Page:North Dakota Reports (vol. 2).pdf/548

 tent merely, and which may therefore be charged in the indictment.” It is obvious that the decision turned on the peculiar language of the statute,-and that the court considered that the indictment which followed the statute in charging the offense did not charge larceny as a distinct crime, for the court in this case held it error for the trial court to submit the case to the jury on the theory that they might convict of either burglary or larceny. The authorities in Iowa are in an unsatisfactory state. The rule there is to regard the charge of larceny as surplusage. The court treats it as the mere pleading of evidential facts to establish the intent to steal. We cannot agree to this doctrine. It is not customary to set forth evidence in any pleading, civil or criminal, and we do not understand on what principle a separate, specific charge of larceny, embodying all the facts essential to the establishment of such an offense, stated by themselves, independent of the facts constituting the crime of burglary, and set forth with all the particularity requisite to a good information or indictment charging larceny, should be regarded as mere surplusage. The prosecution is under no obligation to plead evidence of the criminal intent with which the breaking and entering were committed. It is always proper, under an information charging burglary, to prove larceny as evidence of the intent with which the accused broke and entered the building, without averring that larceny was in fact committed. If so specific a charge of larceny may be regarded as surplusage, we sce no reason why an information charging a breaking and entering for the purpose of committing murder, and in addition the actual commission of murder, with all the particularity essential to a good indictment for murder, should not be regarded as charging only the crime of burglary, and as setting forth the actual murder merely as an evidence of the intent which prompted and accompanied the breaking and entering. We think the point well taken, and the judgment of the district court is therefore reversed.

All concur.