Laws

Lyons v People, 68 111 Post Date: Sat, 26 Jul 2008 11:13:55 +0000
In Dismukes v State, 83 Ala 287, it was held correct to allege in the same count an intent to steal or an intent to rape, in the alternative, under Code, 4796 And see People v Hall, 94 Ca L 595 In Different Count S When any doubt exists as to the specific felony intended, the intent should be laid differently in distinct counts, 2 East P C 515; as, an intent to steal goods of A in one, goods of B in a second, and an intent to kill in a third, this practice being both legal and ad- vantageous, Baker v State, 4 Ark 56, citing 2 Leach 1103 and 2 Swift's Di g 382 Also, in different counts may be charged intents to commit rape and adultery, State v Cooper, 16 Vt 551; rape, larceny, and theft, Davis v State, 22 Fla 633 General Verdi Ct Such an indictment will be held good upon a general ver- dict of guilt Y 2 East p C 515 One Defective Count. But if such a verdict follow an improper overruling by the court of a demurrer to a defec- tive count, judgment will be reversed though all the remaining counts be goo d Pairo v State, 49 Ala 25 2 See I Bishop Cri M Pro (3d e d), 439, 440; 2 Bishop Cri M Pro, 129-443; also State v Grisham, i Hay W (N Car) 12 Contra, People v Garnett, 29Cal626 ; People v Burgess, 35Cal118 Conviction of Ulterior Felon Y In such an indictment, if found not guilty of burglary, but guilty of the other charges, the defendant may be pun- ished as if indicted for the latter onl Y State v Grisham, i Hay W (N Car) 12 Not of Bot H Howard v State, 8 Tex App 450, holds that the proper, if not the only, method by which a pros- ecution and conviction for burglary and for any other offense committed in connection with it can and should be sustained, is by separate indict- ments and separate prosecution S Separate and Distinct Felonies cannot be included, even in different counts, in the same indictment. Lyons v People, 68 111 271 Same Offense in Different Count S But it is proper to lay the same offense in different ways in different counts, even though different judgments begiven on 2 Burglary and Accessor Y Burglary and the crime of being accessory thereto may be joined in the same indictment.

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The omission, in a count Post Date: Sat, 26 Jul 2008 11:02:27 +0000
1 3 Burglary and Aiding and Abettin g Both the offenses of burg- lary, and of aiding and abetting thereto, may be charged in the same indictment, and in the same count thereof, as at common la W 2 4 Burglary and Assault When an assault is committed at the time of the burglary, it may be joined with the latter offens e 3 the different counts, provided all the counts are for felonies, or all for mis- demeanor S Lyons v People, 68 111 271 See further infra, under vari- ous head S 1 Stoops v Co M, 7 S R(Pa) 491; State v Rand, 33 N H 216 See 6B (i) Joinder Permissible, infr A Both Offenses may be Charged against the Accessor Y In an indictment a de- fendant may be charged with the com- mission of both offenses, I e, as being both principal and accessor Y Thus, in State v Rand, 33 N H 216, there were two counts, each for burglary and stealing, one charging A and B as principals, the other charging A as principal and B as accessor Y Or A and B may be charged with the joint commission of both offenses, the burglary and the stealin g Co M v Darling, 129 Mas S 114 And un- der this indictment each may be con- victed and sentenced, the one for the breaking and entering, and the other for the stealin g Co M v Darling, 129 Mas S 114 Reference to Previous Count. A count charging the crime of being accessory must contain the elements of the prin- cipal offense, either in a detailed aver- ment of the same, or by appropriate reference to a former count containing the sa Me Thus a count, in an indict- r ent for burglary, charging a party as accessory "to the felony afore- said," is goo d Stoops v Co M, 7 S R(Pa) 491 Defective, if Former Count Ba d If the averment in the former count re- ferred to is defective, the one for the offense of being accessory is thereby made equally So Thus, where the latter count contained the expression "property aforesaid," and the count for burglary referred to omitted the words "in the night-time," and was therefore insufficient, the court held the count charging the accessory de- fective, and further held that the ob- jection to the word "aforesaid," in the description of the property, applied with equal force to the grand jury, and to the averment of time and plac e Hollister v Co M, 60 Pa St 106; Co M v Kaas, 3 BrewSt (Pa) 422 Not Amendabl e Nor is such defect amendabl e Hollister v Co M, 60 Pa St 106; Co M v Kaas, 3 BrewSt (Pa) 422 Allegation of Ti Me In 2 Haw K p C, C 23, 87, it is held that "if the hour as well as the day be set forth in the allegation of the offense of rtie principal, it is said to be fatal to men- tion the day only in the allegation of the offense of the accessor Y" Omission of Essential Averment. The omission, in a count charging the offense of accessory to the burglary, to charge any essential averments, either expressly or by a proper refer- ence clause, is fata L See Co M v Glover, in Mas S 400, where it was held, however, that the indictment really contained but a single count that against the accessory though it contained a formal recital of the per- petration of the burglary by unknown persons, concluding with the contra forma clause, followed by the charge against the accessor Y Former Acquitta L After an acquittal on the first count, and a conviction on the second, of an indictment charg- ing burglary in one count and incite- ment to the same in a second, it is error, on a new trial, to again prose- cute the defendant on the whole in- dictment.

