People v. Richards

• Decision Date: 17 January 1888
• Citation: 108 N.Y. 137,15 N.E. 371
• Parties: PEOPLE v. RICHARDS.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 137

15 N.E. 371

PEOPLE

v.RICHARDS.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, Fourth department.

Dan S. Richards was convicted in the court of oyer and terminer of Broome county, of burglary in the third degree, for breaking into a stone vault used for the interment of the dead. On appeal to the general term the conviction was affirmed, and from this affirmation defendant appeals.

Louis Marshall and J. McGuire, for appellant.

George B. Curtiss, Dist. Atty., and N. C. Moak, for respondent.

PECKHAM, J.

The defendant was charged in the indictment with having committed the crime of burglary in the third degree, in that, on the twenty-third day of October, 1884, with force and arms, in the night-time, at the city of Binghamton, he broke and entered the granite and stone building, erection, and inclosure, known as the ‘Phelps Vault,’ the same being a building, erection, and inclosure for the interment of the dead, and being the property of, etc. Upon the trial the people proved that this vault was made of granite, at a cost of $5,000. It was built entirely above ground, on a stone foundation, and the structure was 10 feet 4 inches wide, 16 feet 4 inches long, 10 feet 6 inches high, and covered with a granite roof. The entrance was by a granite door, protected by a bronze gate. The interior of the vault, immediately inside of the interior granite door, has a compartment about 6 feet in depth and 8 feet across, and is unoccupied. At the rear of this compartment there is a partition across the width of the vault, and behind that partition the bodies are inclosed. There are twelve compartments, or graves, as they are described by one of the witnesses, and seven of these graves were occupied at the time of the commission of the alleged burglary by the defendant. In front of each grave was a marble slab bearing the name, and date of death, and the age of the occupant. Other evidence was given in the case connecting the defendant with the commission of the act of breaking into this structure, and examining the dead body of Robert S. Phelps which was therein contained. His purpose in doing so it is not material to inquire in regard to, under the view which we take of the statute as to burglary.

At the close of the case for the people, defendant's counsel asked the court to direct or advise the jury to find a verdict of not guilty in behalf of the defendant, Richards, upon the grounds: First. That the acts proven in this case are not within the provisions of the Penal Code. Second. Upon the ground that the vault or grave is not a building, within the meaning of the statute, which is capable of being burglarized. Third. That the proof in the case wholly failed to sustain the offense charged in the indictment. The court denied the motion and held that it was a case for the jury. We think the court erred in that decision. We do not believe that the structure described in the indictment and the proof is within the statute describing the crime of burglary in the third or any degree. As was stated by ANDREWS, J., in Rodgers v. People, 86 N. Y. 360, ‘Burglary, at common law, is an offense against the habitations of men.’ It may also be stated that the crime of burglary, even at common law, extends to the felonious breaking and entering a church. 3 Inst. 64; 1 Hale, P. C. 556; 1 Hawk. P. C. c. 38, § 17; 2 Russ. Crimes, 1, (vol. 3 4th Ed.;) Reg. v. Baker, 3 Cox, Crim. Cas. 581; 2 Whart. Crim. Law, § 1556. Lord Coke was of the opinion that the crime could be committed in regard to a church because, as he said, it was a mansion-house of the omnipotent God. Lord Hale said that was only Lord Coke's quaint way of putting it, and that burglary at common law could be committed by breaking and entering, not only a mansion-house, but a church, as a church, and without speaking of it as the mansion-house of God. It will be seen upon examination that there were two exceptions at common law to the general rule that burglary consisted in breaking into a mansion-house; the word ‘mansion’ being synonymous in that respect with dwelling-house. Those two exceptions were- First, in regard to a church; and, second, in regard to breaking through the walls or gates of a town. It was, however, primarily an offense committed against an man's house,-his dwelling,-and in the night-time.

