Subdivision 2 of section 1427 of the Penal Law provides:
“ Any person . . . who:
“ 2. Not being the owner thereof, and without lawful authority, wilfully injures, disfigures, removes or destroys a gravestone, monument, work of art, or useful or ornamental improvement, or any shade tree or ornamental plant, whether situated upon private grounds or upon the street, road or sidewalk, cemetery or public park or place, or removes from any grave in a cemetery any flowers, memorials or other tokens of affection, or other thing connected with them,
“ Is guilty of a misdemeanor.”
The indictment charged, in substance, that said Charles M. Otis, on the 24th day of June, 1909, at the town of Watertown, in the county of Jefferson, within the Brookside Cemetery, did wilfully, wrongfully and maliciously and without lawful authority injure, mutilate, disfigure and deface a certain monument, known, as the “ Otis ” monument, which was upon a certain burial lot in said cemetery, he, said Charles M. Otis, not being the owner thereof.
The chief question presented by this appeal is: Was the defendant, when he committed the acts complained of, the owner of the monument in question, within the meaning of the provisions of the Penal Law above quoted?
It appears that one David D. Otis, for a long, time a resident, of the city of Watertown, died intestate in the year 1881. He *371left him surviving his widow, Sarah A. Otis, and the following children: The defendant, Charles M. Otis, David D. Otis, Jr., Howard FT. Otis, Caroline M. Otis, who afterwards married Joseph S. Greene, and Mary Frances Otis, who subsequently married Oliver B. Cadwell. At the time of his death David D. Otis, S'r., was the owner of a lot in the Brookside Cemetery, a duly incorporated cemetery association, and a deed of said lot had been executed and delivered to him by said association in the year 1864. Such deed was lost and after the death of David D. Otis, Sr., and on August 30, 1883, another deed of the lot was executed and delivered to Sarah A. Otis, his widow, and Josep-h S. Greene, the son-in-law: It was a duplicate of the former deed, except as to the names of the grantees. In the year 1883, but after the execution of said last-mentioned deed, through the negotiations of Howard FI. Otis, who was then manager of his father’s estate-, a monument was caused to be erected upon the lot in question. Such monument was a four-sided granite shaft about twelve feet high. How it was paid for does not appear, except that Joseph S. Greene, who had previously married Caroline M. Otis, paid $200 towards the expense of its erection, and the defendant, Charles M. Otis, contributed $100. Howard FT. Otis and David D. Otis, Jr., also contributed, but the amounts paid by them- do not appear. After the monument was erected the name “ David D. Otis ” was cut on the base on the front side, which is the west side of the monument. On the northerly "side of the monument was placed a letter “ G,” which is for “ Greene,” being the name of one of the married daughters. On the south side of the monument was placed the father’s name, David D. Otis, and the names of his two wives, and the east side of the monument was left vacant. The family of David D. Otis, Jr., is buried at Cape Vincent and he and his family are not interested in this controversy.
*372After the death of the widow, Sarah O. Otis, which occurred in 1903, and after the monument in question had been erected, .and after the death of Howard N. Otis in 1885, who had managed the estate of -his father until his death, there seems to have been no break in the family relations of this family. Upon the death of Howard, the other son, this defendant apparently was charged with the duty of the management of the estate and he continued in such management for a long number of years. He was finally superseded and the son-in-law, Oliver B. Cadwell, was substituted in his place—whether as ■executor, administrator, trustee or otherwise, does not appear. But it does conclusively appear that the management of the estate was taken out of the hands of the defendant and placed in the hands of Mr. Cadwell, his brother-in-law. This resulted in ill-feeling between them and to such an extent that the defendant destroyed the inscription which had been placed upon the east side of the monument marking the resting place of the child of his sister. In other words, the sister had in the year 1893, placed upon that side of the monument at which the child had been buried the names of its father and mother. It appears that the defendant was present at such burial; that he was one ■of the bearers thereat. In other words, he knew that a child -of his sister had been buried opposite the side of the monument which is in question here. He also knew, according to his own testimony, that the inscription upon such side of the monument was there a year previous to the time when his alleged .acts of criminality were committed.
