
    SUPREME COURT—APP. DIVISION—FIRST DEPT.,
    March 17, 1911
    PEOPLE v. JOHN MILLER.
    (143 App. Div. 251.)
    (1) Conviction for offense less than charged—Code Crim. Pro., §§ 444, 445.
    Sections 444 and 445 of the Code of Criminal Procedure, allowing a conviction for a lesser crime than that charged in an indictment, did not introduce a new rule of criminal law, but are declaratory of the common law.
    (2) Same—At Common Law.
    At common law a prosecution did not fail because all the alleged facts and circumstances were not proved, if such as were proved made out a crime, though of an inferior degree.
    ( 3) Same.
    Statutes declaratory of the common law should be construed as near to the rule and reason of the common law as may be, and it is immaterial whether, for the convenience of codification, the rule has been stated in two sections instead of one.
    (4) Same—Conviction for Attempt to Commit Larceny Under Indictment for Burglary.
    A defendant indicted for burglary in the third degree under section 404 of the Penal Law may be convicted of entering a building with the intent to commit a felony, larceny or malicious mischief, these being misdemeanors only, where the indictment charged and the proof established all acts constituting the minor offense.
    (5) Same—Not Necessary that Name op Crime be Stated Correctly, It is not necessary that an indictment state the name of the crime? correctly in the accusatory clause if the specific allegations of fact are sufficient, for the latter in such case control the character of the. crimes presented by the indictment.
    Appeal by the plaintiff, The People of the State of Yew York, from, an order of the Court of General Sessions of the Peace in and for the county of Yew York, bearing, date the 28th day of November, 1910, and entered in the office of the elerk of said court, arresting judgment.
    
      Robert S. Johnstone, for the appellant.
    
      Lorlys Elton Rogers, for the respondent.
   Scott, J. :

Appeal by the People of the State of Yew York from an order of the Court of General Sessions of the Peace in and for the county of Yew York, arresting .a judgment of conviction of the above-named defendant of the crime of unlawfully entering-a building with intent to- commit a larceny therein. The defendant was indicted for the crimes of burglary in the third-degree, grand larceny and receiving stolen goods-, each being-charged as a second offense. At the close of the entire case the court, on the defendant’s motion, withdrew from the consideration -of the jury the charge of burglary, grand l-arceny and receiving stolen property .as charged in the indictment, but - submitted the case to the jury with instructions that defendant might he found guilty of an attempt to commit petit larceny or-of -an unlawful entry, both as a second offense. The defendant objected to the submission of the crime of unlawful entry on the ground' 'that it was no degree of burglary, w'as a separate and distinct offense, and was not a crime the commission of which was necessarily included in that with which he was charged in the indictment. The court overruled the objection and the defendant excepted. The jury convicted the defendant of the crime of unlawfully entering a building with intent to commit a larceny therein as a second offence. Thereupon, a motion in arrest of judgment was made, and the order appealed from was entered. There are two sections of the Code of Criminal Procedure permitting the conviction for a lesser crime that that charged in an indictment. They read as follows : § 444,.. Upon an indictment for a crime consisting of different degrees the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. * *

“ § 445. In all other oases the defendant may be found guilty of any dime the commission of which is necessarily included in that with which he is charged in the indictment.”

These two; sections were not enacted with any purpose to introduce a new rule of criminal law, hut' were both declaratory of the rule which had always obtained at common law, which was that the prosecution never was allowed to fail because all the alleged facts and circumstances were not proved, if such as .were proved made out a dime though of an inferior degree. As was said by Judge Denio in Dedieu v. People (22 N. Y. 178) : It was a well-established principle [at common law] that where an offense was increased in grade, or as to the measure of punishment, by the existence of a particular circumstance or a special intent on the part of the accused, and an indictment was found setting forth the circumstances or intent which rendered the act more highly criminal, if the prosecutor failed to prove that part of the case, he was still entitled to a conviction for the simple offense ; and the improved allegations were not allowed to prejudice the case proved. They were regarded as surplusage.” (People v. Jackson, 3 Hill, 92 ; People v. Snyder, 2 Park. Cr. Cas. 23; People v. McDonald, 49 Hun, 67.) Section 444 was first enacted (in slightly different form) in the Revised Statutes of 1829 (2 R. S-. 702, § 27). As explained in Dedieu v. People (supra), it was adopted, not to establish a new rule of law, but, out of abundant caution,” to' insure- the application of the well-established common-law rule to the new system of nomenclature adopted 'by -the revisers whereby certain offenses of the same generic character were designated numerically as different degrees of the same crime. Since each of these degrees constituted a separate crime it was apprehended that it might be claimed that a person indicted for one degree of crime could not be- convicted of -any other, although it should be an inferior degree of the same generic crime. If it bad been so held it would have produced an inconvenience which had not existed at common law.

