Is a mill-house so certainly a place of business that no description of it, as such, nor any averment that it is such, is required in an indictment for burglary? It is not one of the buildings expressly named in the definition of this offense, in the Code, section 4386. There is no legislative declaration that a mill-house is a place of business, or the subject of burglary. At common law, to break and enter such a building was not burglary; nor is it burglary now by statute, unless the particular building broken and entered be a place of business. Its being a place of business is of the essence of the offense. That is the legal nexus between a mill-house and burglary. Place of business, and not mill-house, is the burglary element; but mill-house is alleged, and place of business is not.
*563The truth is that a mill-house may or may not be a place of business; and consequently, when there is no allegation that the particular house broken and entered was a place of business, the whole indictment may be strictly true, and yet no burglary have been committed. Can it be said, with reasonable certainty, that the grand jury who returned this bill true, had it proved before them, or have found on oath that the house which McElreath broke and entered was a place of business. Might not a witness swear truly to every word in the indictment and be wholly free from perjury, and yet the mill-house described have been one, either never used for business, or long since used, and for many years disused. A mill-house is as correctly described by that name before business is done in it or after it is discontinued, as while it is used for business. As long as it contains a mill, and sometimes much longer, it is called a mill-house, certainly as long as the mill remains. If this indictment even designated the kind of mill, while I think it would still be insufficient, it might possibly be some better than it is. Saw-mill, grist-mill, cotton-mill, sugar-mill, bark-mill, bone-mill, iron-mill, cider-mill, which of these was it, and which of them are we to presume always in use? or are we to suppose that all mills that are in houses are carr.ed on activelyin somesort of milling business? The indictment alleges that the prisoner stole corn from this mill-house; and from that we might conjecture that if business were carried on there at all, it was connected with corn, if it were not that the indictment alleges also, that he stole tobacco and tallow, as well as corn.
An indictment for felony, involving as it does either the loss of life or the loss of liberty, with degradation of character, should charge every material fact with full legal certainty. If not framed in the language of the Code, it should, at least, be in language as clear and explicit. The Code, in defining burglary, uses the words “ place of business.” Provided the substantial meaning of these words be alleged, a considerable deviation from the words themselves would be admissible. For instance, place of occupation, place of pursuit, place of *564employment, house of business, etc., would, doubtless, be deemed sufficient. The business element would thus be brought into the indictment in a way to make the grand jury and the witnesses responsible for it; but mill-house, slaughterhouse, law-office, blacksmith-shop, and such like terms ought not to be accepted as substitutes, in themselves, for the words of the Code, because their application to buildings does not depend on actual business in progress at the time, but very often, on the purpose for which they were constructed, or on that; for which they are designed and ready to be used, or have been used in times past.
The chief justice and myself are of opinion that the judgment should be arrested; and as this will entirely dispose of the present indictment, the motion for new trial has not been, and need not be, considered.
Judgment reversed.
Warner, Chief Justice, concurred, but furnished no written opinion.