
    Case 2 — Indictment fob Burglary.
    Sept. 20.
    Commonwealth v. Hurd.
    APPEAL PROM JEFFERSON CIRCUIT 'COURT, CRIMINAL DIVISION.
    Indictment Dismissed and Commonwealth Appeals.
    Burglary — Degrees of Offense.
    Held: Under an indictment for burglary there may be a conviction, of the offense of housebreaking, that being a degree of the offense charged.
    R. J. BRECKINRIDGE, Attorney General, PRANK PARSONS, Commonwealth’s Attorney, and WALTER DARBY, Attorneys FOR APPELLANT.
    1. The court has no right to sustain a motion for a peremptory instruction to acquit where there is some evidence tending to sustain the indictment.
    2. The offense of housebreaking is included in an indictment for burglary.
   Opinion of the court certified by

JUDGE GUPPY.

The appellee, Hurd, was indicted in the Jefferson Circuit Court for the crime -o-f burglary; and at the conclusion of the testimony for the Commonwealth the defendant moved -the court to instruct the jury peremptorily to find him not guilty, upon the grounds that the plaintiff had not proved that the breaking of the ho-use had occurred in the night time. The plaintiff objected, and also moved the court to instruct the jury as to the crime of burglary, charged in the indictment, and for the crime of housebreaking included in the indictment. The court overruled plaintiff’s motion, but sustained the motion of the defendant, and instructed the jury to find the defendant not guilty; and from that judgment and the rulings of the court below, -the Commonwealth prosecutes this appeal.

It seems to us that the evidence introduced entitled the Commonwealth to a submission of the cause to the jury, as to the offense named in the indictment. We are also of opinion that the evidence clearly authorized a submission as to the offense of housebreaking, which is a degree of the offense of burglary. See section 262-263, Criminal Code Practice. Presuming that the jury returned a verdict of not guilty, and that defendant has been discharged, we do not undertake to reverse the judgment of the court below; but this opinion is ordered to be certified to the circuit court, as prescribed by law.  