The opinion of the court was delivered by
Williams, Ch. J.The respondent was indicted for burglary, and was convicted on the second count, — which charges him, in *554substance, with breaking and entering a dwelling house in the night time, with intent to commit adultery.
Our statute makes it burglary for any one, in the night time, to break and enter any dwelling house, &c., with intent to commit the crime of “murder, rape, robbery, larceny, or any other felony.” Adultery was not a felony at common law, nor a crime to be punished in the common law courts. Neither does our statute make it felony. Nor does it come within any definition of felony, which can be found. Until the legislature think proper to declare the transaction, of which the respondent was found guilty, an offence, we cannot determine it so to be.
The judgment of the county court is reversed, and judgment arrested.