Thompson v. People

3 Park. Cr. 208 | N.Y. Sup. Ct. | 1856

Mason, J.

The defendant was indicted under the twelfth section of article two, part four, chapter one of the Revised Statutes, which enacts that “ every person who shall be convicted of breaking into any dwelling-house in the'nighttime, with intent to commit a crime, but under such circumstances as shall not constitute the offence of burglary in the first degree, shall be deemed guilty of burglary in the second degree.” (2 R. S., 668, § 12.) There is but one count in the indictment in this case, which charges “that Richard Thompson, late of the town of Oxford, in the county of Chenango aforesaid, on the fifteenth day of October, one thousand eight hundred and fifty-four, with force and arms, about the hour of twelve o’clock in the night of the same day, at the village of Oxford, in the county aforesaid, the house of Eleanor B. Padgett, there situate, feloniously did break and enter, with intent, the goods and chattels and property of the said Eleanor B. Padgett, in the said house then and there being, then and there feloniously and burglariously to steal, take and carry away the goods, chattels and property of the said Eleanor B. Padgett, in the said house then and there being, to the great damage, &c., and against the form of the statute,” &c.

The defendant was tried in the Oyer and Terminer, and was convicted of burglary in the second degree. No question was raised upon the trial as to the sufficiency of the indictment, or for any defect therein. The defendant was sentenced to imprisonment in the state prison for five years. No motion, in arrest of judgment or otherwise, was made in the court below. No bill of exceptions has been made, but the defendant has procured a writ of error, and has caused the indictment to be certified to this court, with the clerk’s minutes of the trial, showing the empanneling of the jury, the verdict of guilty, and the sentence of the court. There is no record returned by the clerk. The defendant now asks a reversal of the judgment, on the ground that the indictment does not charge a criminal offence; that it is defective in omitting the word “ dwelling” before “house;” that the words “dwelling-house” must be used in charging the offence of burglary under the' statute.

It is not necessary to follow the precise language of the statute in charging the offence in the indictment. Using words of equivalent import to those in the statute is sufficient. (Whart. Am. Cr. L., 133, 137; Rex v. Fuller, 1 B. & P., 180.) The indictment in the case at bar charges a criminal offence under this statute, and the offence is sufficiently described to sustain the conviction. It has always been held sufficient to use the word “mansion,” instead of “dwelling-house,” in charging the offence. (Barb. Cr. L., 103; Bac. Abr., tit. “ Burglary," letter “ E;" Serg. & Rawle, 199; 2 Arch. Pl., 330, note, 1st ed.) This is because the word “mansion” means a dwelling-house or place of residence. The word “house,” with us, is sufficient, for the same reason; because, in common parlance, it has the same signification. The word “house” means “a building or edifice for the habitation of man; a dwelling place, mansion or abode for any of the human species.” ( Webster.) It does not mean a wood-house, hen-house, ash-house, hog-house, corn-house, warehouse, &c. It means, in its primary and common acceptation, an edifice for the habitation of man, a dwelling place or abode for the human species, a dwelling-house. It is sufficient if the indictment contain enough to inform the defendant and the court of the precise nature of the charge. (The People v. Rynders, 12 Wend., 431.) The statute in regard to arson in the first degree uses the same term, “ dwelling-house,” and under that statute it is held sufficient to describe the building in the indictment “the house of A. B.,” without saying “ dwelling-house.” (Barb. Cr. L., 55,1st ed.; id., 69, 2d ed.; 1 Hall, 567.) But again, the objection now made to this indictment comes too late to avail the prisoner after conviction and sentence. (2 Seld., 50, 52; 2 R. S., 728, § 52.) The indictment is good if it contain the substance of the offence, so that the defendant have intelligible notice of the charge against him. All defects beyond this are settled by the verdict and judgment. (2 Seld., 50; 3 Barb., 470; 8 id., 547; 5 Wend., 10-12, 271; 12 id., 431, 432; 3 Denio, 91; 4 id., 68, 71.)

The counsel for the prisoner claims the reversal of the judgment in this case, on the ground that it does not appear that the defendant was present at the trial or when sentence was pronounced, and that it does not appear that the clerk or the court asked the defendant what he had to say why sentence should not be pronounced against him; relying upon the cases of The People v. Clarke (1 Park. Cr. R., 360) and Sanford v. The People (id., 474). There are two answers to these objections. In the first place, there is no record brought up by this writ of error, and nothing like it. There is nothing before us on which error can be assigned, except the indictment, and I do not think that we should ever pass upon that, disconnected from a record showing a trial and judgment; and so we held at the last term, in the case of The People v. Griswold. In the case of The People v. Gray (25 Wend., 467), the court say the record of judgment has not been brought up, and objections to errors in form, that might be corrected in making it up, cannot be entertained; and I very much doubt whether it is an error for which the judgment should be reversed, if it appear from the record that the prisoner was not asked if he had anything to say before sentence. It is not necessary, however, to decide this question, as we have no record here on Which such error can be alleged.

I see no reason to interfere with the conviction and sentence in this casé.

Gray, J., concurred, and Shankland, J., dissented.

Judgment affirmed.