The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-05-10

Before Judge Miller.
fAs riai Il criminal was resumed yesterday
nsning In this court
zazxsp suaaLAar-rm Law A. TO rxxxxru HOUSES
william Ryan indicted for having bursiariousy
.ssrsd The James Heath pls Third avenue be-
svssn sxteth and sxty-nrss streets. the night tme
~ the month Of April last and stolen therefrom some
hs0kehold articles
Mr. A. q. Hall, District Attorney conducted the prose-
eston the part Of tho people The prisoner de-
Tended by MT Edward Mccarthy.
The evidence for the prosecution 70 the effect that
Nr Hsah leases apartments In tenement house. His
vse bad gone down stairs 70 store Immediately under
sAcse apartments where Mr. Heath conducts business.
She locked the door, leaving the gas burning and white
The store she heard her chld cry she proceeded to
70 her rooms and the she met three men,
ssstanoe she. seeing tia, the door Of her
rooms bad been opened though she had locked
,ssm % placed NJ. "I S.ua on Ssn fac" s G1'
pushed her assdss Attracted BY her cries. her hus-
b.sd came 70 her assistance Mr. Heath seized knife
and chase In hs testimony the stand he stated
thai While puung the prisoner the latter stopped and
farming rcand threatened TO shoot his pusaer There
= he prisoner while running away, snort distance
n ..ea MT hsashs dropped two silver spoons and .
I'D there Mr. Heath identified them as his property
Before the facts az the left 10 The jury, Mr.
nccrhy raised an objection 10 the Indictment He said
49, soe 'noicment ~ matter OF TACT, aeecd that the
burglary vn committed In apartment In which Ellen
He1tn vas living A. the time The offence vas perpesrnfed
The evidence disclosed II facts and there-
Tore, ne held that that the Indictment He
further argued that A. there proof that the outer
door Of the tenement house broken no burglary had
been committed
Mr.. A. q. Hail. on The other side held under . IA.
cssson Of Judge Emmett that Il WIS mol nsrcrearv IA
show In order 70 constitute a burglary in ,cnss,ers
house that door had been broken omen Ia
been held he said, since the days of Lord Hale h,t
apartments leased 10 separate families IN ,ns
same house would be burglary Il the outer door os
those apartments were broken up. Tho insertion on
Ellen Heafh's name the indictment sarplusaQe
Judge Miller said the variance between the allegation
IN The Indictments and the proof touching NOT In
be opinion great 10 justify bin In taking the case
from the jury. He would let the 80 70 jury on
the facts
Mr. Mccarthy, In an able speech, summed up the c~s
for the prisoner.
Tho Jury retired and after elaboration, returned
into court with verdict OF guilty.
MT Mccarthy moved for arrest 81 Judgment on two
grounds. First that ere was variance between the
evidence and the allegation In the Indictment thai Mira
Heath living In The house a The time the burglary
Vas committed; and secondly because no outer door
wa broken open and because no proof was offered that
the room from which The articles sto en- was locked
Judge Miller ovcrraled the point and gave MI Nc
Carthy the benefit Of an exception
Mr. A. O Han moved for the Judgmen. Of the Court
upon the prisoner
M hocsrtby sad this was unusual He had bsea