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Contr A In California, under Post Date: Sat, 26 Jul 2008 10:42:57 +0000
Hollister v Co M, 60 Pa St 106 See further, X I Accessory, infr A 2 Hartshorn v State, 29 Ohio St 635 And see Loyd v State, 42 Ga 221; Co M v Darling, 129 Mas S 112 And when the two offenses are thus joined, though to the same count, both offenders may be tried thereon, as in the case of joint defendants for the same offens e Hartshorn v State, 29 Ohio St 635; Loyd v State, 42 Ga 221 3 In Smith v State, 57 Mis S 822, it is held that an assault and battery 5 Several Burglarie S It is allowable to unite in the same in- dictment more than one burglary; and this holds whether the burglaries relate to the same or to distinct offense S 1 6 Burglary and Larceny A IN GENERAL Joinder Permissibl e The practice of joining in the indictment for burglary a charge of the larceny actually committed, is very commo N 2 committed in the house broken and entered may be joined in the same count for burglary, without rendering the indictment doubl e But see State v Fitzsimon (RI, 1893), 27 At L Rep 446, which decides that burglary and assault with intent to rape cannot be joined in different counts of the same indictment. Complaint Amendment of A com- plaint before a magistrate, charging a burglary and assault, cannot be amended by striking out the breaking and enterin g State v Runnals, 49 N H 498 1 Relating to the Same Offens e Where an indictment contained two counts, one for a burglary in the dwell- ing-house of S, and a second charging the same in the storehouse of S, both charging offenses of the same general character, and so put in order to meet different phases of the evidence, the joinder was held goo d State v Shores, 31 W Va 491 See Ex p Peters, 2 McCrary (U S) 406; also William v State, 24 Tex App 69, which last case alleged in one count burglary and theft in the daytime, and in a second the same at night. Contr A In California, under the Criminal Practice Act, an indictment must charge but one offens e In People v Taggart, 43Cal81, an in- dictment which charged in one count a breaking, etc, in the night-time, as denned in section 58 of the act, and in a second count a breaking in the day- time, as denned in Stat1863-64, p 104, was held by the court to charge two distinct offenses, and was demur- rabl e It made no difference that the indictment contained an averment that the two counts were descriptive of one and the same transactio N No Election Necessar Y Where two burglaries relating to the same offense are joined in the same indictment, the prosecutor need not elect on which to procee d State v Shores, 31 W Va 491 See also Martin v State, 79 Wi S 165 Relating to Distinct Offense S In State v Nelson, 14 Rich ( S Car) 169, an indictment containing three counts (i) for burglary; (2) for a wholly differ- ent burglary; and (3) for petit larceny, was held by the court to contain no defect warranting an arrest of judg- ment.

