to steal certain goods therein, and for stealing the same therefrom, with two counts in the indictment, the first alleging the property in the goods to be in the railroad company, and the second alleging the property in them to be in the general owner of them, the railroad company being at the time the bailee of them merely, will not be set aside on a motion in arrest of judgment.' In Georgia, where both burglary and larceny from the house are charged in the indictment, a general verdict of guilty convicts the accused of burglary; and whether the larceny be proved or not is immaterial;' and the same is the law in Mississippi.' In Illinois, where an indictment for a single act of burglary contains two counts, which differ only in the allegation of the ownership of the premises broken into, a verdict of guilty as charged in the indictment will warrant a sentence under either count.' In Louisiana, under an indictment in one count charging burglary and larceny, a verdict of "guilty of burglary and larceny amounts to a verdict of "guilty as charged in the indictment," and is good as a verdict of guilty of burglary.' In Missouri, a verdict in a prosecution for burglary and larceny declaring defendants "guilty in manner and form as charged in the indictment," and assessing the punishment, but failing to say of which offense the defendants were found guilty, is nevertheless good; but such a verdict is bad in Texas.'

(c) Conviction on one of several counts or charges.-A verdict finding defendants guilty of burglary on an indictment charging, in separate counts, both burglary and grand larceny, is tantamount to an acquittal of grand larceny, and thereafter expunges that charge from the indictment. The acquittal thus obtained is final, and not impaired by a judgment of the appellate court, reversing the conviction for burglary and

1 State v. Hill, 1 Del. Cr. 421.

2 Yarborough v. State, 86 Ga. 396. Roberts v. State, 55 Miss. 421.

4 Longford v. People, 25 N. E. Rep. 1009. 5 State v. Nichols, 37 La. An. 779.

State v. Butterfield, 75 Mo. 297.

Miller v. State, 16 Tex. App. 417.

remanding the cause for further proceedings. It takes away any legal foundation for a verdict on the second trial, finding the defendants "guilty of grand larceny, as charged in the indictment." Such a verdict is a nullity, and is no legal reason for discharging the jury from their deliberations on the charge of burglary, the only one remaining in the indictment. If the jury are discharged because of the rendition of this void verdict, without the consent of the defendants, the discharge operates an acquittal of the burglary.' Although a count for burglary and one for grand larceny may be joined in the same indictment, and a general verdict thereon is good, still, if the verdict evidently applies to only one of the charges, defendant may require it to be specified.'

2

(d) Conviction of lesser offense.—At a trial for burglary in the first degree, a conviction may be had for burglary in the second degree.❜

(e) Conviction of the larceny.-In Alabama, on an indictment for breaking and entering a dwelling house with intent to steal, the defendant cannot be convicted of larceny. But under an indictment which charges, in a single count, that the defendant, with the intent to steal, broke into and entered a building in which seed cotton was at the time kept for use, sale or deposit, and stole therefrom sixty pounds of seed cotton, of the value of $3, a conviction may be had for petit larceny in stealing the cotton. In Georgia, under an accusation of burglary, one may be convicted of larceny. Where the charge is that after the breaking and entering valuable goods were stolen and carried away, larceny from the house is 1 Bell v. State, 48 Ala. 684.

2 Watkins v. State, 37 Ark. 370.

3 State v. Fleming, 107 N. C. 905. An indictment for burglary contained two counts, one charging a higher, the other a lower grade of the offense. The court instructed the jury to find under one or the other count. The verdict was 66 guilty as charged." The court ordered it recorded, but, after the clerk had partly recorded it, countermanded the order, and sent the jury back. They again came in, and returned a verdict of guilty on the second count. Held, that the irregularity was not such as to vitiate the sentence.-State v. Disch, 34 La. An. 1134.

4 Fisher v. State, 46 Ala. 717.

5 Borum v. State, 66 Ala. 468. Barlow v. State, 77 Ga. 448.

within the charge.' But it is not error to refuse to receive a verdict of "guilty of receiving stolen goods," and to direct the jury that they would have to find a verdict of guilty or not guilty.' In Louisiana, under an indictment for burglary, a verdict convicting the accused of petit larceny is invalid.' In Missouri, under an indictment and facts constituting burglary in the first degree, one may be found guilty of larceny, but not of burglary in the second degree.* Under an indictment charging burglary and larceny of the same goods in one count, under Rev. St. § 1301, and stating the value of the goods stolen, a conviction of larceny may be had, although the evidence fails to sustain the charge of burglary.' In North Carolina, one indicted for burglary with intent to commit murder, cannot, by consenting to a mistrial and pleading guilty of larceny, be adjudged guilty of larceny. In Virginia, under an indictment charging not only a breaking and entering, but the stealing of a trunk and its contents, of a stated value, the defendant, though acquitted of the burglary, may be found guilty of larceny.' In West Virginia, where an indictment intended for "house breaking" was good only as one for petit larceny, but the jury returned a verdict of "guilty as charged in the indictment," and the prisoner moved in arrest of judgment, which the court overruled, and sentenced him to the penitentiary, it was held that judgment for felony could not be rendered on the verdict, and the court should, on the verdict, have rendered a proper judgment for petit larceny."

