Supreme Court, General Term, Fourth Department.

*April,*1887.

#### PEOPLE v. RICHARDS.

Burglary. Breaking into family vault.

Under the Penal Code it is not necessary to a conviction for burglary in the third degree that an intent to steal or to “ commit any felony ” shall be shown, provided the intent to commit any crime is averred and established.

A family vault built in a cemetery is a “ building or erection or enclosure,” as defined in the Penal Code and a person who breaks and enters the same with intent to commit a crime therein, is guilty of burglary in the third degree.

When acts are prohibited by a statute it is not necessary for conviction for the jury to find that the defendant was actuated by express malice. It is enough to find that he was intentionally guilty of the acts forbidden.

If the jury found that the defendant broke into a vault in a cemetery with intent to remove a “ gravestone ” and that the tablet or stone in front of a coffin inscribed with the birth, date of death and name of the deceased whose body was enclosed in said coffin was a “gravestone” or *“*monument,” they found that he broke in with intent to commit an act or acts prohibited by Laws 1883, c. 133, § 8, as well as by § 647 of the Penal Code.

In the indictment the ownership of the family vault broken into by defendant was alleged to be in three persons named and others to the Grand Jury unknown, who are the heirs at law and legatees and devisees under the will of Robert S. Phelps. It appeared on the trial that the three persons named were not the heirs at law, but that the heirs at law and owners of the vault broken into were twelve other persons. The court permitted the amendment of the indictment by striking out the names of three persons therein stated to be heirs at law of Robert S. Phelps, *356and by inserting in the place thereof the names of the twelve persons whom the proof showed to he the heirs of said Phelps and owners of the said vault. *Held,*no error.

The acquittal or conviction on an indictment in order to be a good defense to a subsequent indictment must he for the same identical offense charged in the second indictment.

Appeal by defendant from a judgment of conviption of 19 December, 1885, of burglary in the third degree of the Court of Oyer and Terminer of the County of Broome.

The indictment in this case was as follows :

“ The Grand Jury of the County of Broome by this indictment accuse Dan. S. Richards, William E. Taylor and Robert Richards of the crime of burglary in the third degree, committed as follows, to wit: The said Dan. S. Richards, William E. Taylor and Robert Richards on or about the 23d day of October, A. D., 1884, with force and arms, in the night time thereof, at the city of Binghamton, in Broome county aforesaid, the granite and stone buildihg, erection and enclosure, known as the Phelps vault, the same being a building, erection and enclosure for the interment of the dead, and being the property of, and owned by William G. Phelps, Francis A. Phelps, and Lizzie S. Phelps and others to the grand jurors unknown, who are the heirs at law of and legatees and devisees under the will of Robert S. Phelps, deceased, and said building, erection and enclosure, being a part of the estate left by the Robert S. Phelps, deceased, which said building, erection and enclosure is situated in Spring Forest Cemetery, in said city of Binghamton, and they the said Dan. S. Richards, William E. Taylor and Robert Richards, then and there, feloniously, willfully, unlawfully and burglariously,' did break and enter, by breaking, bursting and unfastening the lock and staples which secured and fastened the outer iron gate and door of said Phelps’ vault, and by forcibly. breaking and bursting the said outer front gate and door, and by unlocking and unbolting, and forcibly bursting open the granite and stone door of said Phelps’ vault, with an intent, maliciously, willfully, secretly *357and unlawfully to deface, disfigure, remove and destroy a grave stone, marble tablet and monument, the same being works of art, and useful and ornamental improvements, in and upon the said Phelps’ vault, and being upon private grounds, and not being the property of the said Dan S. Richards, William E. Taylor and Robert Richards, or either of them, but being the property of and owned by the aforesaid William G. Phelps, Francis A. Phelps, Lizzie S. Phelps and others to the said Grand Jury unknown, who are the heirs at law of, and the legatees and devises under the will of the said Robert S. Phelps, deceased, and being a part of the estate left by said Robert S. Phelps, deceased, and the said marble tablet and grave stone, intended to be so injured and defaced, designated the location of the body of the said Robert S. Phelps, deceased, in said Phelps’ vault and on which marble table and grave stone was inscribed the name age and date of the death of the said Robert S. Phelps, deceased, and said tablet and grave stone sealed and enclosed the catacomb in which the body of the said Robert S. Phelps, deceased, was interred, and the said marble tablet and grave stone and monument so intended to be defaced, injured and destroyed as aforesaid being real and personal property, and worth the sum of and of the value of ( $100) one hundred dollars, and with an intent to unlawfully, wrongfully, maliciously, knowingly and secretly, injure and destroy the marble and stone which fastened and enclosed the said catacomb, and the catacomb, casket, cement, plaster and lead incasements, and materials which protected and in which the body of the said Robert S. Phelps, deceased, in said vault was buried and being preserved. The said marble catacomb, casket, cement, plaster and lead incasements and materials, so intended to be injured, being real and personal property, and bejng connected with, in and forming a part of the said Phelps vault, and not being the property of and owned by the said Dan. S. Richards, William E. Taylor and Robert Rich-, ards or either of them, but being owned by and being the property of the aforesaid William G. Phelps, Francis A. *358Phelps, Lizzie S. Phelps and others, to the said grand jurors unknown, who are the heirs at law of and legatees and devisees under the will of the said Robert S. Phelps, deceased, and being a part of the estate left by the said Robert S. Phelps, deceased, and being of the value of one thousand ($1,000) dollars, contrary to the form of statute in such eases made and provided, and against the peace of the said people of the State of New York and their dignity.”

