I fully concur in the opinion of my associates that the judgment of the court below, in this case, should be reversed; but I am unable to concede that the information is sufficient to sustain the judgment pronounced against the defendant.
The substance of our statute defining burglary is as follows: “ Every person who shall unlawfully enter in the night time, or shall unlawfully break or enter in the day time, any dwelling house . . . within the bodjr of any county, with intent to commit a misdemeanor or a felony, shall be deemed guilty of burglary.” And it will be observed that the only difference, so far as the interest of the party charged is concerned, between the definition of the crime as above set forth and that at common law, is, that the former makes it burglary to enter or break a house with intent to commit a misdemeanor as well as a felony. Now the word misdemeanor comprehends and includes, in this state, all crimes not punishable by imprisonment in the penitentiary. It specifies no particular crime, but a class of crimes. And to charge one with having intended to commit a misdemeanor is simply to charge him with having intended some one of the many offenses included in the term, without specifying which, and without *340stating any facts from which any particular intent can even be inferred. At common law no indictment for burglary was sufficient which failed to state the facts necessary to show the particular felony intended to be committed, and the same rule should obtain under our statute. The defendant in this case had a right to be informed of the very nature and cause of the accusation against him, and not to be left wholly in the dark as to the particular facts he would be called upon to meet at the trial.
And it seems to me that this information does not state any fact whatever, as to his intent, but only a conclusion of law. Under our statute, which has gone, perhaps, as far as any in eliminating and discarding the useless forms and technicalities found in common law indictments,the indictment or information must still be direct and certain as to the particular facts and circumstances constituting the crime charged; and these facts and circumstances must be clearly and distinctly set forth in ordinary and concise language, so that a person of ordinary understanding may know what is intended. Tested by this rule,this information is radically deficient. Nor am I able to understand how § 828 of the code can, in any way, supply the want of allegations in the information which would otherwise be necessary. It only purports to change or modify the rules of evidence, and not those of pleading. But in that respect it certainty goes to the very verge of legislative power, if not beyond it. It not only overrides the presumption of innocence, which has hitherto been supposed to accompany the defendant through every stage of the trial, but it may also, under certain circumstances, completely nullify that provision of the statute which requires the trial judge to charge the jury not to draw any inference of guilt from the fact that the defendant may have failed or refused to testify in his own behalf. The court below neglected to so charge the jury, and that was one of the grounds on which the judgment was reversed. Of what avail could such a charge *341have been to the defendant, if he was “ deemed ” guilty because be did not testify, or show to the “satisfaction of the jury that he entered the house for a lawful purpose?”