I have gone into the facts so much in detail respecting the rights and ownership of the respective parties in the lot and monument, not so much for the purpose of showing lack of ■equity, proper excuse or justification on the part of the defendant as to show that under the fair construction and.meaning of -the provisions of the Penal Law above quoted the defendant is *373not an owner within the meaning of such act. The language of the section is that a person “ not being the owner thereof/’ etc.. Does it mean that a person having a half interest, a one-fortieth interest—it makes no difference which—may deface and destroy the monument of his cotenant if it consists of a monument in a cemetery organized under our laws? I appreciate that under the law of tenancy in common one tenant is the owner of an undivided interest in all the property; but it is possible that such definition of “ owner ” was intended by the Legislature when apparently it sought to pass an act which would prevent an irresponsible person from defacing a monument, or a side of a monument, which had been sacredly devoted to the memory of the dead of one branch of the original owner’s family ?
I assume to assert that nine-tenths of the burial lots and monuments in the various cemeteries of the State are owned respectively by innumerable persons who may he designated as tenants in common. I think we should not hold that one of such tenants has the right willfully and maliciously to destroy a monument solely upon the ground that he as tenant in common is part owner and, therefore, is entitled to do with his own, so far as the criminal law is concerned, as he pleases.
This is an important question. Innumerable people, through inheritance from their ancestors of a burial lot in a cemetery,, are concerned. A group of relatives, to commemorate the memory of their ancestors, erect and letter a monument agreeable > to all the parties concerned. It is insisted that one of such' group, because a tenant in common of the monument and .the ground upon which it is erected, may deface any side of such monument, or destroy the same, because under the provisions of the Penal Law he, as owner of the same, is not subject to punishment. In other words, that he is a tenant in common with the other owners of the monument and, therefore, may do as. *374■he pleases with his own. I think the learned trial judge was right in holding that within the meaning of the statute the defendant was not an “ owner ” of the monument in question. In other words, that it was not intended by such statute that a part owner, even if he be called tenant in common, should be permitted to desecrate and destroy, willfully, the interests of his cotenants in a monument erected in a cemetery organized under the laws of this State.
Under the evidence there is no question but that the jury was justified in finding that the acts of the defendant were willful and malicious. It being concluded that he was not an “ owner ” within the meaning of the provisions of the Penal Law, to which attention has been called, the jury were justified in finding him guilty as charged in the indictment.
I conclude that, under all the circumstances and within the fair meaning and interpretation of the provisions of the Penal Law' above quoted, the defendant was not the “ owner ” of the knonument and that, therefore, he having been found guilty of malice upon proper evidence, he was properly convicted.
I, therefore, conclude that the judgment and order appealed from should be affirmed.
Spring, J., concurred.
Judgment and order reversed and new trial ordered upon questions of law only.
*375NOTE ON CRIMINAL LIABILITY FOR DEFACEMENT OF CEMETERY PROPERTY.
GENERALLY..
A structure above ground, arranged and intended solely as a place for the permanent interment of the dead, is not a building within the meaning of the provisions of the Penal Code defining burglary in the third degree, and. an indictment for burglary cannot be sustained by proof of the breaking and entering of such an enclosure. People v. Richards, 108 N. Y. 137.
Held, that statute providing a penalty for any person who shall wilfully disfigure or injure any tombstone, monument, fence, tree, or shrubbery around or within any cemetery, applies only to cemeteries dedicated according to statute. Winters v. State, 9 Ind. 172.
See also Lay v. State, 12 Ind. App. 362.
Breaking and entering a tomb inferentially held to be punishable under sections 313 or 647, Penal Code. People v. Richards, 108 N. Y. 137.
No defense to an indictment for wrongfully desecrating and disfiguring a public burying-ground to show that defendant was the owner of the fee of small lots in it under titles derived from various grantees, to whom they had been transferred to be used for a burying ground. Commonwealth v. Wellington, 7 Allen (Mass.) 299.
INDICTMENT.
Cemetery desecrated need not be described by metes and bounds. Commonwealth v. Wellington, 7 Allen (Mass.) 299.
Held sufficient, though not stating that cemetery was either a public or a private one. Lay v. State, 12 Ind. App. 362.
Not necessary to designate in indictment the name of the person whose tomb has been defaced, nor is it necessary to charge in terms that the dead body therein contained was that of a human being. State v. Wilson, 94 North Carolina, 1015.
Indictment for removing and destroying a fence intended for the protection of a graveyard, which describes the place of the offense as a certain graveyard near the town of W., in the county and State mentioned, is held sufficiently definite. Phillips v. State, 29 Tex. 226.