People ex rel. Hubert v. Kaiser

“ Q. You know now, at present, at this moment — you fully appreciate what you are saying, do you not ? A. Yes. Q. You know you have entered ia plea of guilty, to an indictment charging you with the crime of .burglary in the first degree ? A. Yes, sir. Q. You know what ‘the word guilty means —■ you confess to the commission of that crime? A. Yes.” At the close of that examination he stalted: “ I have nothing more to say, but prefer to consult with my own lawyer.” On April 4, 1907, he appeared in 'court for sentence, represented by counsel, the attorney whom the court had asked on March 28th to ascertain Whether he understood the proceeding, and who, ¡according to said affidavit, had in the meantime ¡been requested by Brandt to represent him. ¡Said counsel made an ¡appeal to the court for clemency, but, although he stated that both he and his client realized ¡the gravity of the situation, he made no request for leave to withdraw the plea of guilty. He did, however, produce certain articles, which he said were found in the prisoner’s possession and belonged to Mr. 'Sdhiff, evidently the articles of jewelry which the prisoner had under oath on March 28th denied talking, ¡and stated that the prisoner desired to give them up and to some before the court “ in a .state of deep repentance.” At the conclusion of the remarks of counsel, a detective sergeant was sworn, a report respecting the prisoner’s record made by the witness to an inspector of police was read, and a ¿heck was produced which the prisoner first denied, and then admitted, forging. At the conclusion of 'the proceedings on April 4th the court sentenced the prisoner to imprisonment in a ¡State prison for the term of thirty years, and upon a commitment regular in form, reciting a conviction by confession of burglary in the first degree, he Wais committed to Sing Sing prison, and later, pursuant to law, wais transferred to 'Clinton prison. 'On February 9, 1912, ¡a writ of habeas corpus returnable at the Special Term, Hew York county, was allowed by a justice of the Supreme Court upon the petition of the relator, who styled himself “ the

next friend of Folke Engle Brandt.” The defendant returned that the prisoner wa's detained by virtue of a judgment of conviction of the 'Court of General Sessions of the Peace of the city and county of ¡New York. A copy of the commitment wias attached to the return, and the original was produced for the inspection of the court. A traverse, verified by the relator, “ to the hest of his 'information and belief,” not by -the prisoner, as is required by section 2069 of the Code of Civil Procedure, was filed in which it was averred, among other things, that Brandt was never tried for the crime charged in the indictment and never pleaded guilty. The indictment, the stenographer’s minutes of the proceedings thereon, a certified copy of the court minutes taken from the clerk’s minute book, iamd the affidavit hereinbefore referred to were reiad in evidence, as the order appealed from recites, in support of the traverse, and upon the record thus made the onaltter was submitted to the court for decision with .the acquiescence of all parties, and thereupon 'an order was-entered discharging the prisoner from the custody of the defendant under the said judgment of conviction iamd remanding him to the custody of the warden of the city prison of the city of ¡New York to await trial on the indictment of March 22, 1907. From that order as resettled, the attorney-general and the district attorneys of '¡New York and 'Oliniton counties have appealed in the name of the People of the (State of ¡New York..

A preliminary question is presented 'by the respondent’s motion to -dismiss the -appeal on the ground that the order is not appealable, and that the appeal was not taken in 'accordance'with the provisions of section 2058 of the 'Code of Civil Procedure, which provides:

“An appeal may be taken from an order refusing to' grant a writ of habeas corpus, or a' writ of certiorari, as prescribed in this article, or from a final order, made upon the return of such a writ, to discharge or remand a prisoner, or to' ¡dismiss the proceedings. Where the final order is made, to discharge a pris-

oner, upon Ms giving bail, an appeal therefrom may be taken, before bail is given; but where the appeal is- taken by the people, the discharge of the prisoner upon bail shall not be stayed thereby. An appeal does not lie, from an order of the -court or judge; before which or whom the writ is made returnable, except as prescribed in this section.”

