People v. Devlin

COOPER, C.

In this case the defendant was charged with burglary, alleged to have been committed on the seventeenth day of January, 1903, by feloniously entering a building with intent to commit larceny. He was found guilty, and appeals from the judgment and the order denying his motion for a new trial. Defendant pleaded that he had been once in jeopardy for the offense charged in the information. He of

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fered in evidence the judgment-roll in a former conviction of petit larceny for the stealing and carrying away certain personal property on the same occasion, and after he had entered the building described in the information.

The court sustained the objection of the prosecution on the ground that the conviction of petit larceny, committed during the same transaction and immediately after entering the building, is not a bar to a charge of burglary. This presents the sole and only question in the case.

The plea of once in jeopardy, to be good, must be for the offense charged in the information. (Pen. Code, sec. 1017, subd. 4.) Burglary is the entering of a building or structure with intent to commit grand or petit larceny or any felony. (Pen. Code, sec. 459.) Larceny is the felonious stealing or carrying away the personal property of another. (Pen. Cod.e, sec. 484.) It is evident that one can commit burglary by entering a building with intent to commit any felony, such as rape, robbery, arson, or murder. It is also evident that the crime consists of the entry with the intent set forth in the statute. After one has entered a building with intent to commit any other felony than grand or petit larceny, he has committed burglary, but he may then find that it is impossible, for various reasons, to commit the felony which it was his intention to commit when he entered, and conclude to commit larceny by stealing some article of value in the building. He thus, in rapid succession, commits two crimes. Indeed, after he has committed burglary he might under favorable circumstances commit any felony named in the statute. He might commit rape, and in such case he would be guilty of burglary and also of rape. Therefore, we conclude that the evidence did not show, nor tend to show, that defendant had been before in jeopardy for burglary. The legislature no doubt “may pronounce as many combinations of things as it pleases criminal, resulting not infrequently in a plurality of crimes in one transaction or even in one act, for any one of which there may be a conviction without regard to the others.’’ (1 Bishop’s New Criminal Law, sec. 1060, and eases cited.) The same author says (see. 1062): “If in the night a man breaks and enters a dwelling-house to steal therein and steals, he may be punished for two offenses or one at the election of the prosecuting power. . . . Therefore, a jeopardy on an indictment