| Mo. | Oct 15, 1882
The defendant. was indicted at the November term, 1881, in the Jackson county criminal court for burglary and larceny. The indictment contained but one count, which charged the commission of both burglary 'and larceny.
Upon the trial of the cause defendant was convicted of burglary, and his punishment assessed at five years’ imprisonment in the penitentiary, the court having in effect instructed the jury that under the defendant’s plea of autrefois convict they coulci not find defendant guilty of the larceny charged but might find him guilty of the burglary if they believed from the evidence that he committed it. Erom the judgment rendered defendant has prosecuted Ms writ of error, and the sole question presented by the record is whether the conviction of the defendant of petit larceny, as set forth in his special plea, was a bar to a subsequent prosecution for the burglary ?
The solution of this question depends upon the fact as to whether the indictment charges but one or two distinct and separate offenses. If the larceny charged, is law, in so combined with the burglary as to make the charge simply an aggravated burglary, the plea relied upon is an effectual bar to the prosecution. But if the said burglary and larceny are each distinct offenses, the plea, while good as to the larceny, is bad as to the burglary, as the plea of autrefois convict must allege and the proof must show that the offense for which the defendant was convicted is the offense alleged in the indictment. 62 Mo. 692. That the burglary and larceny alleged to have been committed by defendant are separate offenses, has been decided by this court, in the case of State v. Alexander, 56 Mo. 131" court="Mo." date_filed="1874-03-15" href="https://app.midpage.ai/document/state-v-alexander-8004469?utm_source=webapp" opinion_id="8004469">56 Mo. 131, where defendant was in the same count charged with burglary in the first degree and also with larceny. He was convicted of burglary in the second degree and also of larceny. The judgment was affirmed as to larceny but reversed as to the burglary on the sole ground that defendant was convicted of burglary in the second degree,
This conclusion is not, however, left to logical deduction, as in the case of State v. Bruffey, 75 Mo. 389" court="Mo." date_filed="1882-04-15" href="https://app.midpage.ai/document/state-v-bruffey-8007035?utm_source=webapp" opinion_id="8007035">75 Mo. 389, it was expressly held that “ Burglary and larceny are two distinct and independent offenses. The Revised Statutes, section 1301, permits a prosecution for both in the same count, or in separate counts, but nowhere intimates that the two may be regarded as one offense. On the contrary, provision is made in the same section for a separate assessment of punishment for each of the two crimes.” The case last cited and that in 62 Mo. 592" court="Mo." date_filed="1876-05-15" href="https://app.midpage.ai/document/state-v-wister-8005355?utm_source=webapp" opinion_id="8005355">62 Mo. 592, fully sustain the action of the trial court in holding that the plea in bar, while good as to larceny, was bad as to the burglary.
In the case of Wilson v. State, 24 Conn. 57" court="Conn." date_filed="1855-07-15" href="https://app.midpage.ai/document/wilson-v-state-6576865?utm_source=webapp" opinion_id="6576865">24 Conn. 57, after an exhaustive examination of the question, it was held that the conviction of a person for petit larceny committed at the same time a burglary was committed, was not a bar to a subsequent prosecution for the burglary. And in case of Comm. v. Ruby, 12 Pick. 496, it was held that a plea in bar is bad if the offenses charged in the two indictments be perfectly distinct in point of law, however closely they may be connected in point of fact.
This section has no reference to an independent offense which may be disclosed by the evidence relating to the misdemeanor charged, and for which a party is on trial, but has application to that class of offenses, of which there áre different degrees or grades, and of which grades or degrees the misdemeanor charged is one. The present case affords an illustration of its meaning. There are two grades of larceny, one grand and the other petit larceny, one a felony and the other a misdemeanor. Defendant was tried by the justice on a charge of petit larceny, the evidence adduced in support of the charge showed that the larceny being committed at the same time a burglary was committed, was grand larceny, and, therefore, a felony. The justice might, under the statute, have discharged the jury and bound the defendant over to answer an indictment to be preferred for the higher offense. This he did not do, but tried and sentenced him for the misdemeanor, and thereby exempted him from further prosecution for the higher grade of larceny charged by the indictment. Judgment affirmed,