Sherman D. Phelps, of the City of Bingham, died in 1878 leaving two sons, Robert S. Phelps and Arthur D. Phelps, as his only heirs at law. Arthur D. Phelps died on the 21st day of October, 1880, leaving no wife or children. Robert S. Phelps died on the 14 day of December, 1881, leaving a wife, Hattie S. Phelps, a daughter of the defendant, Wm. E. Taylor. Robert S. Phelps left no children.

In 1862 Sherman D. Phelps became the owner of a burial lot in the Spring Forest Cemetery, of the City of Binghamton. He took possession of it, made interments therein and was the owner of it at the time of his death.

In the summer of 1881, Robert S. Phelps caused to be erected upon said burial lot a building or family tomb for the interment of the dead. It was built of granite, wholly above ground, and contained twelve places for bodies. Upon the death of Robert S. Phelps, his wife made an agreement with Dr. Henry O. Ely to embalm the body of her husband.

After the embalming was completed the body was dressed in an armor of sheet lead. The lead casing was immediately around the body over the clothes. The body was then placed in a wooden casket, made for that purpose. The space in the casket not taken up with the body and lead armor, was filled with gummastie. On the top of this gummastie was about five inches of cement which, after cooling, became as hard as stone. The cover of the original casket was placed on and a lead encasement over and around everything for an outside covering, intending to make the place occupied by the body air-tight. The casket containing the body and so prepared for preservation, was placed m one of the places in *359the Phelps Tomb for its final resting place and was there on the nights of October 22 and 23, 1824.

The vault was made of granite at a cost of $5,000.

It was wholly above ground, built on a stone foundation 10 feet 4 inches wide, 16 feet 4 inches long and 10 feet 6 inches high. It was covered with a granite roof, the entrance was by a granite door protected by a bronze gate. In the front of the interior is a room 6 feet by 8. Back of this there are twelve spaces (like pigeon-holes ) to receive caskets, seven of which were occupied. The casket containing Robert’s body was< deposited in the third space from the bottom, in the middle column, in front of which was a marble slab about two feet square, which was movable sliding in grooves, like a sash, on which was inscribed “ Robert S. Phelps.” “Born May 18, 1885.” “Died Sept. 14, 1881.”

Hattie S. Phelps died October 25th, 1882, and before Dr. Ely had been paid for his services in embalming the body of her husband. Her father, the defendant Wm. E. Taylor, was appointed administrator of her estate.

An action in the Supreme Court was brought by Dr. Henry O. Ely against Wm. E. Taylor as administrator, etc, to recover for the value of his services in the embalming of the body.

