5 Park. Cr. 57 | N.Y. Sup. Ct. | 1860
The conviction for petit larceny before the Court of Special Sessions, constituted no bar to the indictment for burglary. The two crimes are entirely distinct. The court before which the first conviction was had, had no. jurisdiction of the higher offense, and consequently a convic-tion or acquittdl for the burglary would have been void as coram non judice. As the prisoner could not have been convicted of the burglary before the Court of Special Sessions, he cannot, upon being arraigned and tried upon an indictment,
Again, the offenses are not the same. Upon evidence which would, sustain the indictment for burglary, the prisoner must have been acquitted of the misdemeanor. Unless the first of two indictments is such that the prisoner might have been convicted by proof of the facts contained in the second, an acquittal or conviction on the first is no bar to the second. (Commonwealth v. Roby, 12 Pick. R., 496; Burns v. The People, 1 Park. Cr. R., 182:)
The offenses (petit larceny and burglary) are distinct in their legal character, and in no case could a party indicted for the first be convicted of the second. (1 Russ, on Cr., 829.) The. acquittal or conviction on 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 Cr., 836; 4 Bl. Com., 336.)
The demurrer to the plea of former conviction for the same offense was properly allowed.
As the prisoner, after judgment upon the plea, elected to plead not guilty and go to trial upon that plea, the plea and demurrer and judgment thereon properly constituted no part of the record before us. But I have thought proper, nevertheless, to consider the question raised by the demurrer, and think it was properly disposed of by the Oyer and Terminer.
In the fifth count of the indictment, the prisoner is charged with having broken and entered “ the storehouse building of the Gulf Brewery, in which said storehouse building, goods, chattels, personal property, beer, ale and other valuable things were kept for use, sale and deposit, with intent,” &c. Upon the trial, the “Gulf Brewery” was proved to be a corporation, having its place of business at Utica, and the premises
The possession of these rooms by the corporation had been exclusive, and the alleged burglary consisted in breaking the door leading into these apartments, the prisoner having gained access to the basement through an open window into a hall or wood room, occupied for public purposes.
At common law, burglary could only be committed in respect of a dwelling house. A burglar is defined to be “ he that by night breaketh and entereth into a mansion 'house with intent to commit a felony.” It might be by breaking in from the outside, or, having gained an entrance, by breaking an inner door. (4 Bl. Com., 224, 226; 1 Russ, on Cr., 785, 790.)
The breaking into a shop or warehouse was not burglary, but if a barn, stable, or warehouse, were parcel of the mansion house, and within the same common fence, though not under the same roof or contiguous, a burglary might be committed therein. (4 Bl. Com., 225; 1 Russ, on Cr., 799.) .So there might be several mansions or dwellings under the same roof, and all accessible by the same outer door, and by a common hall. A chamber in a college, or an inn of court where each inhabitant hath a distinct property, is to all purposes the mansion house of the owner. (1 Hah P. C., 556.) So also is a room or lodging in any private house, the mansion, for the time being, of the lodger; if the owner doth not lodge in the house, or if-he and the lodger enter by different outer doors. (Id.) So also, a parcel of a dwelling house might be so separated from the rest as not to be the subject of a burglary. If I hire a shop, parcel of another man’s house,' and work or trade in it, but never lie there, it is no" dwelling house, and by the common law, no burglary can be committed therein;
It follows that, in this case, the rooms exclusively occupied by the “Gulf Brewery,” were the “storehouse” of that company, and, as they had the peaceable possession of the premises, their possession and property, were within the protection of the same, and whether they could have held possession against the public, is not material. The statute of this State prescribes the cases in which an individual being within or entering a house, not having entered burglariously, may, by breaking an inner door, be guilty of burglary. (2 R. S., 668, §§ 14,15.) By § 20 it is declared that the breaking of an inner door of a dwelling house shall, in no other case, constitute burglary. But this statute does not touch the case of separate dwellings under the same roof, and hence the case of People v. Fralick
Mullin, J., concurred; Morgan, J., dissented.