The Revised Laws of the state defined burglary without dividing it into degrees. By the Revised Statutes burglary in the third degree was made to consist of breaking and entering, with intent to steal or to commmit any felony. The exact terms of the statute are as follows: ‘Every person who slall be convicted of breaking and entering, in the day or in the night-time, (1) any building within the curtilage of a dwelling-house, but not forminga part thereof; (2) any shop, store, booth, tent, warehouse, or other building in which any goods, merchandise, or valuable thing shall be kept for use, sale, or deposit, with intent to steal therein, or to commit any felony, shall, upon conviction, be adjudged guilty of burglary in the third degree.’ 2 Rev. St. 669, § 17. From the time of the passage of the Revised Statutes up to 1863 the crime stood as therein defined. By chapter 244, Laws 1863, the above section was amended by inserting in the second subdivision, after the words ‘or other building,’ the words, ‘or any railroad car, shop, vessel, or canalboat.’ We think it plain that all the words used in the Revised Statutes, or in the state of 1863, in defining burglary in the third degree, referred to structures erected or built for the purpose of answering the necessities of living men in their intercourse with each other of a trading or commercial nature, where their property might be deposited while awaiting use, sale, or transportation. Hence the Revised Statutes, in describing the crime of burglary in the third degree, or the act of 1863, above mentioned, did not cover such a case as is presented by this indictment and proof; and if this were all there was in the case, we think there would scarcely be room for argument on this subject.

Great weight, however, is laid by the learned counsel for the people on the language used in the Penal Code. That statute, in defining burglary in the third degree, enacts as follows (section 498:) ‘A person who either (1) with intent to commit a crime therein, breaks and enters a building, or a room, or any part of a building; or (2) being in any building, commits a crime therein, and breaks out of the same; is guilty of burglary in the third degree.’ Section 504 says: ‘The term ‘building,’ as used in this chapter, includes a railway car, vessel, booth, tent, shop, or other erection or inclosure.' There is contained in the section of the Code one alteration in the definition of the crime, as it is made burglary to break and enter a building with intent to commit a crime, instead of, as in the old statute, with an intent to commit a larceny or felony. As section 504 does not say that the term ‘building’ shall only include such structures as are therein named, it is argued that anything which can possibly be regarded as a building, under the broadest and most liberal signification of that term, is included therein, or at least within the expression added at the end of the section, ‘or other erection or inclosure.’ If this be sound, a most sweeping enlargement of the generally accepted idea of the nature of the crime of burglary is accomplished in a statute which has been regarded more in the light of a codification of the body of the criminal law than as materially altering and enlarging its scope and nature. We do not believe, in this instance, that any such result was contemplated by the legislature. Leaving section 504 for a moment out of view, the crime of burglary is defined as a breaking into a building, with intent, etc., and the question arises as to the meaning of the word ‘building.’ Finding it used in a statute defining burglary, two courses suggest themselves: (1) to regard the term as limited to those structures which the common law, as amended and enlarged by our statutes relative to the crime, made capable of being broken and entered burglariously; or (2) to take the widest signification which has ever been given to the term ‘building,’ and hold that every structure within such meaning is within the statute, provided it could be physically broken and entered. We are persuaded that the first course is the true one. We are unable to believe that the legislature meant to accomplish so radical a change in the nature of this crime by the use of language which, by its context, is capable of a much more restricted meaning, and one which is fully in accord with the nature of the crime as known to the common law and to our statutes down to the adoption of the Penal Code. The slight alteration made by the Code as to the intent which is to accompany the breaking and entering, from an intent to steal or to commit any felony to an intent to commit any crime, does not militate, as we think, against this reasoning, for that alteration is of comparatively slight importance, and does not really change the nature of the crime. In the absence of other and controlling reasons, we are disposed to limit the term ‘building’ to those structures included in the common-law and statutory definitions of the crime. We find at common law that burglary, so far as the character of the building was concerned, was committed by an unlawful breaking and entering of a dwelling-house. Our early statutes made the breaking and entering of such a structure, in the night-time, with intent to commit some crime therein, when there was a human being within, burglary in the first degree; and, when the entry was made in the day-time, burglary in the second degree. Subsequently, burglary in the third degree was made to consist in breaking any building within the curtilage of a dwelling-house, but not...