Roberts v. State, 55 Miss. 421

Roberts v. State

55 Miss. 421 | Miss. | 1877

Chalmers, J.,

delivered the opinion of the court.

The objections to the indictment, based on the failure to follow literally the language of the statute (Code 1871, sec. 2527), are not well taken. The words of the indictment are synonymous with those of the statute, which is sufficient.

Motion in arrest was made after verdict, upon the ground that the offenses o'f burglary and of larceny were both embraced in a single count in the indictment. The general rule is that two crimes cannot be charged in the same count, but to thifi rule there are some exceptions, prominent among which are assault and battery, and burglary and larceny. An assault and battery, it is held, may be joined in a single count, because the lesser offense necessarily merges in the greater, Various reasons have been given for allowing the joinder of burglary and larceny, the most satisfactory of which seems to be that whether the breaking into the house be burglary or not, depends upon the intent; and the act of larceny, after the breaking, is conclusive proof of the intent with which the breaking *424was done. ' The larceny, therefore, is charged, not as a substantive offense, but as demonstrating the burglarious intent. The jury may, indeed, acquit of the burglary and convict of the larceny, but a general verdict of guilty will be regarded, not as a conviction of two offenses, but of the burglary alone; and the larceny charged will be deemed indicative of, and intended to demonstrate, the animo furandi which goes to make up the higher crime. The Commonwealth v. Hope, 22 Pick. 1; The Commonwealth v. Tuck, 20 Pick. 356; Josslyn v. The Commonwealth, 6 Metc. 236.

Whether, if the indictment was bad for duplicity, objection could be made after verdict, is left by the books in much doubt. The authorities, pro and con, are grouped in Bishop’s Criminal Procedure, volume 1, section 197, and note, and the view is expressed by the author that, upon principle, the duplicity ought to be considered as cured by verdict.

Judgment affirmed.