8 A.2d 549 | Pa. Super. Ct. | 1939
The relator was tried and convicted in the Court of Oyer and Terminer of Crawford County on two indictments, to wit, 19 February Sessions 1938, charging him with robbery, and 19a February Sessions, 1938, charging him with burglary. He was sentenced on the charge of robbery to undergo imprisonment in the Western Penitentiary at separate and solitary confinement at labor for a minimum term of not less than two and a half years and a maximum term of five years, to be computed from December 7, 1937; and on the charge of burglary, to undergo a like imprisonment in said penitentiary for a minimum term of four years and a maximum term of ten years, to be computed from the expiration of the sentence for robbery, at No. 19. He was accordingly committed.
Citing the decision of this court in Com. ex rel. Wendell v.Smith,
We pointed out in the Wendell case, supra, that the *221
crime of burglary is committed and completed just as soon as the actor breaks by night into the dwelling house mentioned in the indictment, with intent to commit a felony, whether that intent be executed or not; and that the commission of a felony immediately after such breaking and entering would seem to constitute a separate and distinct crime, for which he could be separately punished. But we further pointed out that in Com. v.Birdsall,
However, in Com. ex rel. H. Franell v. Ashe,
The present case is governed by the decision in the Franell case rather than the Wendell case.
The rule is discharged and the petition is refused.