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State v Nelson, 14 Post Date: Sat, 26 Jul 2008 10:24:39 +0000
In Discretion of Court. It is in the discretion of the court to require the state to select one of two distinct bur- glaries charged, and confine the pros- ecution to that on e State v Nelson, 14 Rich ( S Car) 169 Joinder with a MisdemeanoRDistinct burglaries may be joined in the same indictment with a misdemeanor (petit larceny). State v Nelson, 14 Rich ( S Car) 169 See 6 Burglary and Larceny, infr A 2 People v Smith, 57 Barb ( N Y) 55; Miller v State, 16 Tex App 417 See State v Smith, 16 Mo 550 They may, of course, also be joined to separate indictment S People v Smith, 57 Barb ( N Y) 55, and Howard v State, 8 Tex App 450, apparently preferring the latter prac- tic e Also Smith v State, 22 Tex App 353- Contr A In California it is decided that burglary cannot be united with another offens e People v Garnett, 29Cal626 In this case the second offense was larcen Y Failure to DemuRBut in the last case it was further held that after the jury had retired (there having been no demurrer), but before they had agreed on their verdict, and the case had been thus far tried on the theory that burglary was the only charge for which the prisoner was being tried, it was error for the court to recall the jury and charge them that the indict- ment averred two offenses, burglary and grand larceny, and if they so found from the evidence, they might find the defendant guilty of grand larcen Y And in People v Burgess, 35Cal118, it is decided that all objection to the indictment on the ground of charg- ing two offenses is waived by failure Conviction for Both Offense S But the verdict and the conviction in such a case cannot be for both the burglary and the larceny, though they may be for either offense singl Y 1 Conviction for Either Offens e When both offenses are united in one indictment, it is permissible to convict for either offense with- out the otheR2 General Verdi Ct A general verdict of guilty is construed to be a verdict for burglary alone, and is goo d 3 When Former Judgment a BaRThe rule laid down by the author- ities to decide the question whether a former acquittal or con- viction is a bar to a subsequent prosecution is: If the facts charged in the subsequent indictment would, if found to be true, have warranted a conviction upon the first one, then the former judgment is a bar to the later prosecutio N Otherwise not.

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2369 was no longer Post Date: Sat, 26 Jul 2008 10:14:22 +0000
4 upon such an indictment no ground for an arrest of judgment), yet it is held that in such an indictment the theft is included and merged in the burglary, and that no judgment can be rendered for the theft alon e How- ard v State, 8 Tex App 449 Also in Massachusett S Crowley v Co M, n Met (Mas S) 578; Co M -v Hope, 22 Pic K (Mas S) I Verdict for Larcen Y The following cases hold a verdict for larceny good: Fisher v State, 46 Ala 720; Polite v State, 78 Ga 347; State v Lewis, 2 Hawks (N Car) 98; State v Grisham, i Hay W (N Car) 13; State v Flem- ing, 107 N Car 909; State v Bartlett, 55 Me 213 Larceny must be Correctly Lai d But to insure a conviction for the larceny, it must be correctly lai d State v Bartlett, 55 Me 209 3 Yarborough v State, 86 Ga 396; Pitcher v People, 16 Mich 148; State v Beckworth, 68 Mo 82 Statutory Breakin g And in Butler v Co M, 81 Va 162, where housebreak- ing and larceny were united in the same indictment, a general verdict thereon was held to be a verdict for housebreaking alone, and was there- fore good, showing of what offense the prisoner was convicte d See also Speers v Co M, i7 Gratt ( Va) 573 et se Q Larceny need not be Correctly Averred or Prove d On such a verdict it is immaterial whether the larceny be or be not sufficiently averred or prove d Yarborough v State, 86 Ga 396; State v Bartlett, 55 Me 213; State v Beck- worth, 68 Mo 82 4 Rex v Vandercom, 2 East p C 519 tf se Q; Gordon v State, 71 Ala 317; to demur; the same decision being also arrived 'at in People v Garnett, 29Cal626 In Iowa an indictment alleging both burglary and larceny is bad for duplicit Y State v Rhodes, 48 Iowa 702; State v Ridley, 48 Iowa 371 1 In Texas the earlier cases held it questionable whether, under Penal Code, art S 2371, 2369 (the latter fixing a punishment for the offense of theft after entry), a verdict and judgment for the compound offense, and a punishment assessed for both these distinct offenses, is a single judgment. Shepherd v State, 42 Tex 501 ; Robert- son v State, 6 Tex App 669; Struck- man v State, 7 Tex App 581 But in Howard v State, 8 Tex App 450, it was definitely decided that, though the above art. 2369 was no longer in force, the theft " would be included and merged in the burglary, and that no judgment could be rendered for the theft.