The complaint in said action substantially alleged that Dr. Henry O. Ely had made an agreement with Hattie S. Phelps by which she promised to pay him $5000 to embalm the body of her husband, and that he had fully performed such work.

The defendant set up in his answer that the contract was void by reason of fraud and undue influence ; denied that the body had been embalmed, and alleged further that Dr. Ely agreed to embalm the body so that it would be as white as marble and last forever, and also that the body had not been qnoperly embalmed.

Upon the trial of said action and before the 3d day of (September, 1884, all of the persons, including some of the *360most reputable citizens of Binghamton) who inspected the body after the embalming was completed, were sworn in the behalf of the plaintiff, who gave evidence tending to show that the body had been embalmed.

After the plaintiff had rested his case the defendant Dan. S. Richards made preparations to carry out a scheme by which the body of Robert Phelps could be seen and examined. He thought that by an examination of the body and by the aid of an expert witness whom they could employ, enough evidence could be produced to in whole or in part defeat the plaintiff’s claim.

They had heard by listening to the evidence which was given in their presence upon the trial of the manner in which the body had been embalmed and of the lead encasement* plaster, cement and other materials which surrounded the body, and without asking the consent of the relatives and friends of the deceased, the work was undertaken.

During the time for which the case was adjourned and on the nights of the 22d and 23d of October, the defendant, Dan. S. Richards, went to Spring Forest Cemetery, broke the lock on the outer iron gate of the vault, unlocked the inner door with a key, entered the tomb. He first attempted to remove the tablet or gravestone in front of the body of Robert Phelps and in so doing broke it. He then, with the use of a crowbar, pried up and broke off the top of the coffin, and broke the heavy cement and plaster slab which covered the body* broke out the end of the coffin and chisled and cut through the gummastic and lead encasements until the feet and limbs of Robert Phelps were exposed. Being disturbed by persons who were sent to watch the tomb, he made his escape.

The Grand Jury of the County of Broome, in December following, indicted Dan. S, Richards, Wm. E. Taylor and. Robert Richards, the case resting on circumstantial evidence.

Three indictments were found, one for burglary in the third degree, one for injury to property under § 647 of the Penal Code, and for injury to property under § 654, of Penal Code. The defendant demurred to all the indictments.

*361The demurrers to the indictment for burglary, and to the one under § 647 of the Code were overruled, and the demurrer to the indictment found under § 654 was allowed upon, the ground that the offense came under § 647.

The defendants were placed upon trial on the indictment for burglary in the third degree, Robert Richards was discharged by the Court, Wm. E. Taylor was equitted and Dan. S. Richards found guilty.

The defendant Dan. S. Richards testified as follows: “I had no other intent in opening the vault than to see in what, condition the body was, excepting to show it to others. I opened that vault on the night'of the 22dof October, between the hours of ten and half-past eleven. I did not examine the body that night. I went the next night and took up the business that night where I left, it off the night before. The first thing I did, I cut with my jack-knife the lead covering from the end of that wooden box ; then with the point of a steel bar I broke out the end of that box, which was made of a pine board less than an inch thick. It was an inch board, surfaced on both sides, which reduced it to 7-8 of an inch. That exposed to me the end of a mass of gum, which to my senses I could call •nothing but resin—still, I suppose, it was gummas tic from the evidence in the case, that had been poured in warm, and was-mixed through and through with oakum. Over that was a piece of cement slab, made of Portland cement, four or five inches thick, and a cover over that of about half an inch, of plaster of Paris, put on in a liquid shape. Above that was a vacant space of about three inches to the top of the box. The first night I worked at the end of that cement with a. bar and could make but little impression on it, and the gum could not be worked out with a bar ; it was not solid enough to chop ; it was almost in a soft state, and thoroughly mixed through with this oakum, and I adjourned at about that stage of the proceeding and went back the next night, and about the first thing. I did was trying to get in at the top of the box. I lifted with the crow-bar this cement slab, and it broke from its own weight, and the piece eighteen inches long was then *362taken out, and then I worked in the wax with a sharp chisel an inch and 7-8 broad. After working from the top a time I commenced operations at the bottom, and the coating was very thin before I struck lead, and I was able to get out the gum to that lead, and as soon as I reached the lead I found it enclosed a cavity, and I worked away at the gum, working under the mass of gum, enlarging my hole all the while until I discovered that I struck the heel of the gaiter with the pick and then I stopped. I had been looking for the head of the patient all the time, and I immediately saw there were two gaiters there and I had very slightly injured the heel of the one on the right foot, and I struck matches and held them into the cavity, and I saw a suit of clothes lying there—that is, I could see up to the waist. They were quite flat. It was :almost uncertain if they enclosed anything, and I discovered that there was a pine board. I removed sufficient of the material so that both legs could be examined. I didn’t remove up to the knee. I removed so I could look in and see the knee, and by the aid of matches beyond the knee and up to the waist of the body I suppose was there—hips, perhaps, I shoulp .say. My object was to get some portion of the body exposed •so that the physicians of Binghamton and professional embalm•ers could examine it if I could get them there. It was for the sole purpose for the examination of these physicians and professional embalmers, if I got them, to be used as evidence upon the issues in that case as to the embalmment. It is true, as some of these witnessess state, that I bought a lock and pick-axe both. I had a key of the vault with which I opened the door. I got possession of that key sometime in the summer of 1883, and held possession of it until it was taken out •of the door where I placed it, as stated yesterday.”

