The relator was tried and convicted generally on an indictment containing two counts: Tbe first, felonious еntry into tbe store building of F. J. Dietrich with intent to steal his goods and chattels; the second, the larceny of cеrtain goods and chattels of the said Dietrich. He was sentenced on the first count to- imprisonment in the Eаstern Penitentiary for a period of not less than four and a half years nor more than nine years; and оn the second count to imprisonment in said penitentiary for a period of not less than one and a half years nor more than three years. He has served over four and a half years and is eligible for parole, if the sentence on the second count was unlawful. His contention is that the offense of larceny, occurring at the same time and place as the offense of felonious entry with intent to stеal, was merged in the greater crime and could not be separately punished.
As the crimes of burglary and felonious entry are committed and completed just as soon as the actor breaks, by night, into the dwеlling house or other building mentioned in the 135th section of the Criminal ' Code (Act of March 31, 1860, P. L. 382, 18 PS sec. 3041)
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or breaks and еnters, in the daytime, etc. any building mentioned in the 136th section of the Code (18 PS sec. 3042)
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, with intent to commit a felony, whether that intent be executed or not, it would seem that the actual commission of a felony, even immediately after such breaking and entry would constitute a separate and distinct crime, for which he could be separately punished.
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But the clemency of the law
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has apparently led our Supreme Court to hold that where a defеndant is indicted in one count for breaking and entering with intent to steal and in a second count for larceny
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if it appear in the record that the felonious breaking and entering and the larceny charged in thе separate counts were done at one and the same time, they cannot be punished as separate offenses:
Com. v. Birdsall,
Notes
Burglary.
Felonious entry.
“If in the night a man breaks and enters a dwеlling-house to steal therein, and steals, he may be punished for two offenses or one, at the eleсtion of the prosecuting power. An allegation simply of breaking, entering, and stealing states the burglary in а form which makes it single, and a conviction therefor will *115 bar an indictment for the larceny or the burglary alone. But equally well a first count may set out a breaking and entering with intent to steal, and a second may allege the larceny as a separate thing, and thereon the defendant may be convicted and sentenced for both. Therefore a jeopardy on an indictment charging the burglary as committed by breаking and entering with intent to steal is no bar to a prosecution for the actual theft. So, almost unanimously, are the authorities; and they do not differ in principle from what we have seen to be the majority doсtrine in some other offences.” Bishop’s Criminal Law, see. 1062, p. 788.
But in
Com. v. Bailey & Ford,
“Still, to make a burglary thus double, and punish it twice, first as burglary and secondly as larceny, hardly accords with the humane policy of our law, and we have cases which refuse this double punishment. They proceed on the highly reasonable ground that ‘where a criminal act has been committed, evеry part of which may be alleged in a single count in an indictment and proved under it, the act cannot bе split into several distinct crimes and a separate indictment sustained upon each. In reason, whеre the law permits a defined combination of things to be punished as one crime, how can a prоsecutor select from this whole a part, and punish it precisely as it would the whole, then take up the rejected part and punish it, and deny that the latter is ‘the same offence’ with the former?” Bishop’s Criminal Law, sec. 1062, p, 788-9.