State v. Brandon

7 Kan. 106 | Kan. | 1871

The opinion of the court was delivered by

Valentine, J.:

The defendant was charged in the court below with burglary and larceny. He was tried for both offenses, but was found guilty of larceny only. After *109conviction he moved the court to arrest the judgment for the following reasons: First, That the facts stated do not constitute a public offense; s'scoñd, that the verdict of the jury in the ease is an acquittal of the defendants; third, that the verdict does not convict him of any offense described in the information.” The court sustained the motion, discharged the defendant, and. rendered a judgment against the plaintiff for costs; to all of which the county attorney for the State excepted, and now appeals to this court.

. The information consisted of one count only; and the defendant was charged with both offenses in this count. This was proper: (§ 72, Gen. Stat., 331.) The defendant was charged with breaking and entering a dwelling house in the day-time, with the intent to commit the larceny charged in the information, which is burglary in the third degree under the statute: .(§§69, 63, 61, Gen. Stat., pp. 331, 330, 329.) And the defendant was also charged with stealing certain goods of the value of fifty dollars from the said dwelling house, which is grand larceny: (§§ 78, 81, Gen. Stat., 332,333.) Theverdictof the jury wasasfollows: “We the jury sworn and empanneled in this action do upon “ our oaths fk " Charles I). Brandon guilty of grand larceny “ to the amount of fifty dollars.” We have no doubt but that a defendant, charged with both burglary and larceny, may be found guilty of the larceny only: (§ 122, Gen. Stat., 840; 2 Arch. Cr. Pr. & PL, 328, 341; 1 Russell on Cr., 839, 840, 841; 1 Wharton Am. Cr. L. §560, et seq; id., § 617; 2 id., §§ 1615,1616; 3 Chitty Cr. L., 1114,1115; Roscoe Cr. Ev., 367, 368.) And the verdict in this case is undoubtedly sufficient as a verdict for grand larceny. The judgment and order of the court below are reversed? and the cause remanded for further proceedings in accordance with this opinion.

All the Justices concurring.
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