delivered the opinion of the court.

From the above statement it will be seen that Daniel Conner was indicted in the criminal court of St. Louis county. The indictment was returned into court on the 19th of January, 1850, by the grand jury,and is in the following words, (viz:)

St. Louis Criminal Court,

January Term, 1850.

The grand jurors of the State of Missouri, within and for the body of the county of Saint Louis, now here in court duly empannelled., sworn and charged, upon their oath present, that Daniel Connor, otherwise called Daniel Conner, late of Saint Louis, in St. Louis county aforesaid, on the first day of January, in the year of our Lord one *566thousand eight hundred and fifty, at Saint Louis, in Saint Louis county, aforesaid, with force and arms, the dwelling house of Henry Oberhell- . mann, then and there situate, feloniously and burglarily did break into and enter with the intent, the goods, chattels and properly of the said Henry Oberhellmann, in the said dwelling house then and there being, then and feloniously and burglariously, to steal, take and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

On this indictment, the defendant was arrested. He appeared in court, and moved the court to discharge him; because he had not been brought to trial within the two succeeding terms of the court, after indictment found against him, for the offence. This motion wa3 made on the 6th of February, and during the same term of the court in which the indictment was found. From this statement it would seem that there was not the slightest foundation for such a motion. But 1 find from an examination of the record, as well as from the above statement made by the circuit attorney of the facts in this case, that Daniel Connor was indicted at July, 1849, of the Saint Louis criminal court, for feloniously and burglariously breaking into and entering the dwelling house of one Ober Heilman, in Saint Louis county, on the first day of August, 1849, with inient feloniously and burglariously to steal, take and carry away the goods, chattels and property of said Ober Heilman.

It appears from the record, that this cause was continued on the 30th August, being the end of the July term, for “want of time to try the same.” On the 30th of October, the end of the September term of the court, this cause was again continued for “want of time to try the same.” On the 17th of December, during the November term of the said court, the circuit attorney, by leave oí the court, entered a nolle prosequi” on this indictment found at the July term aforesaid. It was upon this state of facts, that the above motion to discharge the defendant was made by his counsel. Take this motion in any point of view, and there is nothing in it worthy the consideration of the court below. The indictment now before us, charges the.prisoner with breaking and entering into the dwelling house of Henry Oberhellman — not the same offence as that charged in the first indictment. The dwelling house in that is charged as belonging to Ober Heilman. In the first indictment, Ober is the Christian name and Heilman the sir-name. In this indictment, Henry is the Christian and Oberhellman the sir-natne. The criminal court acted properly, therefore, in overruling this motion. It could not lawfully have done otherwise.

*567The record of the first indictment, too, shews that the cause was continued at July term and at September term in the year 1849, “for want of time to try it.” This is expressly within the provision of the very section of the statute which directs the discharge of the prisoner, unless tried before the end of the se,cond term which shall be held after indictment found. There is nothing therefore in this point.

I will now take up the main question in this case — the sufficiency of the indictment. This will determine this case before us without noticing the instructions. This indictment is based on our statute, and for the better understanding of which it will be necessary to copy the several sections of our criminal code in regard to the subject of burglary. There is no pretence that this indictment is good at common law. It does not even look to the common law for support. It is upon our statute alone that the State relies to support this indictment. The circuit attorney relies upon the 16th section of the third article of our criminal code.

This is a question of grave import, and it has received mature consideration. The following are the sections of our statute on this subject:

Sec. 13. Article 3rd, crimes and punishments ; digest 1845, page 356. “Every person who shall, be, convicted of breaking into and entering in the night time, the dwelling house of another, in which there shall be at the time some human being, with the intent to commit some felony, or any other larceny therein, either, first, by forcibly bursting or breaking the wall or any outer door, window, or shutter of a window of such a house, or the lock or bolt of such a door, or the fastening of such window or shuttpr; or, second, by breaking in any other, manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates then actually present aiding and assisting; or, third, by unlocking an outer door by means of false keys, or by picking the locks thereof, shall be adjudged guilty of burglary in the first degree.

Sec. 14. “Every person who shall be convicted of breaking into a dwelling house in the day time, under such circumstances as would have constituted the crimes of burglary in the first degree, if admitted in the night time, shall be guilty of burglary in the second degree.

