People v. Richards — 13 N.Y. St. Rep. 515

Majority

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The People of the State of New York, Resp’ts, v. Daniels S. Richards, Appl’t.^[1]

(Court of Appeals,

Filed January 17, 1888.)

Headnote

1. Criminal law—Burglary'in the third degree—What does not CONSTITUTE.

The breaking and entering of a burial vault, or a building or erection intended solely for the interment of the dead, does not constitute the crime of burglary in the third, or any degree.

2. Same—Burial vault built entirely above ground is not the subject OE BURGLARY.

Such a structure docs not become a building within the statute in regard to burglary, because it is placed above ground, when its sole purpose is that it shall be used as furnishing graves for the burial of the dead.

S. Same—What building subject oe burglary in third degree under 2 Rev. Stat., 669,.g 17, and Laws 1863, chap. 244.

The statute (2 R. S., 669, § 17, and Laws 1863, chap. 244), in defining:

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burglary in the third degree, referred to structures erected or built for the purpose of answering the necessities of men living in intercourse with each other, of a trading or commercial nature, where their property might be deposited while awaiting use, sale or transportation.

A Same—Penal Code, §§ 498-504—Meaning op teem: “building.”

The meaning of the term “building,” other than as including therein the structures specifically mentioned in the statute, is left to be gathered precisely in the same way as it would have been if section 504 of Penal Code had not been passed. The term “building,” as used in Penal Code, sections 498 and 504, does not enlarge the character of the crime of burglary to such an extent as to include a burial vault.

5. Same—“ Other erection or enclosure.”

The phrase “ other erection or enclosure,” in Penal Code, section 504, is to be interpreted as including things of a similar nature to those already described by the specific words found in the statute. Under this phrase the erection or enclosure included in burglary in the third degree was to be of that character which mankind used for the purpose of sheltering property or for the purpose of transporting the same, or the purpose of trade or commercial intercourse.

6. Same—Breaking into A burial vault and examining body therein CONTAINED NOT BURGLARY.

The defendant was charged in the indictment with having committed the crime of burglary in the third degree, in that on a certain night, with force and arms, he broke and entered the granite and stone building, erection and enclosure, known as the Phelps vault, etc. Upon the trial it was proved that this vault was made of granite, was built entirely aboveground on a stone foundation and covered with a granite roof and the entrance was by a granite door. The interior of the vault immediately inside of the granite door was a compartment which was unoccupied. At the rear of this compartment was a partition, and behind that partition the bodies were enclosed. There were twelve compartments or graves. Evidence was given 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. Held, that the act did not constitute burglary.

7. Statute—Interpretation—Rule.

The rule of construction in such cases is that where general words follow specific words designating certain specific things, the general words are to be limited to cases of the same general nature as those which are specified.

Appeal from a judgment of the supreme court general term fourth department affirming a judgment entered in Broome county, upon a verdict of conviction taken at the oyer and terminer in that county of burglary in the third degree.

Louis Marshall and J. McGuire, for app’lt; George B. Curtiss, district attorney, and N. C. MoaJc, for resp’ts.

The defendant was charged in the indictment with having committed the crime of burglary in the third degree, in that on the 23d 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 enclosure, known as the Phelps vault, the same being a building, erection and enclosure for the inter-, ment of the dead, and being the property of, etc.

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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 ten feet four inches wide, sixteen feet four inches long, ten feet six 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 six feet in depth and eight 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 enclosed. 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 ah 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’s Pleas of the Crown, 556; 1 Hawk. Pleas of the Crown, chap. 38, § 17; 2 Russell on Crimes, 1 (3d vol., 4th ed.); Reg v. Baker, 3 Cox’s Cr. Cas., 581; 2 Wharton’s Cr. 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

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the mansion house of the Omnipotent Gód. Lord Hat.he 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 a 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 commit any felony. The exact terms of the statute are as follows: “Every person who shall be convicted of breaking and entering in the day or in the night-time:

First. Any building within the curtilage of a dwelling house, but not forming a part thereof.

Second. Any shop, store, booth, tent, ware-house 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 commit any felony, shall, upon conviction, be adjudged guilty of burglary in the third degree. 2 R. S., 669, § 17.

From the time of the passage of the Revised Statutes up to 1863, the crime stood as therein defined. By chapter 244 of the Laws of 1863 the above section was amended by inserting in the second subdivision, after the words[1] ‘ or other building,” the words, “or any railroad car, shop, vessel or canal-boat.

We think it plain that all the wurds used in the Revised Statutes, or in the statute 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

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the people on the language used in the Penal Code. That statute in defining burglary in the third degree enacts as follows (sec. 498): “Aperson 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 enclosure.”

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 enclosure.”

