[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 424 The Grand Jury for the Parish of Orleans returned an indictment against Peter Gendusa, a white man, and John Beecham, a negro man, reading as follows, viz.:
"The Grand Jurors of the State of Louisiana duly impaneled and sworn in and for the body of the Parish of Orleans, in the name and by the authority of said State, upon their oath, present that one Peter Gendusa and one John Beecham, each, late of the Parish of Orleans, on the seventeenth day of July in the year of our Lord, one thousand nine hundred thirty seven with force and arms in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans did feloniously, wilfully and unlawfully enter number eleven thirty five (1135) Marais Street, this City, home of Thomas Dupont and Miss Jennie Dupont, in the night time, with intent to rob, steal and murder, armed with dangerous weapons, did actually assault Thomas Dupont and Miss Jennie Dupont, two persons lawfully therein; contrary to the form of Statute of the State of Louisiana in such cases made and provided and against the peace and dignity of the same."
The crime intended to be charged is the crime denounced by Section 850 of the Revised Statutes as amended by Act 21 of 1926, which reads as follows, viz.: *Page 426
"Whoever, with intent to kill, rob, steal, commit rape, or any other crime, shall, in the night time, break and enter, or having with such intent, entered in the night time, break a dwelling house, dwelling tent, or any other place used as a dwelling, any person being lawfully therein, and such offender being, at the time of such breaking or entering, armed with a dangerous weapon, or arming himself in such house or tent, or other place used as a dwelling, with a dangerous weapon, or committing actual assault upon any person lawfully being in such house or tent or other place used as a dwelling, any person present, aiding, assisting or consenting in such burglary, or accessory thereto before the fact, by counseling, hiring or procuring such burglary to be committed, on conviction, shall suffer the penalty of death."
On motion of Gendusa, a severance was granted. When the case of Gendusa was tried, Beecham was used by the state as a witness against the defendant. The state demanded a capital verdict and Gendusa was found guilty as charged.
Before trial, Gendusa filed a motion to quash, which was overruled. After the verdict and before sentence, the defendant filed motions for a new trial and in arrest of judgment. Both motions were denied. Counsel for defendant then presented the trial judge four bills of exception. The judge refused to sign one of the bills, assigning as his reason therefor that the exception was not reserved at the trial, the trial judge then in accordance with the verdict of the jury sentenced the defendant *Page 427 to death. From the verdict and sentence defendant now prosecutes this appeal.
The three bills of exception that were reserved and allowed were taken to the overruling of defendant's motions to quash, for a new trial and in arrest. The motions to quash and in arrest contain substantially the same allegations. In both motions the invalidity of the indictment is alleged, on the grounds, first, that it is insufficient in law; second, that it fails to state or set out any offense known to the law; and, third, that it fails to state or set out any offense against section 850 of the Revised Statutes, under which it is sought to charge defendant, and fails to state or set out any averment which would bring the case under said section of the Revised Statutes. The motions to quash and in arrest also allege that the indictment is bad for duplicity, in that it attempts to charge separate and distinct offenses in the same count.
Defendant contends that the indictment in this case does not set forth an offense under Section 850 of the Revised Statutes, because it fails to allege a breaking either before entry orafter entry; and, also, fails to state that the place entered is a dwelling house. Defendant further contends that the indictment is bad for duplicity, in that it charges two separate offenses, namely, the offense of entering in the night time without breaking as denounced in Section 854 of the Revised Statutes, as amended by Act No. 20 of 1926, and the offense of assault as denounced in Section 797 of the Revised Statutes.
We are not impressed with the soundness of defendant's contentions that the indictment *Page 428 is invalid, because it alleges that the place entered was the home instead of the dwelling house of Thomas Dupont and Miss Jennie Dupont and because it charges two separate offenses in the same count. But we are impressed with the soundness of defendant's contention that the indictment does not charge an offense under Section 850 of the Revised Statutes, because it does not charge a breaking by defendant after he entered the dwelling house of the Duponts.
The acts designed to be punished as capital offenses by Section 850 of the Revised Statutes are breaking and entering or entering and then breaking in the night time with intent to commit a crime. The offense of entering in the night time without breaking is a distinct offense, punishable with imprisonment at hard labor, and is denounced by Section 854 of the Revised Statutes.
Burglary in this state is a statutory crime. There are four separate and distinct sections of the Revised Statutes denouncing burglaries. Section 850 makes it a capital crime to break and enter or to enter and then break a dwelling house under certain conditions.
The three other sections of the Revised Statutes denounce crimes of less magnitude. Section 851, as amended by Act No. 71 of 1926, makes it a crime, punishable by imprisonment, to break and enter or to enter and then break a dwelling house under conditions less grave than those set forth in the preceding section. Section 852, as amended by Act No. 72 of 1926, makes it a crime, punishable by imprisonment, to break and *Page 429 enter or after entering to break any building other than a dwelling house with intent to commit a crime. Section 854 makes it a crime to enter without breaking in the night time or to break and enter in the day time any dwelling house, outhouse, ship, store, etc., with intent to commit a crime.
Section 850 of the Revised Statutes, on which this prosecution is founded, does not make it a crime unless the offender breaks to enter the dwelling house, or if he enters the dwelling house through an opening that he breaks after making his entry. The breaking is the essence of the crime denounced by the statute. The crime is not committed until there has been a breaking followed by an entry or an entry followed by a breaking.
Under the indictment in this case, the defendant is charged with entering, but not with breaking after entering. The offense charged is not a capital offense. The verdict of the jury, necessarily carrying with it the penalty of death, is not responsive to the indictment, and is therefore of no effect. Code Crim.Proc. art 405. The verdict being invalid, the sentence imposed thereunder is also invalid. Code Crim.Proc. art. 522.
Our conclusion is that the motion in arrest of judgment is well founded and that it should have been sustained.
The object and effect of a motion in arrest of judgment, when well founded, is to strike down all proceedings previously had in the case. State v. McDonald, 178 La. 612, 152 So. 308. *Page 430
For the reasons assigned, the verdict of the jury is set aside, the sentence of the court is annulled and this case is remanded to the district court for further proceedings consistent with the views herein expressed.
FOURNET, J., dissents, being of the opinion that when the indictment charges the defendant with entering one's dwelling in the night time armed with a dangerous weapon and there actually assaults one therein, the indictment is good under R.S. Sec. 850.
HIGGINS, J., dissents.
O'NIELL, C.J., concurs and hands down a separate opinion.