State v. Smith

• Decision Date: 19 May 1892
• Citation: 2 N.D. 515,52 N.W. 320
• Parties: State v. Smith.
• Court: North Dakota Supreme Court

2 N.D. 515

52 N.W. 320

State

v.Smith.

Supreme Court of North Dakota.

May 19, 1892.

Syllabus by the Court.

An information charging both burglary and grand larceny at the same time, in the pursuit of a single criminal enterprise, charges two offenses, and it therefore cannot be sustained when attacked by demurrer, for the reason that section 7244, Comp. Laws, declares that only one offense must be charged in an indictment.

Error to district court, Cass county; William B. McConnell, Judge.

Prosecution against James Smith for an alleged burglary and grand larceny. Defendant was convicted, and he brings error. Reversed.M. A. Hildreth and J. A. McEldowney, for plaintiff in error.

L. A. Rose, State's Atty., and C. A. M. Spencer, Atty. Gen., for the State, in support of the indictment cited Breese v. State, 12 Ohio St. 146; State v. Brandon, 7 Kan. 106; State v. Colter, 6 R. I. 195; State v. Shaffer, 59 Iowa, 290, 13 N. W. Rep. 306;People v. Nelson, 58 Cal. 104;Speers v. Com., 17 Grat. 570;Com. v. Tuck, 20 Pick. 356;Lyons v. People, 68 Ill. 271;State v. Barker, 64 Mo. 282; Rex v. Withal, 1 Leach, Club. Cas. 102; Com. v. Shedd, 140 Mass. 451, 5 N. E. Rep. 254.

Corliss, C. J.

The plaintiff in error demurred to the information on the ground that it charged two distinct offenses. The demurrer was overruled, and the accused convicted By this appeal the plaintiff in error challenges the legality of the information. No other point is made. That the information does charge two offenses cannot admit of doubt. It sets forth specifically and in detail all the facts necessary to establish the offenses of burglary and of grand larceny. These are two distinct offenses, although they both happen to be committed in pursuit of the same criminal enterprise. Breaking and entering with intent to steal must by some appreciable time precede the actual theft. The crime of burglary is complete the moment the breaking and entering with the criminal intent are consummated. The subsequent stealing adds nothing to the offense, nor will the failure of the accused to accomplish his ultimate purpose of theft take from the already completed offense any of its essential elements. In the pursuit of a single criminal enterprise, two offenses have been committed, each independent of the other,-one, the ulterior purpose, the theft; and the other, the means adopted from necessity to effect it, the breaking and entering the building, the criminal intent all the time accompanying the act. Authorities are cited by the learned state's attorney to sustain the form of the information he has employed, but this case stands upon a statute, and not upon adjudications. Formerly distinct offenses might be set up in the same indictment in different counts. This rule, however, would not avail the state's attorney, although there had been no statutory change in this respect, as these two offenses in this case are charged in the same count. This, as a general rule, could not be done. But there were exceptions to such a rule. Without stating other exceptions, it is sufficient, for the purposes of this case, to say that one of these exceptions would justify the course adopted by the state's attorney in this case. It was proper to charge burglary and grand larceny in the same count, when both offenses were committed in the pursuit of the same criminal enterprise. It is urged that our statute merely declares the common-law rule. This is a mistake, and the fallacy of the reasoning which leads to this conclusion lies in the assumption that it was a part of the common-law doctrine against duplicity that burglary and larceny might, under such circumstances, be charged in the same indictment. It was not a part of that doctrine, but an exception to the rule. Our statute declares the rule in the most comprehensive manner, without the qualification of any exception. “The indictment must charge but one offense.” Section 7244, Comp. Laws. We have no right to ingraft an exception upon the statute. We must infer that it was for the purpose of abrogating the exception that the rule was declared by the legislature without such exception. That the right to charge burglary and larceny in the same count was an exception to the rule against duplicity, and not a part of it, cannot well be questioned in view of the explicit language of the authorities. In Breese v. State, 12 Ohio St. 146, the court say: “The general rule undoubtedly is that two distinct crimes or offenses cannot properly be joined in the same count of an indictment, and that such joinder will be fatal on demurrer or on motion to quash. Whart. Crim. Law, 192, and cases cited. But this rule is by no means of universal application, and one of the exceptions as well established as the rule itself is that a burglary and larceny committed at the same time may be united. Id. 192, 614. In such cases the burglarious entry with intent to steal, and the consummation of that intent by actual theft, are so connected that the two crimes may be charged in the same count, in order, it is said, to convict of the one on the failure to establish the other. Whart. Crim. Law, 614; 1 Hale, P. C. 560; Rex v. Withal, 1 Leach, Club. Cas. 88.”

From this opinion it is obvious that the court regarded that two distinct offenses were charged, and that the case would have been within the rule but for the exception thereto, which, as the court said, was as well established as the rule itself. In Ben v. State, 22 Ala. 9, the court say: “It is certainly true that an indictment must not be double; that is, the defendant must not be charged with having committed two or more offenses in any one count. For example, it is not permissible to charge the defendant in the same count with having committed murder and robbery. Mr. Archbold says the only exceptions to this rule are to be found in indictments for burglary, in which it is usual to charge the defendant with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended,” etc. Here this practice is justified, not under the rule, but as an exception to it. Wharton mentions this practice as an exception to the doctrine against duplicity. “Prominent exceptions to the rule before us are to be found in indictments for burglary, in which it is correct to charge the defendant with having broken into the house with intent to commit a felony, and also with having committed the felony intended.” Whart. Crim. Pr. & Pl. § 244. See, also, U. S. v. Bryne, 44 Fed. Rep. 188.

The failure of the legislature to perpetuate in express language this exception to the rule, when declaring the rule itself is conclusive against the continued existence of the exception. The authorities are not in a satisfactory condition. See, as sustaining our view, People v. Garnett, 29 Cal. 622, cited with...