Page:North Dakota Reports (vol. 2).pdf/543

 State of North Dakota, Defendant in Error, v. Frank Smith, Plaintiff in Error.

Indictment—Several Offenses—Burglary and Larceny.

An information charging both burglary and grand larceny at the same time, in the pursuit of a single criminal enterprise, charges two offenses, and it therefore cannot be sustained when attacked by demurrer, for the reason that § 7244, Comp. Laws, declares that only one offense must be charged in an indictment.

(Opinion filed May 19, 1892.)

ERROR to district court, Cass county; Hon. William B. McConnell, Judge.

M. A. Hildreth and J. A. McEldowney, for plaintiff in error. L. A. Rose, State’s Atty., and C. A. M. Spencer, Atty. Gen., for the State.

Prosecution against James Smith for an alleged burglary and grand larceny. Defendant was convicted, and he brings error. Reversed.

The opinion of the court was delivered by

Corliss, C. J. The plaintiff in error demurred to the information on the ground that it charged two distinct offenses. The demurrer was overruled, and the accused convicted. By this appeal the plaintiff in error challenges the legality of the information. No other point is made. That the information does charge two offenses cannot admit of doubt. It sets forth specifically and in detail all the facts necessary to establish the offense both of burglary and of grand larceny. These are two distinct offenses, although they both happen to be committed in pursuit of the same criminal enterprise. Breaking and entering with intent to steal must by some appreciable time precede the actual theft. The crime of burglary is complete the moment the breaking and entering with the criminal intent are consummated. The subsequent stealing adds nothing to the offense, nor will the failure of the accused to accomplish his ultimate purpose of theft take from the