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 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: First, 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, second, 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 should 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 cdmmon law and to our statutes, down to the adoption of the Penal Code. The slight alteration made hy the Code as to the intent which is to accompany the breaking and entering from an intent to steal or to commit

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any felony, to an intent to commit any crime, does not militate, as we think, against this reasoning, for that allegation 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 that at common law, 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 forming a part thereof, or in breaking and entering any “ shop, store, booth, etc.,” as already cited.

It is thus seen that up to the time of the adoption of the Penal Code, the structures in regard to which burglary could be committed had been quite clearly defined, and the term “building” as used in connection with the crime of burglary, had a definite and well understood meaning. To attach the same meaning to it in a statute upon the same subject, passed under the circumstances in which this Penal Code was passed, and where there is no such departure from the language used in the Revised Statutes or act of 1863, as to indicate a different and enlarged sense as to the meaning of the word, seems to us to be the natural and the true course to adopt. There would be no propriety in taking the most enlarged meaning anywhere given to the word and accepting it as the true sense in which it, was used in this statute defining burglary in the third degree.

Now what effect upon this reasoning does a reference to-section 504 have ? That section simply says that the term building includes a. “railroad car, vessel, booth, tent, shop,” etc., and leaves out the words “in which any goods,, merchandise or valuable thing shall be kept for use, sale or deposit.” This omission we do not regard as very material as enlarging in any way the definition of the crime, for the specific words used imply substantially the same meaning which is to be gathered from the use of the words, which are omitted, and which is probably the cause or their omission.

The meaning of the term “building,” other than as including therein the structures specifically mentioned in the statute, is still left, as we think, to be gathered precisely in.

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the same way as it would have been if section 504 had not been passed.

We think that the term as used in these two sections of the Penal Code under discussion does not enlarge the character of the crime of burglary to such an extent as to include the structure described in this indictment and in the proof given under it. Careful and painstaking research has been exhibited in the very full briefs furnished us by counsel for the people; but they have succeeded in finding no case which would include a structure, such as this, within the term building in connection, with any statute similar to. ours, in regard to burglary. We are quite sure none su.ch can be. found.

Very many cases are cited by counsel on both sides as to-what is included in the term “building,” when used in various statutes relating to various subjects; such, for example, as the fire law in cities; the English reform act of 1832 (section 27), as to what sort of building was within the section of that act as qualifying the owner or tenant to vote; also, the English act in relation to arson, as to what was a building, and when it w-as sufficiently completed to be within the statute; also, the statute in relation to mechanic's liens, as to what was a building upon which a lien could be placed. We do not think that any good can be gained by a separate consideration of each one of those cases.

We have looked at them all, and the most that can be said is that each court defines the word with relation to the subject matter of the statute which was under consideration, and the best that can be said has been said by many of the judges in those cases, which is, that it is impossible to give a general, absolute and far-reaching definition or meaning to that, word which shall cover all possible cases. They say they can but define the language with reference to the facts in each case and the special subject under consideration, and as determining whether, in the particular case in hand, the structure in question does or does not come within the purview of the statute.

That is all that we can do here. Taking the law in regard to burglary from the earliest period of the common law where that crime is referred to, down to the present time, we feel quite confident that not one case can be found where breaking and entering such a structure as the one in question has been held to come within that crime. We simply intend to decide this case and no other; and, when we come to examine the indictment, and the proof giving a description of the structure, we come to the belief that it is really nothing more than a grave above ground. The

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witness speaks of these various compartments as graves. They are intended solely for the interment of dead bodies, and the structure itself can be put to no other possible use, without altering its nature and purpose. The small room, as it is termed, in the front portion of the structure, between the outside wall and the place for the deposit of the coffins, is used for nothing. No services of a religious nature could be carried on there; and language could not be tortured into calling that place a church, or a place for religious worship. If, instead of being placed above ground, this structure had been placed in a foundation deep enough to receive it, and then used for the purpose of burying the dead, and that only, could there be any question that it was not the subject of burglary, even although sufficient of the structure were above ground to enable one to reach it through a door and steps ? We think not; and we do not think it becomes a building within the statute in regard to burglary any more because it is placed above ground when its sole purpose is that it shall be used as furnishing graves for the burial of the dead.

It is claimed, however, if this structure is not included in .the term building as used in this statute that the words added at the end of section 504, and already alluded to, viz., “ or other erection or enclosure,” would include it.

They undoubtedly would if the widest meaning of those words is to be taken as within the meaning of the legislature, and if whatever could under other circumstance and for other purposes, be called an erection or enclosure, is to .be regarded as the subject of burglary.

We do not attach any such meaning to those words when used in this connection, and we think it quite plain that the legislature never intended any such meaning. A farm lot, or a vacant city lot, might be enclosed with a fence, and inside that fence there would be an enclosure. Can it be supposed possible that the legislature intended that burglary. might be committed by breaking and entering such an enclosure ? In one sense, and in the widest, anything that is enclosed is an enclosure, and the thing which enclosed it would be the thing, the breaking of which and entering the enclosure would be burglary. A bronze statue in a public square is an erection; ánd if it be of colossal size may be broken and entered. Can anyone suppose that burglary could be predicated of such an act ?

