11 Mo. App. 79 | Mo. Ct. App. | 1881
delivered the opinion of the court.
The defendant was indicted for burglary and larceny, both offences being charged in one count. Upon trial
Burglary and larceny are two distinct, separate, and independent offences. The statute (Rev. Stats., sect. 1301) permits a prosecution for both in the same count, or in separate counts of the same indictment, but nowhere intimates that the two may be regarded as one offence. On the contrary, provision is made in the same section for a separate assessment of punishment for each of the two crimes. In The State v. Alexander (56 Mo. 131), the defendant was convicted of burglary and larceny in one proceeding. The supreme court affirmed the judgment as to the larceny, and reversed it as to the burglary.
If there had been two indictments, one for each of the crimes charged, and two separate trials, it will hardly be questioned that the granting of a new trial in one case would not reopen a verdict of acquittal in the other. Such an acquittal would be a perpetual bar, under Article II., section 23, of our state constitution : “ Nor shall any person, after being once acquitted by a jury, be again, for the same offence, put in jeopardy of life or liberty.” We are unable to see how the General Assembly can, by a statute regulating criminal procedures, deprive any citizen of a constitutional right. No such effect was intended, and none can follow from a law which simply provides for the trial of two offences charged under one indictment. The prosecution for burglary in this case, was ended forever by the verdict of not guilty.
It is claimed for the State that the familiar constitutional rule has been changed by a provision in the section above