The first count in the indictment charges the defendant with the commission of the crime of burglary, as defined by Section 58 of the Act concerning crimes and punishments, as amended in 1858. The second count charges him with the commission of the crime of breaking and entering a dwelling house, etc., in the day-time, with the intent to steal, as defined in the Act of February 27th, 1864 (Stats. 1868-4, p. 104). Those are, and are intended by the law to be, distinct offenses, and they cannot be made to constitute one and the same offense by means of an averment in the indictment to that effect.
The defendant demurred to the indictment on the- ground that it charges two offenses, and the demurrer was sustained. The defendant is permitted, by Section 289 of the Criminal Practice Act, to demur to the indictment on that ground, and there being two offenses charged, the demurrer was properly sustained.
Judgment affirmed.