It is stated that the prisoner has given bail pursuant to- the second provision of the order appealed from, and what purports to he a -copy of the bai-1 bond is to be found in one of the records before us. But plainly that is not the bail referred to in said section. The relator was discharged absolutely from the custody of the defendant, not conditionally upon giving bail. The direction for that discharge finally determined the proceeding, and it is of no .consequence on this appeal that a provision was incorporated in the order remanding the prisoner to- the custody of some one other than the defendant to await trial on the indictment; though it may be said in passing that, it is not apparent how the prisoner is to he tried on an indictment to- which he has pleaded guilty, so long as that plea stands. Moreover, the first sentence of the section quoted gives the unqualified right to appeal from a final order discharging the prisoner. The succeeding sentence is permissive and was plainly intended to authorize an appeal before bail i® given, where -the discharge-, instead. of being -absolute is conditional, and to provide that in such case an appeal by -the people should not -stay the discharge of the prisoner upon -giving, bail.

But it is said that said section is invalid for suspending the privilege of the writ of -habeas corpus in violation of subdivision 2 of section 9 of -article 1 of the Constitution of the United -States, and -section 4 of article 1 of the -Constitution of the 'State of Hew York. That provision, with its prototype, section 70 of title 1 of chapter 9 of part 3 of the -Revised Statutes: (2 R. S. 573), has been unchallenged a® the statute laiw on the subject in ibis State since 1830. Appeals in the name of the people have

■It is urged in support of the order appealed from that the Court of General Sessions had no power to permit -the plea of

Pleas to an indictment are of three kinds: 1, a plea of guilty; 2, a plea of not guilty; and 3, a plea of .a former judgment of conviction or acquittal of the crime charged. (Code 'Grim. Proc., § 332.) “ Every plea must 'be oral, and must be entered upon the minutes of the court.” (Id., § 333.) If the defendant pleads guilty to the crime charged in, -the indictment, the plea must be entered in substantially the following form: “ The defendant pleads that he is guilty.” (Id., § 334.) “ The court may, in its discretion, ¡at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” (Id., § 337.) “After a plea or verdict of guilty * * * the court must .appoint a time for pronouncing judgment.” (Id., § 471.) Express statutory authority for allowing the withdrawal of a plea of guilty does not deprive the court of the power to allow the withdrawal of a plea of not guilty, and it seems strange to hear a power -challenged which has been exercised without question since the earliest times. At common law obstinately standing mute np-on arraignment was equivalent to a conviction in cases of the highest and lowest description of crimes, i. e., high treason and minor offenses. In other felonies the punishment of peine forte et dure, death iby famine-, cold and pressure was the consequence of silence until ¡by 12 George III, chap. 20, that punishment was -abrogated and it was enacted that a person standing mute on arraignment on any indictment for felony or piracy should he convicted of the offense. Gonfession was -always regarded as the highest kind of conviction and could be received after plea of not guilty recorded even in the case of high treason. (1 Ghitty Grim. Laiw, 425-429, and citations in marginal notes.) In some jurisdictions it is competent

It is a startling proposition that statements made in the desire to secure clemency by a person convicted of crime, whether upon a verdict or a plea, can have the effect of nullifying the conviction, or constitute ground for a discharge on habeas corpus, possibly after the death or disappearance of necessary witnesses to prove the offense charged. Every judge of any experience in the administration of the criminal law knows that such statements cannot as a rule be relied upon, and surely the judge in this case was not bound to accept at its face value the statement of the prisoner that he found 'the basement gate, the ash hoist and cellar door of a Hew York city dwelling conveniently open in the night time for him to enter without being technically guilty of burglary. Even upon the prisoner’s own statement the manner in which he entered the house meets the statutory definition of breaking. It is not indispensable to the conviction of the crime of burglary of a person, who in the night time, without invitation, right or lawful occasion, enters another’s dwelling and therein commits ¡a crime, that a witness should be produced who saw the unlawful entry. The word

“ 1. Breaking or violently detaching any part, internal or external, of a. building; or,

“ 2. Opening, for the purpose of entering therein, by any means whatever, any outer door of a building, or of any apartment or set of apartments therein separately used or occupied, or any window, shutter, scuttle, or other thing, used for covering or closing an opening thereto or therein, or which gives passage from one part thereof to another; or,

“ 3. Obtaining an entrance into such ¡a building or apartment, by any threat or artifice used for that purpose, or by collusion "with any person therein; or,

“ 4. Entering such a building or apartment by or through any pipe, chimney, or other opening, or by excavating, digging,, or 'breaking through or under the building, or the walls or foundation thereof.”