Section 445 was first enacted with statutory form in the present Code of Criminal Procedure, but it too- was simply a declaration for the rule which had always prevailed at common law.

' Being merely declaratory of the common law these statutes are to he constructed as near to the rule and reason of the common law as may he (Suth. Stat. Const. § 290), and we are not to limit or lessen their application because, for convenience of codification, the rule has been stated in two sections instead of one. There is, therefore, no force in the suggestion that section 445 is applicable only to offenses not divided into' degrees ; that to such offenses -only section 444 is applicable and that under it a conviction can he had only for the crime charged or of one of the inferior “ degrees ” thereof and not a misdemeanor consisting of some of the elements going to make up the crime charged. Such was not the common-law rule in this State (see cases cited supra), and the statute, as we consider, has not changed the common law in this regard, and as has been said the enactment of the rule in statutory form was not, designed to limit its application. The learned district attorney argues, with! much- plausibility and force, that the defendant’s conviction may. be upheld under both of the .section above quoted, maintaining that the misdemeanor known, as unlawful entry is in effect an inferior degree of the generic offense of burglary, and is included in the Penal Law in article 38 entitled “ Burglary.” Hence it is said that section 444 is applicable. However this1 may be, and we do not pass upon the contention now, we prefer to rest our decision upon what we deem the safer and surer ground that the conviction can certainly be upheld under section 445.

The crime of burglary in the third degree for which defendant was indicted is thus defined : “ A person who, : 1. With intent to commit a crime therein, bréales and enters a building, or ia room, or any part of a building ; * * * Is guilty of hurglary in the third degree.” (Penal Law, § 404).

The crime of which the defendant was convicted is thus defined : “ A person who, under circumstances or in a manner not amounting to, a burglary, enters a building, or any part thereof, with, intent to commit a felony or a larceny, or any malicious mischief, is guilty of a misdemeanor.” (Penal Law, § 405.)

It will be observed that there are two, important differences in these -definitions. So far as concerns the commission of the act a breaking as well as an entry is necessary to constitute the crime of burglary, while entry alone is sufficient for the misdemeanor. As to -the1 intent with which the act is done, however, the definition of the misdemeanor i narrower than that of the felony. Por the latter it -is sufficient if the intent he to commit any crime, while to constitute the misdemeanor the intent must be to commit one of the crimes mentioned in section 405. Consequently there may well be eases wherein the elementis necessary to establish the crime of burglary in the third degree, outside of the breaking, would not suffice to constitute an unlawful entry, because the intent of the entry, while criminal, would not he to commit one of the crimes specified in section 406. And this suggests the principal question raised by the appeal, and: that is whether the words “ necessarily included ” in section 445 of the Code of Criminal Procedure should be so construed as to require that the lesser offense for which a conviction may be had must be so included in the statutory definition of the crime for which the defendant is indicted, or must he included in the acts set forth in the indictment as constituting the crime with which the defendant is charged. If the former construction he the true one and the acts constituting the lesser crime must be found in the statutory definition of the greater one, it is manifest that a defendant who has been indicted for burglary in the third degree can never be convicted of 'an unlawful entry not only because an intent to commit any crime will not sustain a charge of unlawful entry, while it will sustain a charge of burglary, but also because burglary in the third degree may also be predicated, under subdivision 2 of section 404, upon acts which do not include an entry at all, but a breaking out after the commission of a crime.

On the other hand, if the latter construction he adopted and it is sufficient that the acts constituting the lesser crime be charged in the indictment and duly proven, a defendant charged with the crime of burglary in the third degree may be convicted as this defendant was, of an. unlawful entry. In this view the form of the indictment becomes of the first importance. The conviction in the present case was had under this construction of the statute, and does charge the defendant with- the commission of all the acts necessary to establish the crime of which he was convicted.