J. McGuire, for defendant Richards, appellant.

Geo. B. Curtiss, district attorney for the people, respondents.

Haedih, P. J.

Section 498 of the Penal Code defines *363"burglary in the third degree and depiares, “ a person who either, 1st, with intent to commit a crime therein breaks and enters a building or a room or any part of a building is guilty of burglary in the third degree. The word “ building” as used in this section is defined in section 504 of the Penal Code and declared to include a railway car, vessel, booth, tent, shop, “ or other erection or enclosure.” The last section is new, and read in connection with section 498 gives to the latter section the same significance as though it read “ building, or other erection or enclosure.”

We think no error was committed by the trial judge in holding that the defendant had entered a building, erection or enclosure, which was named in the 498th section defining burglary.

*People*v. *Mc*Closky, 5 Park, 57, decided under the Revised Statutes, held that a room in the basement of the courthouse at Utica occupied by the Gulf Brewery was a building or ■“ storehouse,” and that breaking into the room was a violation of the statute against burglary in the third decree.

Since that case was decided, the Revised Statutes in regard to burglary in the third degree have been superseded by the sections of the Penal Code from which we have quoted, and the words “ or other erection or enclosure” introduced into the statute. See 2 R. S. 669, sec. 17.

Under the Revised Statutes the breaking into “ a building within the curtilage of a dwelling-house, but not forming a part thereof, or, 2d, any shop, store, booth, tent, warehouse 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 to commit any felony,” was declared burglary in the third degree.

In the section of the Revised Statutes as to burglary in the first degree, 2 R. S. 669, sec. 10, it was provided that if the breaking was “ with intent to commit some crime” the offense was made out. It was not necessary to specify what kind of felony was intended in the indictment for burglary in the first degree. *Mason*v. People, 26 N. Y. 200.

*364But the statute language found in the Penal Code as to burglary in the third degree, as a comparison thereof with the Revised Statutes will show, is quite dissimilar.

If the entry into a building, “ erection or enclosure” with intent to commit a crime therein, the Penal Code is violated.

It is not needful to a conviction that an intent to steal, or an intent to “ commit any felony” shall be shown, provided the intent to commit any other crime is averred and established. Penal Code, sections 498, 499, 504.

A breaking may be made by opening a door tightly closed, whether locked or latched. *Tickner*v. People, 6 Hun, 657. Penal Code, § 501.

The evidence shows the outer bronze gate was broken by defendant.

If the defendant entered the vault “ or erection or enclosure” with intent to commit a crime therein, then he violated the statute against burglary in the third degree.

Upon the trial the question as to the intent with which he entered was submitted to the jury, and their verdict in effect finds that the intent “was to commit a crime.”

