Page:North Dakota Reports (vol. 2).pdf/545

 cannot properly be joined in the same count of an indictment, and that such joinder will be fatal on demurrer or on motion to quash. Whart. Crim. Law 192, and cases cited. But this rule is by no means of universal application, and one of the exceptions as well established as the rule itself is that a burglary and larceny committed at the same time may be united. Id 192, 614. In such cases the burglarious entry with intent to steal, and the consummation of that intent by actual theft, are so connected that the two crimes may be charged in the same count, in order, it is said, to convict of the one on the failure to establish the other. Whart. Crim. Law 614; 1 Hale P. C. 560; Rex. v. Withal, 1 Leach, Club Cas. 88.”

From this opinion it is obvious that the court regarded that two distinct offenses were charged, and that the case would have been within the rule but for the exceptions thereto, which, as the court said, was as well established as the rule itself. In Ben v. State, 22 Ala. 9, the court say: “It is certainly true that an indictment must not be double; that is, the defendant must not be charged with having committed two or more offenses in any one count. For example, it is not permissable to charge the defendant in the same count with having committed murder and robbery. Mr. Archbold says the only exceptions to this rule are to be found in indictments for burglary, in which it is usual to charge the defendant with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended,” etc. Here, this practice is justified, not under the rule, but as an exception to it. Wharton mentions this practice as an exception to the doctrine against duplicity. “Prominent exceptions to the rule before us are to be found in indictments for burglary, in which it is correct to charge the defendant with having broken into the house with intent to commit a felony and also with having committed the felony intended.” Whart. Crim. Pr. & Pl., § 244. See, also, U. S. v. Byrne, 44 Fed. Rep. 188.

The failure of the legislature to perpetuate in express language this exception to the rule, when declaring the rule itself, is conclusive against the continued existence of the exception. The authorities are not in a satisfactory condition. See, as sustaining our