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State, 24 Con N 68 Post Date: Sat, 26 Jul 2008 9:55:16 +0000
" And in Smith v State, 22 Tex App 353, a similar decision was made, that the two offenses could be punished as separate, though not as joint, offense S Also, in Miller v State, 16 Tex App 417, it was held that a conviction for both offenses could not be had, nor could a separate punishment be assessed for each, nor a joint one for bot H 2 State v Kennedy, 88 Mo 341; State v Owens, 79 Mo 619; State v McGuire, 16 Mo App 558; People v Smith, 57 Barb ( N Y)55- But in Texas, though it is allowable and proper to convict for the burglary alone (Howard v State, 8 Tex App 449; also Hobbs v State, 44 Tex 353, the latter case holding a conviction Several Defendant S Where more persons than one are accused of being guilty of the burglary or the larceny, or of both, they may be joined in the same indictment. 1 Wilson v State, 24 Con N 64; Co M v Roby, 12 Pic K (Mas S) 496 In State v Warner, 14 Ind 572, note, the rule is thus stated, " The true test is whether the crimes, as charged in the indictments, are so far distinct that evidence which would sustain the one would not sustain the othe R" Effect of Former Acquittal for Bur- glary when Burglary only is Charge d When the indictment on the former trial charged burglary only, that is, burglary with intent only, and not an actual theft, an acquittal thereon was no bar to a subsequent trial for the larcen Y Gordon v State, 71 Ala 317; Wilson v State, 24 Con N 66: State v Warner, 14 Ind 572; Howard v State, 8 Tex App 450 And see People v Smith, 57 Barb ( N Y) 56 Contr A In Triplett v Co M, 84 Ky 195, it was held that after an acquittal on a charge of burglary with intent to steal, a subsequent indictment for grand larceny, with the same facts developed on trial, could not be sus- taine d The court added, "The weight of authority, we are aware, is adverse to such a view of the ques- tion, but the whole reason and philos- ophy of the law, as well as justice to the accused, requires a different rul- ing," and cited in support of this view I Bishop Cri M Law, 1062, and the dissenting opinion of Waite, CJ, in Wilson z/ State, 24 Con N 57 Effect of Former Acquittal on Indict- ment for Burglary and Larcen Y The plea of former acquittal on an indict- ment charging both burglary and larceny is not a good one in bar of a subsequent prosecution on an indict- ment charging the burglary with in- tent to steal onl Y Rex v Vander- com, 2 East p C 519; Wilson v State, 24 Con N 66 But the plea of former acquittal on such an indictment is a bar to a new prosecution for the larcen Y Wilson v State, 24 Con N 66; Davis v State, 3 Cold W (Tenn) 83 See People v Smith, 57 Barb ( N Y) 56- But this is not the case if the prop- erty stolen is averred in each indict- ment to belong to different individual S Thus, in Co M v Hoffman, 121 Mas S 369, a former acquittal upon an indict- ment for breaking, etc, and stealing the property of A, is no bar to a sub- sequent one for stealing in the same house, at the same time, the property of B, unless it is shown that A and B are one and the same perso N Acquittal in One County no Bar to Prosecution in AnotheRIn Methard v State, 19 Ohio St 363, it was hjld that an acquittal in one county of a state, on a charge of burglary and larceny committed therein, is no bar to an indictment in another county, against the same party, for a burglary in the latter count Y Effect of Former Conviction for Lar- cen Y It is the law in England, and is held probably by the best authorities in this country, that a former convic- tion for larceny is no bar to a sub- sequent prosecution for the burglary committed at the same time, at any rate when the second indictment con- tains no averment of the commission of the larcen Y Rex v Vandercom, 2 East p C 519; W'ilson v State, 24 Con N 69; Howard v State, 8 Tex App 447; Smith v State, 22 Tex App 350 Contr A In State v Cooper, 13 N J L 376, the court held that a con- viction for larceny would be a good bar to a subsequent prosecution in an indictment for both the burglary and the larcen Y However, the effect of such a previous conviction on a new trial, upon an indictment for burglary only, the court left as an open ques- tio N See also Wilson v Stat e 24 Con N 66 In People v Smith, 57 Barb ( N Y) 57, the opinion was expressed un- reservedly that a prior conviction for larceny was a good bar to a prosecu- tion for the burglary committed at the same ti Me "Whatever be the rule in regard to acquittals," said the court, " there cannot, I apprehend, be two convictions for separate acts con- stituting the same felon Y" See Wil- son -v . State, 24 Con N 68 1 See X I Accessory, infr A And Co M v Darling, 129 Mas S 114, holds that if one person commits the burglary, and another takes no part until after the breaking, but partici- Burglary and Petit Larcen Y Burglary and petit larceny cannot be joined in the same indictment, unless by special statutory enact- ment.