These are extreme cases, but they are, nevertheless, within the possible meaning of those terms wdien such meaning is not to be arrived at and limited by an examination of the context.

It is plain that some limitation must be made to the mean

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ing of those words, other than their possible capacity when standing alone.

Now, there are certain rules and canons of construction in such cases as this which seem to us to serve as a perfect guide to the meaning of the language used in this statute. The rule which usually obtains in cases of this kind is, that where general words follow specific words, designating certain specific things, the general words are to be limited to cases of the same general nature as those which are specified. The rule is familiar and needs not the citation of many authorities. One or two may be given from this court.

In the Matter of Hermance ( 71 N. Y., 481 ), a statute authorizing boards of supervisors “ to. correct any manifest clerical or other errors in any assessment or returns, ” was under consideration. The question arose as to what was meant by the term “other errors.” It was claimed that under that language all errors of assessments might be corrected by boards of supervisors. This court held otherwise, and announced that the case was one for the application of the rule that when a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.

Again in the case of People v. N. Y. and M. B. R. R. Co. ( 84 N. Y., 565 ), the action was brought to recover certain real property under the act of 1875, which authorized the people to bring an action to recover ‘ ‘ money, funds, credits and property,” held by a public corporation, etc., wrongfully converted or disposed of; and this court held that the word “property,” although its widest meaning was inclusive of all things that might be owned, yet when taken in connection with the other words used in the statute, and in view of the surrounding circumstances under which the act was passed, it was plain that the word property was not to be given its general and enlarged meaning, but was limited to include only property of the same general character as that already mentioned in the statute, which was personal property.

A late case in the house of lords is a very strong illustration of the rule in question. The leading facts therein are as follows: A steamer was insured by a policy on the ship and her machinery, including the dunkey engine. The policy covered perils of the sea, specially naming many, and then continued: ‘ ‘And of all other perils, losses and misfortunes that have or shall come to the hurt, detriment or -damage of the aforesaid subject-matter of this insurance, or any part thereof.” For the purpose of navigation, the dunkey engine was being used in pumping water into the main boilers, when owing to a valve being closed which

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ought to have been kept open, water was forced into and split open the air chamber of thé dunkey pump. The closing of the valve was either accidental or due to the neglience of'an engineer, and was not due to ordinary wear and tear. It was not held that the injury was not covered by the policy as it was not a peril of the sea, and although it was undobtedly a “loss or misfortune,” yet the specific words in the policy which preceded this general language, it was held, restricted the language to the same genus as the specific words which preceded it. Thames, etc., Ins. Co., v. Hamilton, et al., 12 App. Cases, 484. In the course of his judgment, the Chancellor (Halsbtjry), said: “If understood in their widest sense the words are-wide enough t'o_ include it (the injury), but the rule of construction now fairly established as a part of our law, may be considered as limiting those words. One is, that words, however general, may be limited with respect to the subject-mater in relation to which they are used. The other is, that general words may be restricted to the same genus as the specific words that precede them.” Opinions were delivered by three other judges and they all concurred in the rule limiting the meaning of the language used in the policy, broad as it was, to the same class of perils as were specifically enumerated in the policy.

Applying a rule which is so well established both in England and in this country to the case in hand, we think that the phrase “other erection or enclosure,” is to be interpreted- as including things of a similar- nature to those already described by the specific words found in the statute. If this be so, then, under the phrase in question, the erection or enclosure included in burglary in the third degree was to be of that character which mankind used for the purpose of sheltering property, or for the purpose of transporting the same, or the purpose of trade or commercial intercourse.

In arriving at this conclusion it is not necessary that we should also show that the-act committed by the defendant subjected him to punishment, as a crime of some kind.

We think it was the plain intent of the law making power to keep the distinction clear between crimes against the living and against the property of the living and crimes against public decency, in the way of desecrating: the graves of the dead, or the structures whose only purpose is to be a place for the permanent interment of the dead. Offenses of this general nature are now provided for by the Penal Code, and whether the particular act of this defendant, as provided in this record, constitutes a crime, it is not necessary for us now to determine.

The law should not be stretched out of the fair and

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natural meaning for the purpose of including • within the statute of burglary such a case as this. If the legislature think proper let this law be amended so as to include in plain terms such a case as this record discloses.

The argument that the offense of burglary has been constantly enlarged from what it was at common law and that the intention to enlarge it so as to include a case like this, should be easily imputed to the legislature, we think is not sound. Whether the offense has been enlarged in this state by the legislature it has been, by plain language, susceptible of no misunderstanding. We do not think any intent to enlarge the offense to the extent necessary to make the prisoner’s act burglary can be founded upon the language used in the Penal Code.

_ These views lead to a reversal of the judgment of conviction, and as the defendant cannot be convicted of the crime of burglary, he should be discharged.

All concur.