We think the question was proper for the jury upon all the evidence before them, and that we should not disturb their verdict upon that question. Penal Code, §§ 3, 4, 5, 6, 647, 675.

The stone in front of the casket was broken, the top of the casket was broken and also the end of it, and the lead covering over the top of the casket was broken. The cement coving the body was broken and the oakum and gum incasing the body was broken and the slipper and some of the clothing of the body was displaced and disturbed and one of the legs was punctured.

Defendant testifies that he took a bar to enable him to remove obstructions of the box, the cement and gummastic. “ It was with that intent I took it.”

When acts are prohibited by statute and the evidence clearly shows the defendant has done them, it is “ wholly un*365necessary for the jury to find that the defendant was actuated by express maliceit is enough to find that he was intentionally guilty of the acts. *People*v. Reed, 47 Barb. 243.

If the jury found that the defendant broke in with intent to remove a “ gravestone” and that the tablet or stone in front of the coffin inscribed with the birth, date of death and name of the deceased was a “ gravestone” or “ monument,” then they found that he broke it with intent to commit an net or acts prohibited by section 8, of Chapter 133 of the Laws of 1847, as well as by section 647 of thé Penal Code.

In the indictment before us allegations were inserted to the effect that the vault or building or erection or enclosure, broken into in the night-time by the defendant was “ the property of and owned by William Gr. Phelps, Francis A. Phelps, and Lizzie S. Phelps and others, to the grand jurors unknown, who are the heirs at law of and legatees and devisees under the will of Robert S. Phelps, deceased, and said building, erection and enclosure being a part of the estate left by Robert S. Phelps, deceased, with an intent maliciously, willfully, secretly, and unlawfully to deface, disfigure, remove and destroy a gravestone, marble tablet and monument, the same being works of art and useful and ornamental improvements in and upon said Phelps vault, being the property of and owned by the aforesaid William Gr. Phelps, Francis A. Phelps and Lizzie S. Phelps and otheys to the said grand jury unknown, who are the heirs at law and legatees and devisees under the will of the said Robert S. Phelps, deceased, and being part of the estate left by said Robert S. Phelps, deceased.

By the proofs and concessions upon the trial it appeared that the Spring Forest Cemetery was incorporated in 1853, under chapter 133 of the Laws of 1847: that the association by its deed, August 13, 1862, conveyed to Sherman D. Phelps, father of Robt. S. Phelps, the cemetery lot whereon the vault was located, “ with the conditions and limitations mentioned in said legislative enactment,” that Sherman D. Phelps did not convey or transfer said burial lot in his lifetime, that *366the cemetery association “ had the general management of the cemetery in which the vault was built; ” that Sherman D, Phelps took possession of the lot immediately upon receiving the deed from the cemetery association, and remained in possession until his death in November, 1873. In 1881, at the request of R. S. Phelps, the vault was constructed at a cost of $5,000, and the keys thereof delivered to Robert S. Phelps. It was conceded that the title to the burial lot acquired by S. D. Phelps was inalienable either by grant or devise, an interment having been made thereon during the lifetime of S. D. Phelps. .Upon his death the title to the lot vested in his heirs at law.

. It was conceded by the district attorney upon the trial that, the “ three persons named in the indictment” are not heirs at. law of Robert S. Phelps, and it appeared they are not heirs at law of Sherman D. Phelps.

The defendant moved for his discharge upon the ground of a variance in the allegations in the ownership of the property, and the proof, and because it appeared by the proof that the heirs at law of Robert S. Phelps are Harriet Phelps and eleven other • persons named. The motion was denied and defendant excepted.

Then the district attorney moved to amend the indictment, by “ strildng out therefrom the names of Francis A. Phelps, William G. Phelps and0Lizzie S.- Phelps, heirs at law and devisees of Robert S. Phelps, and insert in the place thereof the names of Harriet Phelps and eleven others as owners of the property described in the indictment.”

The defendant “ objected to the allowance of such amendment to the indictment as not being within the power of the court to allow, and the court has no power to change or alter an indictment in a material matter.” The court overruled the objection and allowed the amendment to be made, and the same was made and an order to that effect was granted by the court. To that ruling the defendant excepted.

