Supreme Court. Erie General Term.

February, 1866.

*Grover, Marvin, Daniels*and *Davis,*Justices.

#### The People *v.*Ambrose H. Arnold.

Entering the dwelling-house of another in the day time, through an open chamber window, with the intent to commit a crime, does not constitute burglary in the second degree, under the thirteenth section of the statute. To bring the case within that section, it is necessary to show, in addition, a breaking, in the night time, of an outer door, window or shutter, or other part of the house, to get out of the same.

The true construction of that section is that the breaking out in the night time is necessary in all cases to constitute the offense provided for in that section.

The prisoner was indicted at the Allegany Oyer and Terminer, in October, 1865, for the crime of burglary. The indictment contained four counts. The first two charged that the prisoner, on the 20th of September,

1865, at West Almond, in said county, did feloniously and burglariously break and enter the dwelling-house of Abial ■ Weaver, there situate, with intent his goods and chattels to steal, &c. The second and third counts charged that the prisoner, at the same time and place, the dwelling-house of Abial Weaver, there situate, feloniously and burglariously did enter with intent to steal, &c., and in the last count the intent charged, was to commit some crime therein. Neither count in the indictment charged the prisoner with breaking out of said house in the day or night time. The prisoner was arraigned on the indictment and demanded a trial, and the court made an order, sending the same to the Court of Sessions for trial.

The indictment was brought to trial at the "court house, in Angelica, in said county, on the 2d day of January,

1866, before the Court of Sessions of Allegany County. On the trial the people gave evidence tending to prove that the prisoner, on the 20th day of September, 1865, at *631West Almond, in said county, entered the dwelling-house of Abial Weaver, in the day time, and about noon of that clay, through a back chamber window, which was open at the time, by being raised and left open, with intent to commit some crime in said house, and upon an alarm being given, passed immediately down stairs and unlocked the front door, which was locked, the key being on the inside of the door, and passed out about noon of said day and made his escape.

After the district attorney rested the case for the people, .the counsel for the prisoner contended, 1st. That no offense had been proved under the statute defining burglary. The counsel for the people contended the case was brought within the 13th section of the statute.

The counsel for the prisoner insisted the act proved' against the prisoner was not an offense under such section of the statute, and that if it was, then the counsel contended, 2d. That the indictment was defective in not charging the offense described in said 13th section of such statute. The court decided the acts proved against the prisoner, if done with intent to commit a crime in the house, did constitute a crime within the said 13th section of the statute, and that the indictment did sufficiently and properly charge the offense defined in said section. The counsel for the prisoner excepted.

The jury found the prisoner guilty, and the case was removed into this court by *certiorari.*

*M. B. Champlain,*for defendant.

I. The act proved against the prisoner was, that in the day time he entered into the dwelling-house in question, with intent, &c., through an open window in the rear, passed through the house, unlocked the front door and went out about noon.

The court decided that this act constituted the crime of burglary, described in the 13th section of the statute.

*632At common law burglary consists only in breaking into a dwelling, or mansion house, with intent to commit a felony *in the night time.*

' It was settled that if there be daylight enough began, or twilight enough left, so the countenance of a person could be reasonably discerned, it is no burglary. And it was said “the malignity *of*the offense does not'so properly arise from its being done in the dark, as at the dead of night, when all the creation, except beasts of prey, are at rest, when sleep has disarmed the owner and rendered his castle defenseless.” *(2d Russell on Crimes, p.*32; 2 *Blackcstone’s Com., p.*224.)

House-breaking in the day time was not burglary at common law. It is made so by statute in certain cases, not -important to be specified here to present the point. *(People*v. *Fralick, Lalor’s Sup. to Hill & Denio R., p.*63. *Butler*v. *The People,*4 *Denio, p.*68.)

■ II. Though it was said to be the law that the entering into the house of a person without breaking it, with intent to commit some' felony, and afterwards breaking the house in the night time to get out was burglary; yet the doctrine was questioned by good authority, and it was thought expedient to remove the doubt by legislative enactment. This was first done by the statute 12 *Anne Stat., ch.*7, § 3, now repealed by the 7 *and*8 *Geo.*4, *ch.*27; and the statute 7 *and*8 *Geo.*4, *ch.*29, § 11, contains the following enactment upon the subject, namely :

“It is hereby declared that if any person shall enter the dwelling-house of another, with intent to commit a felony, or being in such dwelling-house shall commit any felony, *and shall in either case,*break out of the said dwelling-house *in the night time,*such person shall be guilty of burglary.” *(2d Russell on Crimes, pp.*7 *and*9.)

The offense here described is the one intended to be defined by sec. 13, of thei Revised Statutes, which is as follows; “ Every person who shall enter into the dwelling-*633house of another by day or night in such manner as not to constitute any burglary hereinbefore specified, with an intent to commit a crime, or being in the dwelling-house of another shall commit a crime, and shall *in the night time break any outer*door, window, or shutter of a window, or any other part of said house to get out of the same, shall be adjudged guilty of burglary in the second degree.” (2 *JR.*/S'., _p. 947, *5th ed.,*§ 13. *See also the Revisers' notes.)*

This section describes two separate offenses:

1st. Entering a dwelling-house *without*breaking, with intent to commit a crime, *and breaking out in the night time.*

2d. *Being in a dwelling*and actually committing a crime, and breaking *out in the night time.*

The construction by the court below only applied the words, “ *and shall in the night time break any outer*door, *&c.,*to get out of the same” to the second act above specified, and not to both. 1st. By the fair and grammatical construction of the language of 'the section the words should be applied to both. 2d. The history of the law clearly shows that they apply to both. That the true construction of sec, 13 is the same as if it read precisely as the statute of the 7 *and*8 *Geo.*4, above quoted, from which this enactment was copied, and contained the language, *“and shall in either case"*break out of said dwelling-house *in the night time.*

UL By the construction of the court below, a person who enters with an intention to commit a crime unexecuted, without breaking *in or out in the night*time, is made guilty of the same degree of burglary as the person who *actually commits*a crime in the dwelling-house *and then breaks out in the night time.*

IV. By sec. 18, the breaking into the dwelling-house of .another, with intent, &c., in the day time, is made burglary *in the third degree.*This construction makes the act of entering in the day time with like intent *without breaking,*burglary in the *second degree,*a much graver offense *634than if the prisoner had actually broken into the dwelling.

V. It is very clear that the court erred in holding the act proved against the prisoner a burglary under the 13th section of the statute, and it is not pretended that it is within any other.

The conviction should be reversed.

*James S. Greene*(District Attorney), for the people.

*Per curiam.*

It is plain that the exceptions of the prisoner's counsel are well taken, and that the facts proved do not bring the case within the 13th section of the statute. The conviction tiannot be sustained.

Conviction reversed and new trial granted.