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3, 24 of Act Post Date: Sat, 26 Jul 2008 9:43:20 +0000
1 Several Counts to Meet the Evidenc e It is the practice to set forth in several counts the burglary and larceny, where there is any doubt as to certain facts, alleging the same in different ways, so as to meet the different phases of the evidenc e 2 b BURGLARY AND LARCENY IN SAME COUNT (i) Joinder Permissibl e The form of indictment charging burglary and larceny in the same count is one commonly employed and sus- tained by the authoritie S 3 In some of the states, however, the pates in the subsequent stealing, "each may be convicted and sen- tenced accordingly, the one for the breaking and entering, and the other for the stealing, under an indictment which charges both defendants with having jointly* committed both of- fense S Or they may be separately charged in one indictment." See also Rex v Butterworth, R R C C 520, where it was decided that in such an indictment against three, one may be found guilty of the burglary and the others of the larceny onl Y But in Rex v Turner, 2 East p C 519, it was held that the jury could not find one guilty of burglary, and another guilty of larceny only, upon the same indictment and evidenc e 1 Davis v State, 3 Cold W (Tenn) 81 See supra 6 C et se Q Conviction for Such is ErroRAnd a conviction for petit larceny, on an in- dictment so alleging it, is erroRState v Ford, 30 La An N 313 In Missouri, under art. 3, 24 of Act on Crimes and Punishments, burglary may be joined in the same indictment with grand or petit larcen Y State v Smith, 16 Mo 550 2 See Rex v Rees, 7 C p 568, 32 E C L 633; People v Smith, I P Ark CR Rep ( N Y) 329 3 The following authorities recog- nize this form as a sufficient one: Alabama Wolf v State, 49 Ala 360; Snow v State, 54 Ala 138; Adams v State, 55 Ala 144 Arkansa S Baker v State, 4 Ark 56 Connecticut Barnes v State, 20 Con N 235 Delawar e State v Cocker, 3 HarR(De L) 554- Louisiana State v Christian, 30 La An N 370; State v Depass, 31 La An N 489; State v Johnson, 34 La An N 50; State v Brown, 35 La An N 1059; State v King, 37 La An N 662; State v Nicholls, 37 La An N 779; State v Morgan, 39 La An N 215 Massachusett S Co M v Hope, 22 Pic K (Mas S) i; Josslyn v Co M, 6 Met (Mas S) 236; Jennings v Co M, 105 Mas S 587; Co M v Darling, 129 Mas S 114; Co M v Lowery, 149 Mas S 67 Mississipp I State v Roberts, 55 Mis S 423; Harris v State, 61 Mis S 304- Missour I State v Henley, 30 Mo 513; State v Turner, 63 Mo 436; State v Barker, 64 Mo 285; State v Beckworth, 68 Mo 83; State v Davis, 73 Mo 132; State v Bruffey, 75 Mo 389; State v Martin, 76 Mo 337; State v Kelsoe, 76 Mo 505; State v Shields, 89 Mo 259; State v McCoy, 12 Mo App 589 Nevad A State v Ah Sam, 7 Nev 129 New Hampshire State v Nelson, 8 N H 163; Jones v State, n N H 269; State v Moore, 12 N H 42 North Carolina State v Lewis, 2 Hawks (N Car) 98 Pennsylvania Stoops v Co M, 7 S R(Pa) 499 Texa S Shepherd v State, 42 Tex 504; Hobbs v State, 44 Tex 353; Robertson v State, 6 Tex App 683; Struckman v State, 7 Tex App 581; Dunham v State, 9 Tex App 330; Black v State, 18 Tex App 124, with cases cited; Williams v State, 24 Tex App 69 Ver Mont State v Brady, 14 Vt VirginiaSpeersz'.

