Byrnes was prosecuted in the. Superior Court of Grand Rapids upon an information which charged him with breaking and entering by night the shop and office of one Murphy with intent to steal his goods and chattels, and with stealing goods of the value of nineteen dollars. This information was based on an examination upon a precisely similar charge, before the police 'justice of Grand Rapids. The terms feloniously and burglariously were applied in all these documents. The jury convicted the prisoner, and the court sentenced him for burglary to five years in the State Prison.
After the prosecution had closed their testimony the respondent rested his case without introducing any, and asked the court to direct the jury to acquit him as not charged with any crime known to the laws. The court thereupon, on motion of the prosecution, allowed the information to be amended so as to aver that the office and shop were not adjoining to or occupied with a dwelling house. With this amendment the case was submitted to the jury, who found respondent guilty.
The examination before the magistrate did not show either by the complaint or by the testimony anything about the situation of the building with reference to a dwelling.
It was held in Koster v. People, 8 Mich., 431, that breaking and entering such a building, not described as not adjoining to or occupied with a dwelling was no crime whatever known to our statutes. So much of the charge therefore was nugatory.
*517But the complaint did sliow a specific crime, namely, the stealing of goods of the value of nineteen dollars, which under our statutes is an offense subject to trial before a justice of the peace. Where the complaint shows such an offense a justice has no authority to hold an examination, but must try the case himself. 2 Comp. L., §§ 7844-7860.
An information only lies upon a legal examination and commitment. Comp. L., § 7944.
When the respondent was tried before the Superior Court it was upon a charge of petit larceny for which no information was allowable, and that was the only offense he was called to meet. He had a right to decline introducing evidence and to claim a discharge.
The amendment allowed by the court created a new i'ssue upon an entirely different crime, on which he had never been examined, and to meet which he had never been notified. We have no statute which would legalize any such change of accusation as this after the proofs are in on a trial. It was not the rectification of a formal defect, but a radical change of the information and its legal identity.
The judgment, being rendered on an information which in its only valid shape contained no charge of a State prison offense, nor of any offense whatever within the jurisdiction of the Superior Court, must be regarded as erroneous and invalid.
The defect is fatal to the entire proceedings as there is nothing to try over again, and as the sentence is not merely excessive but illegal.
The judgment must be reversed and the prisoner discharged.
Cooley, O. J., and Graves, J., concurred. Marston, J., did not sit in this case.