
    The People, Resp’ts, v. Daniel S. Richards, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April 11, 1887.)
    
    1. Criminal laws—Vault in cemetery is within provisions of Penal Code, §§ 498, 504.
    By Penal Code, § 498, it is declared that a person who, 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. By section 504 it is declared that the term “ building,” as used in the chapter in which both sections are contained, includes a railway car. vessel, booth, tent, shop, or other erection or enclosure Ueld, that a vault in a cemetery was a building, erection or enclosure within the meaning of the Penal Code, § 498.
    3. Same—Burglary in third degree—Penal Code, §§ 498, 499, 504.
    
      Held, that if the entry into the building, erection or other enclosure was with intent to commit a crime therein, the Penal Code was violated. Penal Code, §§ 498, 499, 504.
    3. Same—What is breaking within meaning of Penal Code, § 499.
    Held, that the breaking of a bronze gate to the vault was a breaking within the meaning of the statute. Penal Code, § 499.
    4. Same—Intent of entry is question for jury.
    The defendant having been convicted of burglary in the third degree-Held, that the question as to the intent of his entry was properly submitted to the jury.
    5. Same—When express malice need not be shown.
    When acts are prohibited by statute, and the evidence clearly shows the defendant has done them, it is unnecessary for the jury to find that he was actuated by express malice. It is enough to find that he was intentionally guilty 01 the acts.
    6 Same—Acts prohibited by Penal Code, § 647, Laws 1883, chap. 133.
    It is provided by Penal Code, § 647, that a person who, not being the owner thereof, and without lawful authority, wilfully injures disfigures, removes or destroys a gravestone or monument, etc., whether situated upon private ground or upon a cemetery, etc. is guilty of a misdemeanor. Held, that if the jury found that the defendant btoke in with the intent to remove a gravestone, and that the tablet or stone in frontof thecoftin'was a gravestone or monument, then they found that he broke in with intent to commit an aet prohibited by Laws 1883, chap, 133, § 8, as well as by Penal Code, § 647.
    7. Same—Forms of pleading existing prior to the passage of Code Crim Fro — Abolished by sec 373 of that act.
    The indictment alleged that the vault, building, erection or enclosure broken into in the night time by the defendant was the property of certain persons, naming some and describing others as persons to the grand jury unknown, heirs at law and legatees and devisees ot one deceased, naming him It was conceded that the title to the burial lot was iualiena ble and that the parties named as owners in the indictment were heirs, neither of the persons of whom they were therein named as such, or the person who originally owned it Held, that assuming that the variance between tire allegations of the indictment and the proofs of ownership would have been fatal under the law as it existed prior to the adoption of the Code of Criminal Procedure, all forms of pleading in criminal cases existing prior thereto were abolished, and the rules by which the sufficiency of pleadings was to be determined are prescribed by that Code. See Code Crim. Pro., § 373.
    8. Same—Erroneous allegation when not material—Code Crim. Pro., § 381.
    It is provided by Code Crim. Pro,, § 381, 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 iutended to be injured, is not material. Held, that the injury referred to in the indictment being of property belonging to private persons was in some sense an attempt to commit a private injury.
    9. Same—Amendment—Power of—Code Crim. Pro , § 393.
    Power is given to the court by Codé Crim. Pro., g 393, to allow certain amendments to obviate the difficulties presented by a variance between the allegations therein, and the proof, among other amendments, in tire name or description of any place, person or thing. Held, that the erroneous allegation in the indictment referred to the thing or property affected by the crime.
    10. Same—Amendment—Description of thing—Code Crim. Pro., gg 381, 393, 394.
    
      Held, that an amendment substituting the names of other persons as the heirs of the deceased person named in the indictment was within only one perfecting llie name or description of the thing, and that the court did not exceed its power in making it and disregarding the variance between the original allegations of the indictment and the proof. Code Crim. Pro . gg 381, 393, 394.
    11. Same—Conviction or acquittal—When good defense against subsequent indictment.
    An 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.
    
      12. Same—Title—Unauthorized acts
    
      Held, that the lather and administrator of the wife of the person deceased, named in the indictment, had no title to the stone monument, slab or tablet in front of the coffin of the deceased, and that the acts of the defendant in removing the same derived no authority fioni his permission
    13. Same—Immaterial error must be disregarded—Code Crim Pro, , £ 042
    The court is requested by Code Crim Pro., £ 542, to disregard technical ernes or defects or exceptions which do not a fleet the substantial rights of the parties
    Appeal from a judgment entered in Broome county upon a verdict of conviction taken at the oyer and terminer in that county, of burglary m the third degree, committed in October, 1884, by breaking and entering the Phelps vault, in Spring Forest Cemetery, in the city of Binghamton.
    
      J. McGuire, for app’lt; George B, Curtiss, district attorney, for the people.
   Hardin, P. J.

Section 498 of the Penal Code defines burglary in the thiul degree, and declares “A person who either first, 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 594 of the Penal Code, and declared to include a “railway car, vessel, booth, tent, shop, or other erection or iuclosure.” The last section is new, and read in connection with 498, gives to the latter section the same significance as though it read building or other erection or inclosure.”

We think no error was committed by the trial judge in holding that the defendant had entered a building, erection or inclosure which was named in section 498, defining burglary.

