The opinion of the court was delivered by
Robert D. McClanahan, Jr., was charged with three counts of burglary of a motor vehicle, K.S.A. 1991 Supp. 21-3715, and one count of felony theft, K.S.A. 21-3701. Following the preliminary hearing, the district court dismissed two of the three counts of burglary оf a motor vehicle. The State appeals.
During the night of July 23, 1991, McClanahan crawled under a fence at the rear of the United Telephone Company in Gardner where the company’s trucks and vans wеre parked when not in use. McClanahan opened a total of six trucks and took three Makita drill sets, valued at $275 to $300 each. Because the trucks were contained within a fenced area and not visible from the street, it was company policy to leave the trucks unlocked at night. Thus, the entries caused little damage to the trucks.
The State charged McClanahan with three counts of vehicular burglary and one count of felony theft based upon the aggregate value of the items taken. At the preliminary hearing, McClanahan moved the district court to dismiss all but one count of burglary, citing the single larceny doсtrine, also known as the single impulse rule. On August 30, 1991, after taking the motion under advisement, the district court dismissed two counts of burglary and specifically found “vehicular burglaries are subject to the single impulse rule and therefоre, the State may only charge this case as one vehicular burglary.” The district court further found sufficient probable cause to believe McClanahan committed the remaining crimes charged and bound him over for trial. The State then requested the remaining charges be dismissed without prejudice pending the outcome of this appeal.
*535 The sole issue on appeal is whether the single impulse rule apрlies to vehicular burglary.
We first recognized the single larceny doctrine in
State v. Hall,
“ ‘Where several articles are taken from the same owner at or about the same time by the same thief, the better practice, in spite of the fact that there are technically several takings, is to regard the takings as a single offense, аnd to indict and punish but once. This is clearly the case when the goods are taken at the same time by one act of taking. But it is equally true where the goods, although taken at substantially the same time, are taken independently.’ [Citation omitted.]
“ ‘But a series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a generаl fraudulent scheme.’ [Citation omitted.]
“ ‘. . . Each case must be determined upon its own special facts and circumstances. If, as it is said by some of the courts, the different asportations are prompted by оne design, one purpose, one impulse, they are a single act, without regard to time.’ [Citation omitted.]” Ill Kan. at 459.
In
State v. Roberts,
“will support a jury finding of grand larceny from evidence of a series of petty thefts which the jury infers to be part of a single plan, scheme, or single larcenous impulse.
“When property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separаte impulse or intent. However, if it appears that a single incriminating impulse or intent is involved in the successive takings, they constitute a single larceny.”
Most recently,- we addressed the single larceny doctrine in
State v. Fox,
“(1) Separate acts of theft or embezzlement may constitute felony theft if the acts were the result of one larcenous impulse or plan.
*536 “(2) Whether or not the separate acts- were the result of one larcenous impulse or plan is a question of faсt.to be determined by the jury,
“The proper way to charge a defendant under these circumstances is to have an information containing several counts. One count should charge a felony under the singlе lárceny doctrine, and there should be alternative misdemeanor counts for each payment received in the event the jury rejects the single larceny theory.”242 Kan. at 462-65 .
The Court of Appeals in
State v. Waufle,
The State contends the single impulse rulе is not applicable to burglary charges. The State further argues larceny and burglary are separate and distinct offenses and, therefore, it is not incongruous for the State to charge McClanahаn with felony theft based upon the single impulse rule while also charging him with multiple burglary counts. For support the State cites K.S.A. 21-3107(1), which states: “When the same conduct of a defendant may establish the commission of morе than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes.” The State also cites K.S.A. 22-3202(1), which provides a defendant may be charged with two. or more crimеs in the same complaint if the .crimes charged are based upon the same act or transaction or constitute parts of a “common scheme or plan.” . .
The State claims each chаrge of vehicular burglary is based upon specific evidence of entry into three separate and distinct *537 vehicles; thus, the defendant is chargeable with three separate counts of vehicular burglary which are not multiplicitous.
In response, McClanahan argues the State is attempting to use a single wrongful act as the basis for multiple charges and, therefore, the three vehicular burglary charges arе multiplicitous. McClanahan also claims the State is breaking up his intent in order to charge him with vehicular burglary three times while merging his intent in order to charge him with a single count of felony theft. Essentially, McClanahan cоntends the State wants to have it both ways and is applying a double standard.
In
State v. Scott,
Furthermore, the State must prove McClanahan had the “intent to commit a felony or theft” within each vehicle. K.S.A. 1991 Supp. 21-3715 does not require the State prove McClanahan had the intent to commit felony theft within each vehicle. The intent element may be proved with evidence of an intent to commit a misdemeanor theft. At the preliminary hearing Mc-Clanahan did not refute the evidence presented that he had taken a Maldta drill set from each of the vehicles.
As noted earlier, McClanahan contends the State should not be allowed to consolidate his intent to commit a theft in order to charge him with a single count of felony theft and at the same time charge him with three counts of vehicular burglary. We
*538
hаve stated, however, that “larceny and burglary are separate and distinct offenses. There is no compound offense of burglary and larceny.”
State v. Finley,
We hold the single impulse rule does not apply to vehicular burglary where multiple vehicles are burglarized. K.S.A. 1991 Supp. 21-3715 controls and makes each burglary of a vehicle a separate crime. As to the preliminary hearing issue, the State is required to show probable cause that a crime was committed and it is more likely than not that the person charged with the crime actually committed it.
State v. Huff,
McClanahan raises one other issue. He argues the fenced lot in which the United Telephone Company’s vans and trucks Were parked is a “structure” under
State v. Fisher,
The judgment of the trial court is reversed.