
    The People, Resp’ts, v. Thomas Hagan, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    1. Burglary—What is a “ booth ” within Penal Code, § 504.
    A fruit stand, erected on a street against a building was about five feet in height and in length, and had a window and door. Upon the trial of an indictment for breaking and entering this structure, Held, that it was a “ booth ” within the meaning of § 504, Penal Code.
    2. Same—Variance between indictment and proof.
    Where an indictment charged the property taken as of one Musso, and this person stated upon the trial that his name was Musachio, Held, that the variance might under Code Grim. Pro., § 293, be amended and could be disregarded under §§ 684, 542 of the same Code.
    Appeal from a judgment of the court of general sessions of the county of New York, convicting the defendant of the crime of burglary in the third degree.
    
      Purdy & McLaughlin, for app’lt; McKenzie Semple, for resp’ts.
   Daniels, J.

The defendant was indicted with two other persons for breaking and entering, in the night time, the booth of the complaining witness, with intent to commit a crime therein, and stealing therefrom certain articles of personal property then being therein. The booth was shown to be a wooden structure about five feet high and four or five feet in length, having a window and a door, and it was erected as a fruit stand against premises situated at the southwest corner of Twenty-ninth street and First avenue. The objection was taken that this structure was not a booth within the meaning of that term, as it had been used in the statute. By § 498 of the Penal Code it has been made burglary in the third degree to break into a building, or room, or any part of a building, with intent to commit a crime therein. And by § 504 of the same Code the word building has been defined to include a railway car, vessel, booth, tent, shop, or other erection or inclosure. The term booth has not been further or more specially defined. And its significance, therefore, must be found in the ordinary understanding or acceptance of the word. And that has been stated by Webster to be a house, or shed, built of boards, boughs of trees, or other slight materials, for temporary occupation. This was a structure of the first description, and therefore legally designated in the indictment as a booth.

It was charged to be the property of Griovanni Musso, while the complaining witness stated his last name to be Musachio, and this has been objected to as a fatal variance between the indictment and the proof. But as such a variance has by § 293 of the Code of Criminal Procedure been made amendable on the trial, and as it could not in any respect have prejudiced the defendant, it did not render the indictment invalid, and the court could under § 684 disregard it, as that was done upon the trial. And on the appeal it has been further declared by § 542 of this Code that the court must give its judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. This was no more than such a defect, and can now be of no avail to the defendant.

The evidence was sufficient to submit the question of the defendant’s guilt to the jury. It was to the effect that these three persons were found by a police officer directly in the vicinity of this structure, which had been securely closed but had then been broken open. As the officer approached two of them walked away and the defendant went behind it. That was about thirty minutes after midnight. Onp of the two dropped a blacking box and the other a saw, which was identified by the complaining witness as the saw that he had left in the building. And it was also stated that a blacking box had been taken from the building. This evidence was sufficient to indicate that these three persons were acting in concert, and, as one of them had part of the property taken, that they had committed the burglary. It was sufficient to justify the submission of the case to the jury.

That part of the charge has been complained of in which, the recorder stated that the evidence, if it is true, establishes the fact that there was a breaking and entering into this booth, and a crime was therein committed, to wit, the crime of larceny. But if this was putting the case too strongly against the defendant, he was immediately relieved from the effect of it by the further remark that “ the question is whether that evidence establishes to your satisfaction that there was a breaking of these premises, an entry into the premises and a crime committed in the premises so broken and entered. It seems to me that there ought to be no difficulty in arriving at a conclusion upon that part of the case. It is, however, a matter for you to determine.” That committed the matter fully to the disposition of the jury, and removed all ground that might have existed for objection to what had been previously stated.

The remark that the case was one of burglary in the third degree, or not guilty, did not harm the defendant, as long as the jury found him to have committed that crime. It gave him a chance of acquittal which he would not have had if his guilt of larceny or of receiving stolen property had also been included. If the jury had not found him guilty of burglary in the third degree, and either of these other inquiries had been submitted, they might have found him guilty of one of the other offenses. But that they were not allowed to do. If they did not find he had committed the higher offense, his acquittal directly followed. And that was a benefit and not an injury to him.

The case in all respects seems to have been properly disposed of, and the judgment should be affirmed.

Van Brunt, P. J., and Lawrence, J., coricur.  