People v. McClosky (5 Parker, 57), decided under the Revised Statutes, held that a room in the basement of the court house, at Utica, occupied by the gulf brewery, was a building or “ store house,” and that breaking into the room was a violation of the statute against burglary in the third degree. See 2 R. S., 669, § 17

Under the Revised Statutes, the breaking into “a building within the curtilage of a dwelling house, hut not forming a part thereof, or, second, 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 (§10, 2 R. S., 669), 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 a felony was intended in the indictment for burglary in the first degree. Mason v. The People, 26 N. Y., 200.

But 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 inclosure,” is 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 felony’’shall be shown, provided the intent to commit any other crime is averred and established. Penal Code, <;§ 498, 499, 504.

A breaking may be made by opening a door tightly closed, whether locked or latched. Tickner v. The People, 6 Hun, 657, Penal Code, § 501.

The evidence shows the 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 that question was proper for the jury upon all the evidence before them, and that we should not disturb their verdict upon that question. Sections 3, 4, 5, 6, 647, 675, Code.

The stone in front of the casket was broken, the top of the casket and also the end of it, and the lead covering over the top of the casket was broken. The cement covering 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 testified: “Took a bar to enable him to remove obstructions off the box—the cement and gum-mastic; it was with that intent I took it.”

When acts are prohibited by statute, and the evidence clearly shows the defendant had done them, it is “ wholly unnecessary for the jury to find that the defendant was actuated by express malice.” It is enough to find that he was intentionally guilty of the acts.- The People v. Reed, 47 Barb., 235.

If the jury found that the defendant broke in with intent to remove a “grave stone,” 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 1 ‘ grave stone," or " monument, ” then they found that he broke it with intent to commit an act or acts prohibited by section 8 of chapter 133 of the Laws of 1883, as well as by section 647 of the 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 G. 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, wilfully, secretly and unlawfully to deface, disfigure, remove and destroy a grave stone, 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 G. Phelps, Francis A. Phelps and Lizzie S. Phelps and others, to the said grand jury unknown, who áre 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 concession upon the trial it appeared that the Spring Forest Cemetery was incorporated in 1853, under chapter M3 of the Laws of 1847.

That the association by its deed August 13, 1862, conveyed to Sherman D. Phelps, father of Robert 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 life-time; that the 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 m 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,QUO, 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 m the indictment are not heirs at law of Robert 8. Phelps,” and it appeared that they are not heirs at law of Sherman D Phelps. The defendant moved for his discharge upon the ground of variance in the allegations m 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 the defendant excepted.

Then the district attorney moved to amend the indictment by “striking out therefrom the names of Francis A. Phelps, William Gr. Phelps and Lizzie 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 ttie 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 the 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. It 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 Code of Criminal Procedure. 2 Bishop on Criminal Procedure, §§ 137 and 138, p. 64; Quinn v. The People, 71 N. Y., 562; Biggs v. The 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 the pleadings is to be determined are 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. 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 amendments to obviate the difficulties presented by a “variance between the allegations therein and the proof,” viz.: First, in respect to time; or second, 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 way of further description of it the pleader stated that it was owned by or belonged 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 the three persons named 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 1 ‘ 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, as 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, 1 ‘ but the heirs at law ” bore twelve other names.

The description of “the persons ” of the heirs at law was 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 the 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 persons seduced, the name in the indictment of Mary Olyphant was changed by the amendment to Mary Oliverfc. It may be further observed, that in the allegation 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 the indictment. That in that indictment a demurrer had been interposed and sustained and defendant discharged.

The grounds of the demurrer were, viz.:

First. For joining “ in one count separate and different offenses, that is to say, the charge of a commission of a felony with the charge of the commission of a misdemeanor.” t

That an injury to a tomb, catacomb or vault, or any part of the same, is a misdemeanor, an injury to real and personal property, when the value of the same is twenty-five dollars, and where the punishment is not specifically prescribed by statute, is a felony.”

Second. That the facts stated in the indictment do not •constitute a crime, for willfully injuring and destroying the personal property of another, when the punishment is not specifically prescribed by statute.

Third. “That the personal property does not belong to the heirs at law or devisees of Robert S. Phelps, deceased.” There was not demurrer upon the ground “that the facts stated do not constitute a crime,” which ground might have been taken. Code of Criminal Procedure, § 323.

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. ” Code of Criminal Procedure, § 321".

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; 4 Blk. Com., 336; opinion of Allen, J., in People v. McClosky, 5 Park. Crim. Rep., 59.

It is now provided by section 506 of the Penal Code, viz.: “A person, who having entered a building under such circumstances as to constitute burglary in any degree, commits a crime therein, is punishable therefor, as well as for 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 intended 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 the defendant Richards had no express 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 not title to the vault, or 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. Sharpe, 40 Eng. Law and Eq., 581; Snyder v. Snyder, 60 How. Pr. Rep., 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.” Schrumpf v. People, 14 Hun, 10; People v. Gonzalez, 35 N. Y., 49; Stokes v. People, 53 id., 165; Coleman v. People, 58 id., 555; People v. Burns, 33 Hun, 300; Cox v. The 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.

Boardman, J., concurs; Follet, J., not voting.  