This record discloses no error or irregularity which would justify the interference of this court even if the case were here on an appeal from the judgment of conviction. The question for decision on a writ of habeas corpus is confined within narrower limits, and in this case might 'have been disposed of on the hare statement that the court had jurisdiction of the defendant and of the subject-matter, the offense, which is conceded, and that, even if the traverse, verified “ to the best of his information and belief ” by one who did not appear to have any knowledge or information upon the subject, was sufficient to raise an issue, the uncontroverted record evidence offered in support of the traverse established that the prisoner was convicted upon his plea of guilty and that 'the court was, therefore, empowered to pronounce sentence and render judgment. (See People ex rel. Danziger v. P.

The statute, section, 2032, of the ¡Code of Civil Procedure, also challenged -as ¡being unconstitutional, provides interalia: “ The court or judge must forthwith,” i. e., after examination into the facts alleged in the return and into the cause of imprisr onment or restraint, “ make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally ¡be so detained has not expired: * * * 2. By virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction; * * *.” It would be a work of supererogation at this day to discuss or analyse authorities in support of principles which have 'become elementary, hut the occasion seems to require the restatement of them. The writ of habeas corpus is not, .and never has been, a writ of review. Its sole function is to relieve from unlawful imprisonment. And the sole inquiry upon it is whether the mandate or the judgment, by virtue- -of which the prisoner is detained, is void. Where it appears that the prisoner is detained by virtue of a final judgment of a court o-f competent jurisdiction, the- court or the judge has no- alternative but to remand the prisoner, unless it affirmatively appears that there was .an utter want of power or jurisdiction to render the judgment. Every presumption must be indulged in support of the judgment. Error or the abuse of discretion in the exercise of jurisdiction does not constitute the want of jurisdiction. Though it is not necessary to cite authority in support of such familiar rules, we refer to the most recent decisions of the -Court of Appeals of this ¡State and of the United States Supreme -Court on the subject. (People ex rel. Scharff v. Frost, 198 N. Y. 110 ; Harlan v. McGourin, 218 U. S. 442 ; Matter of Gregory, 219 id. 210.) In the Seharff case, as. here, the defendant was convicted on a ple-a -of guilty. Subsequently, -and before sentence was pronounced, an event -occurred of which 'the court

One case is cited by the respondent which is said to bear some resemblance to this. (Gardiner v. People, 106 Ill. 76 .) We fail to discover any similarity in the facts of that case; but it is enough to say that the decision was made on a writ of error.

We have nothing to do with the sentence, except to determine whether it was in excess of the court’s power. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559 .) Burglary in the first degree is punishable by imprisonment in a State prison for not less than ten years (Penal Law, § 407; Penal Code; § 507), and may be punished by imprisonment for life (Penal Law, § 2191; Penal Code, § 696).

The order should be reversed, the writ dismissed, and the prisoner remanded to the custody of the defendant.

Laughlin, Olabke and iScott, JL, concurred.

I concur in the reversal of the order appealed from.

The petition on which the writ was granted alleged that the prisoner was held under a commitment made by -a judge of the Court of General Sessions of the Peace in the city and county of Hew York, upon an indictment charging the prisoner with the crime of burglary in the first degree upon an alleged plea of the prisoner of guilty of said crime; that the record disclosed tha/t the crime of burglary in the first degree was never committed by the prisoner at the time and place charged in the indictment ; that the prisoner did not plead guilty to the crime of burglary in the first degree before the said judge, but did state to the said judge facts showing that he had not committed the crime of burglary in the first degree. The return to the writ

The writ of habeas corpus is regulated by the Code of Civil Procedure. By section 2016 it is expressly provided that a person is not entitled to either of .the writs specified in the last section, namely, a writ of habeas corpus or a writ of certiorari, “ where the has been committed, or is detained, by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction.” .

