People v. Haight — 26 N.Y. St. Rep. 33

Majority

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The People, Resp’ts, v. Charles Haight, App’lt.

(Supreme Court, General Term, Third Department,

Filed September 21, 1889.)

Headnote

Burglary — Indictment—“Stove works ” does not imply a building or INCLOSURE.

An allegation of an indictment which charges the defendant with feloniously and burglariously breaking and entering the stove works of a person named is not a sufficient allegation that he broke or entered a building or room, or part of a building, within 65 498, Penal Code. The word “ stove works ” does not necessarily imply an inclosure or building.

Appeal from judgment of conviction of burglary in the third degree and from" an order overruling demurrer to the indictment.

C. D. B. Hasbrouck, for app’lt; A. B. Gardiner, district attorney, for resp’ts.

The prisoner was indicted for the crime of burglary in the third degree. He demurred to the indictment. The demurrer was overruled. Thereupon he pleaded not gnilty; was tried, convicted and sentenced. He now appeals from the judgment, in order to review the order overruling the demurrer.

The indictment charges that on a certain day, aiid in the night time, he “ feloniously and burglariously did breák and enter the stove works of one Zebulon Hunt,” with the intent to steal, etc., and did steal certain property.

The simple question is whether the allegation that he did break and enter into the stove works of one Zebulon Hunt is a sufficient allegation that he broke and entered a building or room, or part of a building. Section 498, Penal Code, is defined in section 504 to include a railway car, vessel, booth, tent, shop or other erection or inclosure.

It is hardly to be supposed that a place inclosed by a fence is

p. 34

an “inclosure,” within meaning of these sections. People v. Richards, 108 N. Y., 148 ; 13 N. Y. State Rep., 515.

The words “ stove works ” do not necessarily imply a place-inclosed by a fence. Still less do tliey imply of necessity a building. These words are used to mean all the grounds used by a manufacturer for the manufacture of stoves. They include the-buildings, and also the grounds about the buildings, whether such grounds are fenced in or not. They are words of the most general meaning. Webster’s Dictionary, under “Work.”

One who entered into grounds used for the manufacture of stoves might in the legal phrase be said to break into the-close of the owner. And plainly the allegation of the indictment does not necessarily include the breaking into any building, or even into any grounds inclosed by a fence.

This is not an imperfection in form such as is spoken of in section 285, Code Crim. Procedure. Notwithstanding the liberality with which indictments may now be construed, they must allege facts which show that the crime has been committed. The breaking and entering into a building is a material part of the crime here charged, and must be alleged.

We think the indictment is defective, and that the demurrer should have been sustained.

Judgment reversed, demurrer sustained and prisoner discharged.

Putnam and Fish, JJ., concur.