People v. Calvert — 10 N.Y. Crim. 329

Majority

p. 329

Supreme Court-General Term-Second Department.

February 13, 1893.

PEOPLE v. GEORGE CALVERT.

( 51 St. Rep. 186 .)

Headnote

1. Burglary—"Apartment house.

, A burglary is properly, charged, and proven as against the sole-occupant of the only occupied apartment of an apartment house.

2. Same.

Where the defendant was indicted for burglariously entering the house of one Kate Higgins, and it appears that she occupied the second floor of an apartment house with her husband, and while she was alone therein, she heard a noise and found defendant- in the lower hall and he left on seeing" her, but a few days later called and rang the bell, and she saw him take a paper from bis pocket, and, on being arrested two days later, there was found’ on him a key which fltted the front door of the house, and a letter telling her that her husband was hurt and asking her to come to the hospital, these facts were held to justify conviction.

p. 330

Appeal from judgment entered on conviction of defendant of the crime of burglary in the second degree.

Willaim J. Courtney, for appellant.

James W. Ridgway (John F. Clarke, of counsel), for respondents.

The defendant was indicted for a burglary in breaking and entering the dwelling house of one Kate Higgins, on the 24th of March, 1892. The proof showed that Kate Higgins lived with her husband at No. 60 Hey wood street, Brooklyn.

She lived in an apartment house in which there were three separate apartments, but only one was occupied by her on the .second floor.

On the 24th of March, 1892, the lower hall door was locked; Mrs. Higgins heard a noise in the lower hall. She opened her door from the top of the stairs and saw the defendant in the hall.

He immediately went out upon seeing her. This was at midday, and Mrs. Higgins was alone in the house. At about the same hour on the 2d of April, 1892, he again went to the house and rang the bell. Mrs. Higgins did not go down to answer the bell, but stood at the window and saw the defendant take a piece ■of paper from his pocket.

The defendant was arrested on the 4th of April, 1892, and there was found on him a key which fitted the Higgins’ front door, and a letter written in these words:

“Dear Madam.—Your husband met with a very serious accident on Broadway, and is now in St. Katharine’s hospital. Come as quick as possible without delay.

“No. 60 Hey wood street.”

Mrs. Higgins’ husband had met with no accident and was not taken to St. Katharine’s hospital. The proof was sufficient to sustain the indictment as to the burglarious entry on the 24th of March, 1892. He had a key afterwards which fitted the lock, and there is no doubt but that he got in by means of this key. The jury were called upon to find his motive, and there can be but one conclusion, that he entered to steal.

p. 331

The intent oí the defendant is made still clearer by the fact that he attempted to deliver a decoy letter to get Mm. Higgins to leave her house, so that, with the key he had, he could again enter in her absence and riñe the house.

The judge committed no error in his question to the jury as to what the prisoner entered the house for.

He left the answer to the jury. The burglary was properly charged and proven as against Mrs. Higgins. She was the only occupant of the house, and the front door was her sole protection, and entry there was aimed at Mrs. Higgins and no other person.

She locked the door, and it was an off ense against her possession for the defendant to break it open with intent to steal. Neither section 503 of the Penal Code, or the case of Rodgers v. People, 86 N. Y. 360 , is against this view.

The conviction and judgment should, therefore, be affirmed.

DYKMAN and PRATT, JJ., concur.

Cases cited

Rodgers v. People 86 N. Y. 360 N.Y. 1881-10-11 p. 331