By section 2019 of ¡the Code of Civil Procedure it is provided that the petition must state that the prisoner was not committed and is not detained by virtue of any judgment, decree, final order or process specified in section 2016 of the act. ¡Section 2020 provides that the writ must he granted unless it appears from

It is an elementary rule that “ where the court has jurisdiction of the parties and the subject-matter in the particular case, its judgment, unless reversed or annulled in some proper proceeding, is not open to attack or impeachment, by parties or privies, in any collateral action or proceeding whatever ” (Black Judg., § 246) ; and “ the rule against collateral impeachment 'applies to every judgment, order, decree, or judicial proceeding, of whatever species, that is not absolutely void: If the judgment is void on its face it is, of course, a mere nullity 'and of no avail for any purpose, and this may be urged .against it whenever it is brought in question. But otherwise, whether it he regular or irregular, correct or erroneous, valid or voidable, it is not subject to. collateral attack.” (Id., § 246.) And .this rule 'applies in a proceeding upon a writ of habeas corpus, as “ a proceeding of this nature is undoubtedly a collateral attack upon the judgment; and exceptional as the remedy is, and beneficient as is the purpose it subserves, there is no good reason for permitting it to be made the vehicle for objections to the judgment or sentence which could not be urged against it in any other collateral proceeding.” (Id., § 264.) “If the question is upon the judgment of a court of competent jurisdiction, the petitioner in habeas corpus cannot impeach it on the ground of any error or irregularity in the proceedings or sentence of the court which 'does not go to the extent of impairing or taking away its power or jurisdiction to act in the case.” (Id., § ‘255.)

I, therefore, concur in the reversal of this order.

Laug-hliw, J., concurred.

•Order reversed, writ dismissed and prisoner remanded to the custody of defendant. Motion to dismiss appeal denied. Orders to be settled on notice.

NOTE ON BURGLARY.

DEFINITIONS.

At common law, the breaking and entering of the dwelling house of another, in the night-time, with intent to therein commit a felony. People v. Edwards, 1 Wheeler Crim. 371.

And the offense is still burglary, whether the felony be committed or not. People v. McCloskey, 5 Park. Crim. 57.

A burglar is he that in the night-time breaketh and entereth into a mansion house of another with intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not. 3 Inst. 63.

The word burglary is a compound of the Saxon word búrgh, a house, and laron, theft; and originally signified no more than the robbery of a dwelling; and it is now defined to be the breaking and entering the house of another in the night-time, with intent to commit a felony, whether the

ELEMENTS OF CRIME.

Terms used in the statute defining various kinds of structures are to be given the same meaning as at common law, unless there is something in the statute itself to exhibit a contrary intention. Quinn v. People, 71 N. Y. 571 .

For a guest at an inn to enter a bar room is not burglary, when there is no breaking or opening of doors to enter. State v. Moore, 12 N. H. 42 .

To enter through a hole in the roof, left there for purposes of admitting light, is not burglary. Rex v. Spriggs, 1 M. & Rob. 357 .

Nor is it burglary to enter through an open transom. McGrath v. State, 25 Neb. 780 .

Or through a hole in a cellar window left there for the purpose of admitting light. Rex v. Lewis, 2 C. & P. 628.

Or where defendant gained admission by removing a loose plank in a partition. Commonwealth v. Trimmer, 1 Mass. 476 .

Or by thrusting the hand, or an instrument held in the hand, through an existing hole in a corn-crib, and thereby removing com therefrom. Miller v. State, 77 Ala. 41 .

The fact that the defendant very slightly raised a window in the daytime, so that the lock which fastened it down would not work properly, does not prevent his subsequent raising of the window and thereby entering in the night-time, from constituting burglary. People v. Dupree, 98 Mich. 26 .

Under the statute declaring guilty of burglary in the second degree any person who should enter the dwelling house of another by day or night with intent to commit, a crime, or, being in the dwelling house of another, should commit a crime, and should in the night-time break any outer door, etc., to get out of the house; held, that one who entered the dwelling house of another in the day-time through an open window, with intent to commit a crime, but did not break out of the house in the night-time, is not guilty of burglary. People v. Arnold, 6 Park. Crim. 638.

The law on the point is, that if the owner leaves his doors open or partly" open, or his windows raised, or partly raised and unfastened, it will constitute such negligence or folly on his part as is calculated to induce or - tempt a stranger to enter, and if he does so through the open door or window, or by pushing open the partly opened door, or further raising the - window that is a little up, it will not be burglary. Timmons v. State, 34 Ohio St. 426 .

The removal or thrusting aside of any fastenings, or any part of the ■ structure intended as a security against intrusion, even where a forcible - breaking is required by the statute, will constitute a breaking. Commonwealth v. Stephenson, 8 Pick. (Mass.) 354 .

