People ex rel. Latraverse v. Jackson 284 A.D. 822

Appeal from an order of the Clinton County Court, entered in Clinton County on December 15, 1953, which dismissed a writ of habeas corpus. Appellant was convicted of attempted robbery, third degree, and was sentenced as a third offender. The two previous convictions were in Canada. One was in 1942 for the crime of breaking and entering a store and stealing property therein “contrary to the Criminal Code of Canada”. The relevant section of the Criminal Code of Canada seems to be section 461. While the certificate of conviction does not refer to intent, section 461 requires that 'the breaking and entering be accompanied by an “intent to commit any indictable offense therein ”. It must therefore be presumed that the defendant was charged with, and convicted of, breaking and entering with the intent to commit a crime. This would constitute a felony if committed in this State and the requirements of section 1941 of the Penal Law therefore seem to be satisfied with respect to *823this conviction. The other conviction took place in 1947. All that appears in the record is a copy of the information or complaint filed in Canada. It charges that the defendant broke and entered a store known as “ Super Market ” in the nighttime and caused $50 damage therein. This is said in the information to be a violation of section 457 of the Criminal Code of Canada but section 457, as it read at the time of the commission of the offense, referred only to breaking and entering into a dwelling-house. The nature of the crime of which the defendant was convicted is in need of clarification. Order appealed from reversed and proceeding remitted to Clinton County Court for further hearing. Foster, P. J., Bergan, Halpern and Imrie, JJ., concur; Coon, J., not voting. [See post, p. 856.]