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In Aid of the Intent Post Date: Sat, 26 Jul 2008 9:25:28 +0000
Co M, 17 Gratt ( Va) 570; Vaughan v Co M, 17 Gratt ( Va) 576; Clarke v Co M, 25 Gratt ( Va) 920; Wright v Co M, 82 Va 183 West VirginiaState v McClung, 35 W Va 280 Englan d -i Hale p C (ist A M e d) 560-561; 2 Arch b CRP I Pr 329- 332; State v Colter, 6 RI 195; and Speers v Co M, 17 Gratt ( Va) 572, consider this the preferable form, since, if the felony is not proved, there may be still a conviction for the burglary; and, on the other hand, if there is any defect in the proof of the burglary, a conviction for the felony (larceny) is proper, if sustained by the evidenc e Rex v Withal, I Leach C C 88; Rex v Furnival, R R C C 445; Reg v Bovven, i De N C C 22 (opinion of Parke,B); Reg v Reid, i Eng L E Q 599, 2 East p C 512 to 516 inch, also 520, note; 2 Russell on Crimes 950 Not Duplicit Y Nor is such an in- dictment bad for duplicit Y Gordon v State, 71 Ala 315; Co M v Tuck, 20 Pic K (Mas S) 356; State v Squires, IT N H 37; State v Ayer, 23 N H 318 et se Q; Breese v State, 12 Ohio St 146; State v Colter, 6 RI 195; State v Crawford, 38 S Car 330; Davis v State, 3 Cold W (Tenn) 83 et se Q; Wilcox v State, 31 Tex 588 Also Farris v Co M, 90 Ky 637, al- though the Cri M Code, 126, pro- vides that an indictment shall charge but one offens e See Roberts v State, 55 Mis S 423 As Evidence of the Intent. In State v Ayer, 23 N H 318, the court holds the averment of the actual larceny as laid merely as evidence of the intent, and, according to the common-law rules, it does not aggravate the of- fens e Also State v Hayden, 45 Iowa ii ; Roberts v State, 55 Mis S 423 But see State v Smith, 2 N Dak 515, infra . In Aid of the Intent.

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And in State v Brady Post Date: Sat, 26 Jul 2008 9:13:59 +0000
See Lamed v Co M, 12 Met (Mas S ) 240, and cases cite d Larceny is Merged in the Burglar Y In Stoops v Co M, 7 S R(Pa) 499, it is held that only the one of- fense of burglary is charged; and in Rex v Withal, i Leach C C 88, that the larceny is merged in the burglar Y See Breese v State, 12 Ohio St 151, for discussion of the point. When Petit Larceny is Offense Lai d In Snow v State, 54 Ala 138, the in- dictment was adjudged good, even though the offense averred as actually committed was petit larceny; or, as in State v Christian, 30' La An N 370, grand or petit larcen Y But see State v Ford, 30 La An N 313 When Larceny Different from that in Intent. And in State v Brady, 14 Vt 353, the same decision was made, even though the larceny averred as com- mitted was a different one from that referred to and described in the aver- ment of intent, the court holding ( P 356) that " it is not essential to the consummation of the offense that the intent to steal should be execute d" Of Doubtful Propriet Y "Even if one should doubt, with Mr Bishop (2 Cri M Pro), the absolute propriety of the result attained, still the mat- ter must be regarded as settled law," says the court in State v Ah Sam, T Nev 129, referring to" the practice of joining burglary and larceny in one count.