The terms “ break ” and “ forcibly break ” in the statutes defining and punishing the crime are to be given the same meaning as the term “ break ” at common law, unless a contrary intention appears. State v. Robertson, 32 Tex. 159 .

Breaking or pushing in part of a pane of glass which had been previously cut out, although the entire glass remained in place, is such a breaking as will constitute the crime. Reg. v. Bird, 9 C. & P. 44.

As will opening a door by unhooking a chain hooked over a nail. State v. Hecox, 83 Mo. 531 .

Or removing a window fastening with a knife or other sharp instrument operated from the outside, and lifting the window. State v. Moore, 117 Mo. 395 .

Or the removal of a window screen fastened with nails. Sims v. State, 136 Ind. 358 .

Or the removal of a netting fastened over an otherwise open window. Commonwealth v. Stephenson, 8 Pick. (Mass.) 354 .

Or removing a wire screen in a window. State v. Herbert, 63 Kan. 516 .

Or breaking a canvas covering attached to a window. Grimes v. State, 77 Ga. 762 .

Or pushing open a screen door, the inner door at the time standing open. State v. Connors, 95 Iowa, 485 .

Removing an iron grating covering an area opposite the cellar window of a building. People v. Nolan, 22 Mich. 229 .

Or removing a post which stood leaning against a door for the purpose of keeping it closed. State v. Powell, 61 Kan. 81 .

Entering a factory through a hole which existed for the purpose of allowing the entrance of a belt attached to the fly-wheel of machinery, by pushing aside the belt so as to make room for the entry of defendant’s body. Marshall v. State, 94 Ga. 589 .

If a person, having entered a building through an open door or window, breaks an inner door or other obstruction for the purpose of committing a felony, it is burglary. Smith’s Case, 4 City Hall Records, 62.

Entering an open outer cellar door and breaking an inner cellar door and entering the house is a burglarious breaking and 'entering. McCourt v. People, 64 N. Y. 583 .

Breaking and entering in the day-time punishable. Butler v. People, 4 Den. 68 .

A person who turns the handle and opens the door of a closed store and on entering steals goods after binding the clerks in attendance, commits burglary, the turning of the knob and the opening of the door being a breaking within the meaning of the statute. Rosenthal v. American Bonding Co., 26 N. Y. Crim. 12 .

NIGHT-TIME DEFINED.

That period between sunset and sunrise during which there-is not sufficient daylight to discern the face of a man. State v. Clark, 42 Vt. 629 .

It is not the less night-time, within the definition of burglary, because the street-lamps, or reflection from the snow, or the moon, or all together, give sufficient light to discern a man’s face, but the test is, whether there is sufficient day-light. State v. Morris, 47 Conn. 179 .

THE PREMISES BURGLARIZED.

Under a statute punishing the breaking and entering of a dwelling house, such house must be at the time, in fact, the dwelling house of another. Quinn v. People, 71 N. Y. 571 .

A house used in part as a dwelling, though another part thereof may be used as a store or for other purposes, is a dwelling house within the statute. People v. Snyder, 2 Park. Crim. 23.

In an apartment or tenement house each apartment or suite of rooms is the dwelling house of the occupant. Mason v. People, 26 N. Y. 200 . See also People v. Calvert, 10 N. Y. Crim. 329 .

A charge of breaking into a store in which goods were kept for sale, use or deposit is not sustained by proof of entering an inner room of a building which was not a store, but a mere business office of a board of underwriters, and in which were kept merely furniture, office supplies, etc. People v. Marks, 4 Park. Crim. 153.

A statute punishing as burglary breaking and entering, with intent to steal, any shop^ store, tent, booth, warehouse or other building in which any goods are kept, etc., held to apply where the room broken and entered was in the basement of a court house occupied by a corporation for storing beer, by consent of those having the supervision of the building, being-separated from other rooms in the building by partition walls with doors which were kept locked, the keys to which were in the possession of theeorporation’s agents, and where the defendant entered the basement through-an open window into a hall occupied for public purposes^ and thence entered the room by breaking through a door. People v. McCloskey, 5 Park. Crim. 57.

The term “ booth ” includes a structure five feet high and five feet long, having a window and a door, and erected as a fruit stand against other-premises. People v. Hagan, 14 N. Y. Supp. 233 .

