, then the prisoner has been damnified without any remedy. He could not object to the indictment before trial, because it was good for the lesser offence; and he could not object to the verdict for the defect in the indictment, because it would be cured by the verdict. Such a rule cannot be sustained.

The remaining question is what judgment we should render in reversing the proceedings of the court below.

In People a. Taylor (3 Den., 97), the rule is stated: If a wrong judgment be given against a defendant which is reversed on error, the court of reversal can neither give a new judgment against the prisoner, nor send the case back to the court below for the proper judgment. (Eex a. Eoome, 7 Ad. E., 58.) The prisoner was sentenced for life, when by law the offence charged in the indictment was to be punished by imprisonment not exceeding ten years. The judgment here rendered was erroneous, and must be reversed.

Leonard, J., concurred.

Peckham, J.—The opinion is sound. I concur, except that on the authority of People a. Hartung, in Court of Appeals, I go for a reversal, and for awarding a new trial. There the case went up on a bill of exceptions. The court held there was no error in the bill, but there was error in the judgment. Such is substantially this case.  