There is no mention made of the order in the notice of appeal from the judgment.

*367It may be assumed that the variance between the allegations of the indictment and the proof of ownership of the property of the vault and contents would have been fatal under the law as it existed prior to the adoption of the Code of Criminal Procedure. 2 Bishop on Criminal Procedure, §§ 137, 138, p. 64; *Quinn*v. *People,*71 N. Y. 562; *Biggs*v. *People,*8 Barb. 551.

However, all forms of pleading in criminal cases existing, prior to the Criminal procedure were abolished, and “ the rules by which the sufficiency of pleadings is to be determined and prescribed by the Code of Criminal Procedure, section 273. This brings us to the inquiry as to whether the variance is fatal, and the indictment non-amendable under the Code of Criminal Procedure.

In section 281 of the Code of Criminal Procedure it is declared that “ when an offense involves the commission of, or an attempt to commit a private injury, an erroneous allegation as to the person injured or intended to be injured is not material.”

The injury referred to in the indictment was of property belonging to private persons, and in some sense the attempt was to commit “ a private injury.”

But whether the new provision of law found in section 281 is applicable to and controlling of the question here presented, need not be conclusively determined, but effect may be given to the section when read in connection with section 293 relating to amendments, and both sections interpreted together. By the latter section power is given to allow amendments of indictments. We have already held that section to be valid and constitutional. *People*v. *Johnson,*4 N. Y. Crim. Rep. 591, and our decision was affirmed by the court of appeals in the January term, 5 N. Y. Crim. Rep. 217. In that case the amendment changed the name of the female seduced under promise of marriage, and also the name of the town in which the crime was alleged to have been committed.

By section 293 power is given to the court to allow certain *368amendments to obviate the difficulties presented by a “ variance between the allegations therein and the proof,” viz.: 1st, in respect to time, or 2nd, in the name or description of any place, person or thing.”

By reference to the indictment it is seen that the allegation therein referred to the “ thing” or property affected by the crime. In describing it the pleader averred that it belonged to “ the heirs and legatees” of Robert S. Phelps. By the way of a further description of it the pleaders stated that it was owned by or belonging to the persons named, who were the heirs at-law of Robert S. Phelps. In respect to the ownership, the averment that it belonged to the heirs of Robert S; Phelps was correct, and accords with the proof. But the averment that the ownership was in three persons was erroneous. In that respect the descriptive fact of the property or thing which descriptive averment tended to identify the property or “ thing” was at variance with the proof. The “ thing” would have been more accurately described and in accordance with the proof of ownership if the averment had been that the ownership of the property or “ thing ” was in “ the heirs at law of Robert S. Phelps who were the twelve names that appear as such and in the amendment allowed.

Again, “ the persons” whom the amendment undertook to describe as “ heirs at law and legatees of,” etc., were described by a further addition of three names, whereas it turns out that the attempt to fully describe “ the heirs at law of R. S. Phelps” was.erroneous, in that the heirs did not bear the three names given, but “ the heirs at law” bore twelve other names.

The description of “ the persons ” of the heirs at law as defective, erroneous, and the amendment makes an averment which corrects the description of “ the person or persons ” of the heirs at law of said Phelps.

In *People*v. *Johnson, supra,*the “ place ” named in the indictment was stricken out and the amendment substituted “ Champion ” for “ Wilna ” and for a change of person seduced *369the name in the indictment of Mary Olyphant was changed by the amendment to Mary Olivert.

It may be further observed that in the allegations of ownership of the “ thing or property,” coupled with the names of the three persons named are the words viz: “ and others to the grand jurors unknown who are the heirs at law of, and legatees and devisees under the will of Robert S. Phelps deceased.”

The word “ others ” if applied to the persons who by the proofs appear to be the heirs at law of Robert S. Phelps, may be regarded as an indefinite and imperfect description -of “ the heirs at law of Robert S. Phelps ” and a meagre description of the person or “ persons ” and the amendment served to make definite and perfect the description of the “ others ” who were the heirs at law of Phelps.