A burial vault is not a building within the statute. People v. Richards, 108 N. Y. 137 , revg. 5 N. Y. Crim. 355 .

INTENT AND CONSUMMATION THEREOF.

Both the breaking and entering must be with felonious intent. McCourt v. People, 64 N. Y. 583 .

Not burglary, but a mere trespass, to break and enter a house with the-intention of taking property under a bona fide claim of right, although the-

The impossibility of committing the intended felony because of the absence of the property which the defendant expected to obtain, is no defense, because the intention was present at the time of the breaking and entering. Harvick v. State, 49 Ark. 514 .

ATTEMPTS.

Where a person does any act towards the commission of his purpose of committing burglary, such as turning a knob without opening the door, or breaking a window without thereafter actually entering, he is guilty of an attempt to commit burglary. People v. Lawton, 56 Barb. 126 .

The question whether the attempt has been made, is to be determined solely by .the condition of the actor’s mind, and his conduct in the attempted commission of his design, and whenever the animo furandi exists followed by acts apparently affording a prospect of success, the accused brings himself within the letter and meaning of the statute, although for some reason, not discoverable by him, the crime under existing circumstances may be incapable of accomplishment. People v. Moran, 123 N. Y. 254 .

Entering into an agreement with another to commit a burglary at a particular time and place, and coming to the appointed place at the appointed time, with burglar’s tools, was an attempt, although the defendant wasi prevented from carrying out his purpose because an alarm was raised while he was gone to a blacksmith’s shop to get a crowbar with which to break the door of the house. People v. Lawton, 56 Barb. 126 .

INDICTMENT.

For form of indictment* for breaking and entering a dwelling house in the day-time with intent to commit larceny, see Harris v. People, 59 N. Y. 599 .

Sufficiency of indictment passed upon in People v. Bosworth, 64 Hun, 72 .

Where by statute the breaking and entering must be effected in a particular way or by particular means, thus making it an element of the offense, the indictment must charge the offense in such a way as to bring it within the statute. People v. Van Gaasbeck, 9 Abb. Pr. (N. S.) 328.

SAME—DESCRIPTION OF PREMISES.

The use in an indictment of the term! “ house ” instead of “ dwelling house ” has been held to be sufficient, on the ground that the word “ house ” in its common and primary acceptation, means a dwelling house. Thompson v. People, 3 Park. Crim. 328.

Not sufficient to describe the premises as “ certain stove works ” without alleging them to have been a building or a room, or a part of a building as required by the statute. People v. Haight, 54 Hun, 8 .

SAME—OWNERSHIP OF PREMISES.

A charge in an indictment that a person committed burglary In a dwelling house, the property of a person named, is sufficient allegation of ownership, and under the statute the possessor for the purposes thereof is the owner, and the legal presumption from such an allegation is that the person named is in possession. Woodford v. People, 62 N. Y. 117 .

The ownership may be laid in the tenant, if there be a tenant in possession of the premises at the time of the burglary. Mason v. People, 26 N. Y. 200 .

Where a building is occupied by partners, the indictment should lay the ownership in all of the partners. Quinn v. People, 71 N. Y. 561 .

SAME—DESCRIPTION OF INTENDED OFFENSE.

Since the Revised Statutes, it is unnecessary," in an indictment for burglary, in breaking, etc., with intent to commit a crime, to specify what kind of a felony was intended. Mason v. People, 26 N. Y. 200 .

SAME—DEGREES OF CRIME.

An indictment for burglary should allege the manner in which the offense was committed, where the offense is by statute divided into degrees, and punished differently according to the circumstances under which it was committed. People v. Van Gaasbeck, 9 Abb. Pr. (N. S.) 328.

Separate counts for burglary, larceny, and receiving stolen goods respectively, may be joined in the same indictment when they are all founded upon the same transaction and the acts charged relate to the same property. People v. Wilson, 151 N. Y. 403 .

Burglary and larceny may be charged in the same indictment. People v. Rose, 15 N. Y. Supp. 815 .

And this rule is not changed by the provisions of the statute that an indictment must charge but one crime, except that when the acts complained of may constitute different crimes such crimes may be charged in different counts. People v. Wilson, 151 N. Y. 403 .

VARIANCES.

