222 So. 2d 692 | Miss. | 1969
ON PETITION FOR WRIT OF .HABEAS CORPUS
Petitioner has filed with this Court a petition for habeas corpus. He alleges that he was tried and convicted in February 1961 by the Circuit Court of George County on one charge of burglary and larceny. He further alleges that on this charge he was sentenced to serve a term of five years in the state penitentiary for burglary and three years for larceny and that these two sentences were to run consecutively. The record substantiates the allegations of the petition.
This sentence is error. See Evans v. State, 204 So.2d 570 (Miss.1967) and Bradshaw v. State, 192 So.2d 387 (Miss.1966), in each of which we held that the larceny charged in the indictment was charged not as a substantive offense, but as demonstrative of burglarious intent, and therefore, the charge of grand larceny was not subject to separate sentence. In each of these cases that part of the sentence related to larceny was deleted as surplusage.
We are of the opinion that the three-year sentence imposed for larceny is surplusage and as such is deleted from the sentence and the petitioner stands convicted of burglary only. The sentence imposed for the crime of burglary is not affected by this decision and is to be considered in conformity with the usual procedure with regard to its termination.
The petition for the writ of habeas corpus is sustained and the three-year sentence erroneously imposed on the charge of larceny is hereby deleted.
