Page:North Dakota Reports (vol. 2).pdf/546

 view, People v. Garnett, 29 Cal. 622, cited with approval in People v. De Coursey, 61 Cal. 135, and in State v. Ridley, 48 Iowa 370-378. The dissent in the case in 29 Cal. was not directed against the doctrine in the prevailing opinion, and Judge Sawyer in his dissenting opinion expressly says that two distinct offenses were charged. “The court correctly stated that the indictment covered both a burglary and a larceny.” And again he says: “As tothe proposition that the case was tried upon the theory that the indictment charged a burglary only, I only deem it necessary to say that the evidence as well as the indictment covers both offenses and that we do not know that the case was tried upon such theory.” He in effect agreed with the dictum in the-prevailing opinion by these statements that the indictment covered both offenses, and by his conclusion that it was proper for the jury to convict of grand larceny under the indictment because it charged that crime as well as burglary. He dissented upon a ground which in no manner touched the dictum in the prevailing opinion that the indictment was bad for the reason that it charged two offenses. The point was not properly raised below, and he states in his opinion that “no question is made as to the propriety of including the two offenses in the same indictment.” While the case is not an authority, we regard it as indicating the views of the court on the point, and we are entirely satisfied with the reasoning and conclusion expressed in the prevailing opinion, and in no manner challenged, but, on the contrary, practically assented to in the dissenting opinion. Said the court: “The indictment would have been bad on demurrer had one been interposed, upon the ground that it contains two separate offenses, burglary and grand larceny. At common law there are two kinds of burglary: (1) Complicated and mixed with another felony; and (2) simple burglary, for which different punishments were inflicted. 1 Hale, P. C. 549. Hence at common law an indictment for the first necessarily comprised two offenses — burglary and such other felony as may have been committed in connection therewith; and the defendant could be acquitted of the burglary, if the case was so upon the evidence, and found guilty of the other felony only. Id 559. Our Criminal Code, however, describes