Where an indictment charged the accused with an attempt to burglariously break and enter the dwelling house of S., and it appeared upon the trial that the attempt was to break into a chamber in a hotel assigned to and occupied by S., as a guest, held that the indictment was fatally defective. Rodgers v. People, 86 N. Y. 360 .

But where the variance is unprejudicial, and is made immaterial by statute, the indictment is good, and the conviction thereupon will stand in spite of the variance in the proof. People v. Hagan, 14 Supp. 233.

Under a statute allowing amendment of an indictment for variance in reference to- the name or description of anything, if the defendant cannot be thereby prejudiced in his defense on the merits, a slight variance in the name of the owner of the premises may be cured by amendment. People v. Hagan, 14 N. Y. Supp. 233 .

SAME—THE BREAKING AND ENTERING.

Proof of an entry without breaking, and breaking out, although it may be punished by statute as burglary, will not sustain a conviction where the indictment alleged a breaking and entering. People v. Arnold, 6 Park. Crim. 638.

SAME—FELONIOUS INTENT.

An allegation of breaking and entering with intent to commit a particular felony will not be sustained by proof of a breaking and entering with intent to commit some other felony. People v. Marks, 4 Park. Crim. 153.

It may be shown that the doors were usually kept closed, and that they were closed and latched ten minutes or so before the alleged burglary. People v. Bush, 3 Park. Crim. 552.

SAME—OF OTHER CRIMES.

On a trial for burglary, evidence of the theft of similar articles from the same premises a month previous to the crime charged, by the same person, held improperly admitted. People v. White, 3 N. Y. Crim. 366 .

Evidence of other burglaries and larcenies by the same defendant in the same house, or in a different house, ’at about the same time, held admissible on the question of intent. Osborne v. People, 2 Park. Crim. 583.

Error to allow a witness who has aided in a burglary to testify that he and the defendant committed other burglaries wholly disconnected with the crime in question. People v. Dixon, 21 N. Y. Crim. 45 .

Evidence of conversations between the defendant and the witness relating to other unconnected burglaries is not admissible to show an unlawful purpose. People v. Dixon, 21 N. Y. Crim. 45 .

SAME—AS TO POSSESSION OF PROPERTY STqLEN.

Evidence is admissible to show that an article not included in the property alleged to have been stolen in the indictment at the time of the burglary, was stolen with the other property, and was afterwards seen in the possession of the defendant. Foster v. People, 63 N. Y. 619 .

Where it appeared that when defendant, who occupied rooms with a woman, was arrested, he handed something to a man, and told Mm to take it to his wife, it was held admissible to show that on the same evening the woman left five hundred dollars with her employer’s cashier and did not return, as tending to show that the money was the article sent by defendant to his wife. People v. Wilson, 7 App. Div. 326 .

SAME—POSSESSION OF BURGLAR’S TOOLS.

After the burglary is once proved, held competent for the prosecution to prove that the defendant was found in possession of burglar’s tools shortly after the burglary, and to introduce the same in evidence. People v. Lamed, 7 N. Y. 445 .

SAME—OF ACCOMPLICES.

A conviction cannot be had on the uncorroborated testimony of an accomplice. People v. Holden, 22 N. Y. Crim. 533 .

SAME—IDENTIFICATION.

Evidence on the trial of an indictment for burglary, first degree, examined, and held, sufficient to identify the .defendant as one of the persons who committed the crime. People v. Rainier, 22 N. Y. Crim. 530 .

WEIGHT AND SUFFICIENCY OF EVIDENCE.

Proof that the building was broken open and goods stolen should be made by the testimony of the person in the immediate possession of the building and goods, or a satisfactory explanation should be given as to why he is not called as a witness. People v. Caniff, 2 Park. Crim. 586.

Circumstantial evidence held sufficient, if it excludes beyond a reasonable doubt every other possible hypothesis than that of the defendant’s guilt. People v. Lyons, 29 App. Div. 174 .

A breaking may be shown by circumstantial evidence. Foster v. People, 63 N. Y. 619 .

The fact of breaking should be proved by the direct testimony of the person in occupancy of the premises. People v. Caniff, 2 Park. Crim. 586.

The time of the offense may be proved by circumstantial evidence. People v. Edwards, 1 Wheel. Crim. 371.

Felonious intent being an essential element of the offense, it must be proved beyond a reasonable doubt. People v. Marks, 4 Park. Crim. 153.

