People v. Calvert — 51 N.Y. St. Rep. 186

Majority

p. 186

The People, Resp’ts, v. George Calvert, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Burglary — Apartment house.

Defendant was indicted for burglariously entering the house of one Kate Higgins. Mrs. Higgins occupied the second floor of an apartment house with her husband. While she was alone therein, she heard a noise, and found defendant in the lower hall, and he left on seeing her. A few days later he called and rang the bell, and she saw him take a paper from his pocket. On being arrested two days later, there was found on him a key which fitted the front door of this house, and a letter telling Mrs. Higgins that her husband was hurt, and asking her to come to the hospital. Meld, that these facts justified a conviction.

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

William J. Courtney, for app’lt; James W. Ridgway (John F. Clarke, of counsel), for resp’ts.

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 shows that Kate Higgins lived with her husband at No. 60 Heywood 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:

“Hear 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 Heywood 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.

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

p. 187

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 offense against her possession for the defendant to break it open with intent to steal. Neither § 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.