Sec. 15. “ Every person who shall be convicted of breaking into a dwelling house in the night time, with the intent to commit a felony or any larceny, but under such circumstances as shall not constitute the offence of burglary in the first degree, shall be deemed guilty of burglary in the second degree.

*568Sec. 16. “ Every person who shall enter into the dwelling house of another, by day or night in such manner as not to constitute any burglary as herein before specified, with intent to commit a felony or any larceny, or being in the dwelling house of another, shall commit a felony or any larceny, and shall in the night time break any outer door, window, shutter of a window, or any other part of said house to get out of the same shall be adjudged guilty of burglary in the second degree.

Sec. 17. “ Every person who having entered the dwelling house of another in the night time through an open outer door, or window, or other aperture not made by such person, shall break an inner door of the same house with intent to commit any felony or larceny, shall be adjudged guilty of burglary in the second degree.

Sec. 18. “ Every person who being admitted into any dwelling house with the consent of the occupant thereof, or being lawfully in such house, shall in the night time break an inner door with intent to commit a felony or larceny, shall be adjudged guilty of burglary in the second degree.

Sec. 19. “No building shall be deemed a dwelling house, or any part of a dwelling house, within the meaning of the foregoing provisions, unless the same be joined to, immediately connected with, and a part of, a dwelling house.

Sec. 20. “ Every person who shall be convicted of breaking and entering in the night time, first, any building within the curtailage of a dwelling house, but not forming a part thereof: or, second, any shop, Store, booth, tent, warehouse or other building, or any boat or vessel, in which there shall be at the time some human being, or any goods, wares or merchandize or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall on conviction, be adjudged guilty of burglary in the second degree.

Sec. 21. “ Every person who shall be convicted of breaking and entering, in the day time, any dwelling house or other building, or any shop, store, booth, tent, boat or vessel; under such circumstances as would have constituted the offence of burglary in the second degree, if committed in the night time, shall be deemed guilty of burglary in the third degree.

Sec. 22. “ The breaking out of any dwelling house, or the breaking of the inner door thereof, by any person being therein, shall not be deemed such breaking a dwelling house here as to constitute burglary in any case, other than such, as are herein specified particularly.”

These are all the sections of our criminal code, in relation to bur*569glary, and unless the indictment in this case can be supported by one of these sections, it must fall. It is most obvious that the circuit attorney did not intend that the indictment should be considered as framed under the provisions of the 13th section, the first one above quoted. That section alludes to acts done in the night time, breaking and entering into a dwelling house, in the night time; in which dwelling house there shall at the time be some human being.

The indictment in this case is not framed under the provisions of the 14th section. This section requires the circumstances under which the act was committed to be stated, so that the court may see, whether the act which is charged to have been committed in the day time, would under the circumstances constitute the crime of burglary in the first degree, if it had been committed in the night time, instead of the day time.

There is nothing in the 15th section to support this indictment. This section has reference to and embraces breaking into a dwelling house in the night time only.

The 17ih section also embraces acts done in the night time; breaking an inner door, after having entered the house in the night time through an open outer door, window, &c.

The 18th section embraces acts done in the night time, by a person who was admitted into the dwelling house with the consent of the occupant, or by a person being lawfully in the dwelling house.

The 19th section declares what building shall be deemed a dwelling house or part of a dwelling house under the provisions of this act.

The 20th section embraces acts done by a person in the night time, breaking into a building within the curtilage, but not forming a part of a dwelling house, or breaking into a shop, store, &c., boat or vessel in which there shall be at the time some human being, or some goods, &c., with the intent to steal or commit any felony therein, &c.

The 21st section embraces acts done by a person in the day time, by breaking and entering any dwelling house or other building or any shop, boat or vessel, &c., under such circumstances as would have constituted the offence of burglary in the second degree if done in the night time, and declares such to be burglary in the third degree. It is necessary in an indictment under this section to set forth the circumstances particularly, so that the court may see, that such acts under such circumstances if committed in the night time, would constitute the offence of burglary in the second degree.

The 22nd section defines the breaking out of any dwelling house or the breaking the inner door thereof, and limits such acts to the particu-*570]ar offences under the provisions specified in these sections. Now, not one of these various sections here particularly noted, will support the indictment in this case; and if there be no other sections it must fall.