It alleges as follows : That the defendant “ with force and arms, a certain building, to wit, the building of one Louis A.; Fehr there situate, feloniously (and burglariously) did (break into and) enter, with intent to. commit some crime therein, to wit, with intent the goods, chattels and personal property of the said Louis A. Fehr in the said building then and there being, then and. there feloniously (and burglariously) to steal, take and carry away, against the form of the statute * Disregarding the words in the parentheses., which serve to distinguish the charge 'as one of burglary, there remains an adequate and complete description of the misdemeanor, including an entry with intent to commit a larceny. We axe of the opinion that it is sufficient to sustain a conviction for the lesser offense if the acts constituting it are necessarily included in the acts charged in the indictment as constituting the graver offense. An indictment must contain “ a plain and concise statement of the act constituting the crime without unnecessary repetition ” (Code Crim. Proc. § 275), and it is. of no moment if the name of the crime be incorrectly stated in the accusatory clause of the indictment if the specific allegations of facts are sufficient, . for the latter in .such ease control the character of the crimes presented by the indictment. (People v. Sullivan, 4 N. Y. Cr. Rep. 193.) It is the acts charged1 which constitute the crime. (People v. Seeley, 105 App: Div. 149 ; People v. Peckens, 153 N. Y. 576, 12 N. Y. Crim. 433.) The purpose of requiring the acts to be set forth in the indictment is that the accused may know what he is called upon to1 meet, and if no more is proved against him than is so charged, even if all be not proven, and the acts, which are proved constitute a lesser crime than that for which he was indicted, no injustice is done if he be convicted of the lesser charge. Speaking of section 445 of the Code of Criminal Procedure, it wias said in People v. McDonald (49 Hun, 67) : “Under this rule an accused party cannot be surprised upon this trial, for the people cannot prove . any fact not alleged, nor can he be convicted of any crime that the facts proved do not establish.” In Dedieu.v. People (supra), Judge Denio thus explains the application at common law of the rule now incorporated in sections 444 and 445 of the Code of Criminal Procedure: “In all these cases the indictment includes a true description of the act, done, and all the circumstances defining the minor offense, and it adds to these the further circumstance which, if proved, would raise the offense to the higher grade. How, if the latter are not proved, there is yet no- variance. As far as the proof goes it conforms to the allegations. Simply, the whole indictment is not proved; but the principle applies, that it is enough to- prove so much of the ’ indictment as show® that the defendant has- committed a substantial crime therein specified.” The application of the rule respecting a conviction for a lesser crime than that charged is well illustrated in some of the oases in which the rule has been held not to, 'apply, in each of which it will be found' upon examination that the indictment failed to charge the acts necessary to establish the minor offense, and it was for this reason that it was held that no- conviction of the lesser crime could be had. (Dedieu v. People, supra; People v. Meegan, 104 N. Y. 529.) ,Our conclusion is that a defendant may he found guilty of any crime the commission -of which is necessarily included in the -acts stated in the indictment as constituting the crime with which he i-s charged therein. This we understand to have been the rule at common 1-aw, of which the sections we have quoted from the Code of Criminal Procediure are merely declaratory.

The order apealed from must be reversed and the judgment upon the defendant caried into effect.

Clarke, McLaughlin, Miller and Dowling, JJ., concurred.

Order reversed and judgment directed to be carried into effect. Settle order on- notice.

NOTE ON CONVICTION FOR LESSER OFFENSE,

(See note, Vol. 5, p. 115.)

GENERALLY.

A jury has no right to convict a defendant of a lesser degree of crime simply because it doubts whether he committed a greater degree, but the elements which constitute such degree must themselves be proved. People v. Downs, 56 Hun, 6.

The jury should first consider and determine whether the defendant is guilty of the crime charged, and if not so found, should consider lesser degrees. People v. Willson, 109 N. Y. 347.

Upon an indictment for, a crime, consisting of different degrees, the jury may, by a general verdict, find the defendant not guilty of the degree charged in the indictment, and guilty of any of the inferior degrees. People v. Taylor, 3 N. Y. Crim. 297.

Where the defendant upon a trial on an indictment for assault in the first degree, is convicted of assault in the third degree, and the appellate court reverses such conviction and orders a new trial, the verdict operates as an acquittal of the higher offense, but the defendant may again be tried on the indictment and convicted thereunder of the lesser offense. People v. Palmer, 5 N. Y. Crim. 101.

