186 A. 810 | Pa. Super. Ct. | 1936
Argued July 9, 1936. The relator was tried and convicted generally on an indictment containing two counts: The first, felonious entry into the store building of F.J. Dietrich with intent to steal his goods and chattels; the second, the larceny of certain goods and chattels of the said Dietrich. He was sentenced on the first count to imprisonment in the Eastern Penitentiary for a period of not less than four and a half years nor more than nine years; and on 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 steal, 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 dwelling 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)1 or breaks and enters, in the daytime, etc. any building mentioned in the 136th section of the Code (18 PS sec. 3042)2, 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.3 But the clemency of the law *115
has apparently led our Supreme Court to hold that where a defendant is indicted in one count for breaking and entering with intent to steal and in a second count for larceny4, if it appear in the record that the felonious breaking and entering and the larceny charged in the separate counts were done at one and the same time, they cannot be punished as separate offenses: Com. v.Birdsall,
198 Fed. 72, 76; Stevens v. McClaughy, 207 Fed. 18, 20; Com. ex rel.Ciampoli v. Heston,