47 Minn. 425 | Minn. | 1891
Defendant was convicted of the crime of grand larceny in the second degree, and appeals from an order refusing a new trial. The essential allegations of the indictment were that in the night time of a specified day, and from and out of the properly described room of one Robinson, defendant wrongfully, unlawfully, and feloniously took, stole, and carried away certain personal property belonging to the last-named person, and of the value of $25. At the proper time defendant entered a plea of autrefois acquit, and, for the purpose of determining the issue presented by a stipulation as to the facts, the state demurred to the plea. From the stipulation it appeared that defendant had been twice indicted by the same grand jury. One of these indictments was that above mentioned, while the other was for the crime of burglary in the first degree. A trial was had upon the indictment last mentioned, resulting in an acquittal, wherein testimony was introduced tending to show that at the same time and place of the alleged burglary, defendant stole the property described in the pending indictment for larceny. It also appeared from the stipulation that the testimony was produced for the purpose of proving an intent to commit, and the commission of, the crime of
Section 393 of the Penal Code would seem to cover this case, were any statutory enactment necessary when the Code was adopted. This section provides that “a person who, having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the burglary, and may be prosecuted for each crime separately.” Although declared by statute, this is no new statement of the law applicable to the case at bar. See 2 Hale, P. C. 245; 1 Bish. Crim. Law, § 1062; State v. Warner, 14 Ind. 572; Wilson v. State, 24 Conn. 57; Bell v. State, 48 Ala. 684; People v. Garnett, 29 Cal. 622. The reason is quite obvious. The commission of the crime of larceny is not necessarily included in that of burglary, and, when tried for the latter offence, the defendant could not have been convicted of the crime of larceny under any of the provisions of Gen. St. 1878, c. 114, § 19, or otherwise, notwithstanding the fact that testimony relative to the commission of that crime — undoubtedly because it was part of the res gestee — had been produced. In 1 Bennett & Heard, Lead. Crim. Cas. ^2d Ed.) 538, the following proposition was laid down after an examination of the authorities, viz.: A former conviction or acquittal of a higher offence is a bar to a prosecution for the same act charged as a less offence, if, on trial of the former, the defendant might have been upon any competent evidence legally convicted of the latter. The converse of this rule, as stated in the same authority, was approved by this court in State v. Wiles, 26 Minn. 381. This defendant was not in jeopardy a second time for the same offence, and the trial court was correct when sustaining a demurrer to the plea.
From the record before us it is not perfectly apparent that the objection now urged that the sufficiency of the indictment, because it failed to allege that the personal property described therein was
Order affirmed.