My opinion is that, if the defendant had stood upon the indictment in this case, the verdict that was rendered against him, finding him "guilty as charged", would be a valid verdict for the crime of burglary defined in Section 854 of the Revised Statutes, as amended, as the entering of a dwelling house or any other house in the nighttime with intent to commit any crime. The penalty for that crime is imprisonment in the penitentiary for a term not exceeding five years, and a fine not exceeding $1,000. The only doubt that I have concerning the validity of the indictment for the crime of burglary defined in Section 854 of the Revised Statutes arises from the fact that the place which is alleged to have been entered by Gendusa is called the "home", instead of the "dwelling *Page 431 house", of Thomas Dupont and Miss Jennie Dupont. I concur, however, in the decree setting aside the verdict, as well as the sentence, in this case, because the case was tried with the understanding on the part of the judge and the jury, and of the State and the defendant, that the prosecution was for the capital crime of burglary, defined in Section 850 of the Revised Statutes, as amended, and because the defendant is not demanding that he should be sentenced for the crime defined in Section 854 of the Revised Statutes, but, on the contrary, is demanding that the verdict, as well as the sentence, should be annulled. I agree, therefore, that the appropriate disposition to be made of this case is to set aside the verdict, as well as the sentence, and to remand the case, so that the district attorney may elect whether to retry the defendant under the present indictment, as for the crime defined in Section 854 of the Revised Statutes, or to enter a nolle prosequi, and let the grand jury determine whether the defendant shall be indicted for the crime defined in Section 850 of the Revised Statutes.