As the intent, as a rule, is not susceptible of direct proof, it may be proved by circumstantial evidence. In re Corcoran, 34 Misc. 332 .

The facts that four professional thieves, acting in concert, enter a bank, frequently go in and come out, and converse on the adjacent corner, held, to point to an intent to commit a felony or a larceny and to be sufficient to warrant a conviction. People v. Corcoran, 15 N. Y. Crim. 392 .

Evidence considered, and held to be insufficient to sustain a judgment of conviction for burglary in the third degree. People v. Rosenberg, 21 N. Y. Crim. 304 .

Evidence in a prosecution for burglary, third degree, examined, and held to corroborate the testimony of an accomplice. People v. Blatt, 24 N. Y. Crim. 418

Evidence supporting a judgment convicting defendants of the crime of burglary in the second degree, examined, and held that the jury was warranted in finding them guilty beyond a reasonable doubt. People v. Stanley, 23 N. Y. Crim. 205 .

SAME—AS TO POSSESSION OF STOLEN GOODS.

The proof of exclusive possession by the prisoner, recently after the theft, of the whole or some part of the stolen property, is sufficient, when standing alone, to throw upon him the burden of showing how he came by it, and if he fails to do so, warrants the jury in convicting him of the crime charged, and if the property was shown to have been taken by burglary such possession unexplained is sufficient also to warrant a conviction of that crime. Knickerbocker v. People, 43 N. Y. 177 .

Proof of the possession, shortly after the burglary, by defendant, of the goods which were stolen, unexplained, with proof of the breaking and entering by some one, when accompanied by other circumstances tending to connect defendant with the crime, are sufficient to warrant a conviction. People v. Lyons, 29 App. Div. 174 .

Proof of possession held prima facie proof of burglary by the defendant, if a breaking and entry is proved, and the possession is unexplained, or the explanation given is shown to be unreasonable or false. Davis v. People, 1 Park. Crim. 447.

The question of guilt is always for the jury. People v. White, 3 N. Y. Crim. 366 .

If the possession is joint with another, there must be something else in the evidence to connect defendant with the crime charged. People v. Wilson, 7 App. Div. 326 .

The breaking and entry must be clearly shown. People v. Caniff, 2 Park. Crim. 586.

Where the uncontradieted evidence shows a breaking and burglary, it is not error to refuse to submit to the jury the statute punishing as a misdemeanor entry of a building under circumstances not amounting to burglary. People v. Meegan, 104 N. Y. 529 .

A charge may be erroneous, if there is no evidence in the testimony upon which to base it, though it may be correct in the abstract. Knickerbocker v. People, 43 N. Y. 177 .

An instruction that certain evidence, if true, established a breaking and entry and the commission of a crime, was not objectionable, where the court added in conclusion that those questions were for the jury to determine. People v. Hagan, 14 N. Y. Supp. 233 .

Upon the trial of an indictment charging the defendant with burglarizing the house of one S., it appeared that at about the same time he burglarized the house of one L.; that a search warrant was issued, which resulted in the discovery of a portion of the property taken, a part of it from each of the houses, and that the defendant, with knowledge of the service of the search warrant and the finding of the property, made a complete disclosure of his participation in both burglaries to a witness sworn at the trial, and asked for the advice and assistance of such witness based on the confession as a whole; held, that the fact that, in testifying to the-confession so made by the defendant, the witness testified as to what the-defendant said in respect to his participation in the burglary of L’s house.did not require a reversal of the judgment. People v. Lonnis, 17 N. Y. Crim. 131 .

Courts must properly instruct the jury as to the effect as evidence of the defendant’s possession of stolen property, if such evidence is before them. Jones v. People, 6 Park. Crim. 126.

POSSESSIOX OF BURGLAR’S TOOLS.

The defendant on a charge of having burglar’s tools in his possession need not have intended to use them within the State. People v. Reilly, 164 N. Y. 600 .

Evidence tending to prove, not only that defendant had tools such as are adapted for use and commonly used by burglars, but that he was in the company of four other men who were similarly equipped with tools and revolvers, and that their movements were on that day suspicious, and open to the inference that in concert they were preparing for an expedition on burglary intent, is sufficient to sustain a conviction for having burglar’s tools in possession. People v. Reilly, 14 N. Y. Crim. 458 .