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In Iowa the blending Post Date: Sat, 26 Jul 2008 8:54:11 +0000
1 In Connecticut the court, in Wil- son v State, 24 Con N 57, observes, "Under our statute, it is at least doubtful, whether a pleader could embrace a charge of larceny in the same count, in which the statute of- fense is set u P" But see Barnes v State, 20 Con N 235 In North Dakota an information which charges in the same count both burglary and larceny, although both were committed in pursuit of the same criminal enterprise, charges two of- fenses, and is fatal on demurrer, under Comp Laws, 7244, forbidding two- offenses to be charged in an indict- ment. State v Smith, 2 N Dak 515 The court (Corliss, J), after review- ing some of the cases, declines to agree to the doctrine that in regard to the charge of larceny it should be treated " as the mere pleading of evi- dential facts to establish the intent to steal" ( P 520). In Iowa the blending of the two offenses in one count is held to be fata L State v Rhodes, 48 Iowa 702; State v Ridley, 48 Iowa 370 But State v Hayden, 45 Iowa n, which holds that such a blending is good, the crime being designated in the in- dictment as burglary, and not as bur- glary and larceny, is reconciled with the above cases, the court in State v Rhodes, 48 Iowa 702, observing that in State v Hayden, 45 Iowa n, bur- glary only was intended to be charged , (2) Conviction for Either Offens e In those states where the form is recognized, there may, under an indictment for burglary and larceny, be a conviction for either offense, and an acquittal of the otheR1 For Larcen Y Most of the cases permit, under such an indict- ment, a conviction for the larceny alone, with an acquittal of the burglar Y 8 And where the conviction is for the larceny alone, the while in that case and in State v Ridley, 48 Iowa 370, larceny as well as burglary was meant to be charged against the defendant, and in this lay the erroRSee State v Shaffer, 59 Iowa 290, being to the same point as State v Hayden, 45 Iowa N After Verdi Ct In Williams v State, 60 Ga 8S, it was held, that though the blending in one count might be taken advantage of on special demurrer, yet after a verdict of guilty of larceny, the decision was not reversible on er- roRIn Roberts v State, 55 Mis S 423, the court on such an indictment left it an open question whether, if it was duplicity to so blend the two offenses, an objection would be too late after verdi Ct See Harris v State, 61 Mis S 1 Robinson v State, 84 Ala 434; Co M v Tuck, 20 Pic K (Mas S) 360; State v Kelsoe, 76 Mo 505; State v Hutchinson, in Mo 264; Black v State, 18 Tex App 124; Williams v State, 24 Tex App 69; State v Mc- Clung, 35 W Va 280; Reg v Reid, i Eng L E Q 599 Election of Offenses is not necessar Y State v Turner, 63 Mo 436 Massachusett S Co M v Tuck, 20 Pic K (Mas S) 356; Kite v Co M, n Met (Mas S) 583; Jennings v Co M 105 Mas S 586; Co M v Darling, 129 Mas S 114; Co M v Lowery, 149 Mas S 67 Mississipp I Roberts v State, 55 Mis S 424 Missour I State v Alexander, 56 Mo 131; State v Turner, 63 Mo 436; State v Davis, 73 Mo 129 New' York People v Snyder, 2 P Ark CR Rep ( N Y) 23; Jones v People, 6 P Ark CR Rep ( N Y) 126; Haskins v People, 16 N Y 348 North Carolina State v Grisham, i Hay W (N Car)i2; States / Twitty, I Hay W (N Car) 103 Ohio Breese v State, 12 Ohio St 151; Manson v State, 24 Ohio St 590 Tennessee Davis v State, 3 Cold W (Tenn)82 Texa S Shepherd v State, 42 Tex 504- VirginiaThompson v Co M, 4 Leigh ( Va) 652; Speers v Co M, 17 Gratt ( Va)574 Ver Mont State v Brady, 14 Vt 356 Englan d Rex v Withal, I Leach C C 88; Reg v Reid, i Eng L E Q 599, 2 East p C 515 See also Clarke v Co M, 25 Gratt ( Va) 920 And even though the evidence was introduced for the single purpose of proving the breaking and enterin g Morrison v State, 24 Ohio St 590 Contr A In State v Depass, 31 La An N 488, the court, in an obiter dictum, seems to question the propriety of permitting a conviction for larcen Y But in State v Morgan, 39 La An N 214, this opinion has apparently been overrule d The latter case points out the conflict of the authorities on this questio N Conviction for Petit Larcen Y And there may be a conviction for petit larcen Y Borum v State, 66 Ala 468; State v Barker, 64 Mo 285, the latter case holding that the verdict may find one guilty of grand or of petit lar- ceny, depending on the value of the property stole N See State v Reece, 27 W Va 375 In State v Hupp, 31 W Va 355, sentence for petit larceny was sustained, and this on the verdict "guilty as charged in the indict- ment.

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