§ 368. Sentence.-In Alabama, although under Code 1876, § 4450, a sentence, on conviction for burglary, to hard labor for the county for a period exceeding two years, is irregular and would be reversed on appeal or writ of error, it is not void or a nullity, and does not entitle the prisoner to a dis

1 Polite v. State, 78 Ga. 347.

2 Mangum v. State, 13 S. E. Rep. 558.

3 State v. Ford, 30 La. An. Part I. 311.

* State v. Alexander, 56 Mo. 131. Compare State v. Barker, 64 Mo. 282. State v. Davis, 73 Mo. 129.

State v. Queen, 91 N. C. 659.

Clarke v. Commonwealth, 25 Gratt. 908.

State v. Hupp, 31 W. Va 355.

charge on habeas corpus.' In California, a defendant, who was charged with burglary and with a former conviction of grand larceny, both of which charges he denied by his plea, and against whom was rendered a verdict for burglary only, may be sentenced to imprisonment for both offenses, where, on the day of the trial, he withdrew his denial of the conviction of larceny. In Iowa, where one convicted of breaking and entering a store was not an old offender, and the property taken was of small value, a sentence of eight years should be reduced to two years.' In Michigan, defendants pleaded guilty to burglary, and were sentenced each to five years in the State's prison, from and including the day of sentence. Later, on the same day, they attempted to break jail, and the following day they were brought into court, the original sentence set aside, and they were resentenced, one for nine and the other for ten years. It was held that the first sentence went into effect the day it was pronounced, and that the second sentence was a nullity. In New Hampshire, upon an indictment for breaking and entering and stealing, the prisoner, upon conviction, may be sentenced under Gen. Laws, ch. 279, for breaking and entering with intent to commit larceny." In Pennsylvania, where an indictment contained two counts, the first charging the defendant with breaking and entering a storehouse, the second charging him with stealing the goods, and he was found guilty under both counts, and the judge imposed a distinct sentence on each count, this was held correct." In West Virginia, upon a general verdict of guilty on a count charging both burglary and larceny, the sentence should be for burglary, not for both larceny and burglary or for larceny."

§ 369. Punishment.-In Alabama, under the statute (Rev. Code, § 3695), under an indictment charging that the

1 Exp. Simmons, 62 Ala. 416.

2 People v. Johnson, 88 Cal. 171. See also, People v. Neason, 67 Cal. 225; People v. Wheatley, 88 Cal. 114; Ex parte Williams, 26 Pac. Rep. 887. 3 State v. Moody, 50 Iowa 443.

People v. Meservey, 76 Mich, 223.

'State v. Wilson, 59 N. H. 139.

• Com. v. Birdsall, 69 Pa. St. 482; 8 Am. Rep. 283.

State v. McClung, 13 S. E. Rep. 654.

defendant broke and entered a building with intent to steal, and feloniously took and carried away personal property, there may be a conviction of either burglary or larceny, or of both. But in the latter case the defendant can be sentenced to only one punishment.' Under an indictment for burglary, and a verdict of guilty as charged in the indictment, not fixing the punishment (Code §§ 4343, 4450), the court may impose a sentence to confinement in the penitentiary at hard labor for two years. In Illinois, where an indictment in its first count charges defendant with burglary, which is punishable by imprisonment for a period of from one to twenty years, in the discretion of the jury, and in its third count with burglary after a previous conviction for a similar offense, which is punishable by twenty years' imprisonment, an instruction that, if the jury find the defendant guilty of burglary under the first count, they should fix the punishment at imprisonment for twenty years, is reversible error. So is an instruction that if the jury find the defendant guilty as charged in the first count of the indictment, and also find that he had been previously convicted of a similar offense, they should fix the punishment at twenty years' imprisonment. In Louisiana, under a charge of forcibly breaking into a dwelling, armed with a dangerous weapon, with the intent to kill, the accused may be found guilty of having forcibly entered the house in question without being armed with a dangerous weapon, and, instead of suffering death, may be sentenced to imprisonment.* In Maine, the prosecuting attorney may enter a nolle prosequi as to the breaking and entering, and leave the defendant to be punished for the larceny only. In Michigan, burglary is a common law offense, and not a statutory crime; but statutes distinguish between the degrees of punishment for simple and for aggravated burglary, and if all the incidents warranting the severer penalties are not alleged in the information, but the offense is stated as at common law, the smaller pun

'Bell v. State, 48 Ala. 684.

2 Washington v. State, 63 Ala. 189.

5

Watson v. People, 25 N. E. Rep. 567.

4 State v. Morris, 27 La. An. 480.

Anon, 31 Me. 592.

3