We are constrained to declare the amendment allowed only perfected “ the name or description of the person or thing.”

The court did not exceed its power in allowing the amendment and disregarding the variance between the original allegations of the indictment and the proof. Sections 281, 293, 294, Code of Criminal Procedure. *People*v. Johnson, *supra.*

Defendant put in evidence a judgment roll filed upon the decision of a demurrer interposed to an indictment against the defendant charging him with “ the crime of unlawful and willful injury to and destruction of real and personal property committed ” as alleged in that indictment.

To that indictment a demurrer had been interposed and sustained and defendant discharged. The grounds of the demurrer were, viz.:

I. F or joining “ in one count separate and different offenses,” that is to say, a charge of the commission of a misdemeanor; II. That an injury to a tomb, catacomb or vault, or any part of the same is a misdemeanor;. an injuy to real and personal property when the value of the same is $25.00 and where the punishment is-not specifically prescribed by statute. III. *370That the personal property does not belong to the heirs at-law or devisees of Robert S. Phelps, deceased.

■There was no demurrer upon the ground “that the facts stated do not constitute a crime ” which ground might have-been taken. Section 323, Code of Criminal Procedure.

It is nowhere made to appear by the demurrer, .decision or judgment roll that the court held that the facts stated in. the indictment did not constitute a crime.

Besides, the crime alleged is not the crime alleged in the-indictment for burglary now before us.

The section- which declares the effect of a decision upon a demurrer only declares such a decision “ is a bar to other prosecution for the same offense.” Section 327, Code of Criminal Procedure.

The acquittal or conviction of an indictment in order to-be a good defense to a subsequent indictment must be for the same identical offense charged in the second indictment. 1 Russ, on Crime,.836 ; 1 Blacks. Com. 336; opinion of Allen, J., in *People*v. McClosky, 5 Park. Crim. Rep. 59.

It is now provided by section 500 of the Penal Code, viz.: “ A person who having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the-burglary, and may be prosecuted for each crime separately, or in the same indictment.”

There is nothing in the judgment record introduced to-show that the court held that the defendant had not committed or did not intend to. commit a crime within the building entered. In the grounds of demurrer the defendant asserted that the facts stated, viz., that an injury to a tomb,, catacomb, or vault, or any part of the same, is a misdemeanor. We are of the opinion that the court did not err in refusing to hold that the “ judgment is a bar to any proof of the commission of the acts charged in the indictment now upon trial ” or in refusing to strike out “ all the testimony which shows the commission of the acts charged.”

We are of the opinion that defendant Richards had no ex*371press or implied authority from any person, entitled to give the same, to break in the vault or commit the acts charged. Taylor the father and administrator of Mrs. Phelps, had no title to the vault, or to the stone monument, slab or tablet in front of the coffin of Robert S. Phelps, deceased. The acts of the defendant were unauthorized and unlawful. *Reg.*v. *Sharp,*40. Eng. Law and Eq. 581, *Snyder*v. *Snyder,*60 How. 370.

Several rulings were had and exceptions taken during the trial, to which reference in this opinion has not been made ; but an examination has not satisfied us that any error was committed which should lead to a reversal, as section 542 of the Code of Criminal Procedure requires the court to disregard “ technical errors or defects or exceptions which do not affect the substantial rights of the parties.”

*Schrump*v. *People,*14 Hun, 10; *People*v. *Gonzales,*35 N. Y., 49; *Stokes*v. *People,*53 N. Y., 165; *Coleman*v. People, 58 N. Y., 555; *People*v. *Burns,*33 Hun. 300; 2 N. Y., Crim. 415 ; *Cox*v. *People,*80 N. Y., 500.

If the foregoing views are approved, the conviction and judgment should be affirmed, and the proceedings remitted to the oyer and terminer of Broome county, with directions to enforce the same.

Boabdman, J., concurs; Folleto, J., not voting.

Note.—As to when a power acquittal is a defense see *People*v. *Burch,*5 N. Y. Crim., 26 avd. vote p. 32.