The 16th section alone remains, and upon that, the circuit attorney relies for the maintenance of his indictment in this case.

This 16th section is in substance the same as the act of 12th Aim chap. 7, section 3. Which is as follows: “And whereas, there has been some doubt whether the entering into the mansion house of another, without breaking the same, with intent to commit some felony, and breaking the said house in the night time to get out be burglary, be it declared and enacted that if any person shall enter into the mansion or dwelling house of another by day or night without breaking the same, with intent to commit felony, or being in such house, shall commit any felony and shall in the night time break the said house to get out of the same, such person is and shall be adjudged and taken to be guilty of burglary and shall be ousted of the benefit of his or her clergy in the same manner as if such person had broke and entered the said house in the night time, with intent to commit felony there.”

The 7th and 8th George 4th, section 11th, is as follows: “If any person shall enter the dwelling house of another, with intent to commit felony or being in such dwelling’house shall commit any felony; and shall in either case break out of the said dwelling house in the night time, such person shall be deemed guilty of burglary.

There are two objections to this indictment. Under the 16th section it must, in my opinion, specify the manner in which the entry into the dwelling house was made so that the court might see, that such entry either by day or by night, was made in such manner as not to constitute any burglary herein before specified — that is, as specified in the 13th, 14th, and 15th sections above quoted.

The second objection is the failure to aver that the defendant did break out of the said dwelling house in the night time. I have no doubt, that the last clause of said 16th section, beginning with the words “and shall, in the night time break any outer door, window, &c.,” must be added to the two first clauses of the same section, in order to complete the offence; that is, that the offence consists in the entry of the house either by day or night with the intent to commit a felony or larceny and shall in the night time break any outer door, &c., or being in the house shall commit any felony or larceny and shall in the night time break any outer door, &c. There must be a breaking in the night time to get out of the house to make or constitute burglary under this 16th section.

There is but very little variance between this 16th section in otur *571digest of 1835, and the 16th section in the digest of 1845. The phraseology' of the two is nearly identical, the difference consists in the words with the intent to commit “a crime” instead of “a felony or larceny.” The digest of 1835, that is the criminal code was the work of some of our best and most distinguished lawyers. I have no doubt that the 12th Ann., chap. 7th, section 3rd and the 7th and 8th, Geo. 4, section 11th, above quoted by me, were in the minds of the learned lawyers who principally prepared this code of criminal law in 1835. The difference in the opinion of Lord Bacon and Sir Matthew Hale, which gave rise to the 12th Ann. chap. 7th, section 3rd, was well known to the lawyers who reported our criminal code of 1835; and I consider the construction which I have given to the 16th section of our present act quoted above is the proper and legitimate one. The one designed by the legislature. They never would have made such disparity in the punishment of grand larceny and burglary in the second degree if the merely entering a dwelling house in day time with intent to commit a felony or any larceny, and going out of it again immediately without doing any other act shall be considered burglary in the second, degree. Even the British parliament in the reign of Ann required more than our legislature did, in order to make a person guilty of burglary in the second degree.

The British parliament say that there has been some doubt whether entering into the mansion of another without breaking the same, with intent to commit some felony, and breaking the said house in the night time to get out, be burglary ; therefore, they pass the statute of Ann, declaring it burglary. Our legislature copies this statute, and makes even a part or half of the transaction which the British Parliament said there was a doubt about being burglary; burglary with us in the second degree, if we are to give the interpretation or construction to this 16th section, which is contended for by the State in this case! I cannot agree to any such construction. This question arose before me once while on the circuit bench, it wras then settled agreeable to my opinion here given. I have more thoroughly investigated this subject, and my opinion has been strengthened, and I am happy in having the concurrence of Judge Napton in this construction of our statute.

The defendant was found guilty on-this indictment, he moved for a new trial, also in arrest of judgment, both motions were overruled. The motion in arrest brought the sufficiency of the indictment before the court. This last motion should have been decided otherwise.

This view of the law governing this case, renders it unnecessary for *572this court to notice the evidence or the several objections arising on the instructions given as well as those refused by the court below.

The indictment being substantially defective, being drawn under a wrong construction of the 16th section, of article 3rd, of our criminal code, will not warrant the conviction and punishment of the appellant, Daniel Conner.

The judgment of the criminal court is therefore reversed.