State v. Dan

By the Court, Belknap, J.: At the common law inhabitancy of the building in which the offense was committed was one of the tests of the crime of burglary. It is said that the words “ house or building, ’ ’ in section 2365 of the crimes act, are used in the same sense as at common law. Our statute as originally adopted declared that the offense may be committed in “any dwelling house, or any other house or building whatever. ’ ’ (Stat. 1861, 66.) The statute was amended in 1869 so as to read “any dwelling house, or tent, or any other house or building whatever. ’ ’ [348] (Stat. 1869, 65.) In its original form the language of the statute was broad enough to include buildings of any kind, regardless of the fact of inhabitancy. (People v. Stickman, 34 Cal. 245.) It cannot be pretended that the scope of the statute was restricted by the amendment. As to the question of a variance between the proof and the indictment, arising from the fact that the tenant had surrendered the possession of the house to the landlord a few hours before the commission of the burglary, we think it cannot avail. The proof shows the ofíense to have been committed iu the house of Joseph Olcovich, as charged in the indictment. The allegation that the house was'occupied by Sadie Nay, as lessee of Olcovich, was, under the facts, immaterial, and could perform no other office than to further identify premises already sufficiently described. (Com. v. Reynolds, 122 Mass. 454; Anderson v. State, 48 Ala. 665.) Judgment and order affirmed.