Proof given under an indictment for manslaughter in the first degree, field not to justify a verdict of a different degree of manslaughter. People v. De Garmo, 73 App. Div. 46.

INDICTMENT.

Amendment of 1900 does not apply to indictment found before, but tried after, it became operative. People v. Cox, 67 App. Div. 344, 16 N. Y. Crim. 248.

Indictment in common-law form sufficient, notwithstanding the statute, and permits a conviction for the offense charged in any degree, corresponding to the evidence. People v. McDonnell, 92 N. Y. 657, 1 N. Y. Crim. 368.

An indictment for an attempt to commit a crime is insufficient unless, it avers facts showing the particular crime which was attempted. People v. Kane, 161 N. Y. 389, 14 N. Y. Crim. 303.

Indictment need not allege facts or circumstances, which, if proven, would constitute the lesser crime. These are matters of evidence for the benefit of the accused. People v. McDonnell, 1 N. Y. Crim. 366.

The name of a crime in an indictment is a mere matter of form, which may or may not be stated,, and if stated incorrectly it does not vitiate or control the character of the crime as against specific allegations of fact in the indictment constituting it; accordingly, where the crime was designated in the indictment as assault in the second degree and the facts alleged constituted assault in the first degree; held good as an indictment for assault in the first degree, and therefore sufficient to uphold a conviction for assault in the second degree. People v. Sullivan, 4 N. Y. Crim. 193.

PARTICULAR CRIMES.

Under an indictment for burglary defendant may be convicted of an attempt to commit the burglary charged. People v. Lawton, 56 Barb. 126; or of larceny. People v. Snyder, 2 Park. 23.

On an indictment for arson in the first degree, there may be a conviction for attempting to commit arson in any of the lesser degrees. People v. Long, 2 Edm. Sel. Cas. 129.

On the trial of an indictment charging assault in the first degree, a conviction of assault in the second degree is an acquittal of the offense charged. People ex rel. Young v. Stout, 81 Hun, 336.

Conviction of murder in the second degree, under indictment for murder in first degree. People v. Thompson, 41 N. Y. 1.

Conviction of manslaughter in the second degree, under indictment for murder in the second degree. People v. Austin, 63 App. Div. 382

The amendment of 1900 permitting the jury to convict of the crime of assault upon a trial for murder or manslaughter, is only applicable when the act complained of is not proven to be the cause of death. People v. Wheeler, 79 App. Div. 396, 17 N. Y. Crim. 205.

Defendant may be convicted of manslaughter under an indictment charging murder in the first degree, although statute requires indictment for all crimes save murder to be found within five years. People v. Dowling, 1 N. Y. Crim. 529.

On a trial for grand larceny, first degree, jury may convict of grand larceny, second degree. People v. McCallam, 3 N. Y. Crim. 199; or of petit larceny. People v. McTameney, 1 N. Y. Crim. 437.

In view of the fact that homicide may constitute either murder, manslaughter, excusable homicide or justifiable homicide, and that murder and homicide are each subdivided into two degrees, and in view of the provisions of the Code of Criminal Procedure contained in sections 390 and 444, it is error for a judge presiding at the trial of an indictment for murder in the first degree to refuse to instruct the jury as to the various degrees of homicide, and to charge, as a matter of law, that the defendant was guilty of murder in the first or second degree or of nothing at all. People v. Young, 96 App. Div. 33.

CHARGE TO JURY.

When requested to charge that if doubt existed in the mind of the jury as to the grade of the offense committed, it was their duty to convict of the lesser, the court said that it had told the jury that the prisoner was entitled to all reasonable doubt. Held sufficient. Abbott v. People, 86 N. Y. 460.

Where upon the trial of an indictment for burglary, the breaking which is the essential element of that crime, was established by uncontradicted evidence; held that it was not error for the court to refuse to charge the jury that they might convict of a misdemeanor, under the provisions of the penal code, declaring a person guilty of a misdemeanor who enters a building under circumstances, or in a manner not amounting to burglary, for the purpose of committing a felony, larceny or any malicious mischief. People v. Meegan, 104 N. Y. 529.

The court is not required, upon the trial of an indictment for murder, to submit to the jury the question whether the defendant was guilty of assault in any degree. People v. McDonald, 159 N. Y. 309, 14 N. Y. Crim. 104.  