On error to Bergen Quarter Sessions.
For the plaintiff in error, John E. Selser.
For the state, James A. Breslin, Assistant Prosecutor of the Pleas.
Before Brogan, Chief Justice, and Justices Parker and Porter.
The opinion of the court was delivered by
PARKER, J. The important, and determinative question in this case is whether, on an indictment in two counts, the first for breaking and entering by night with intent to commit grand larceny (R.S. 2:115-1) and the second for grand larceny admittedly committed at the same time as the breaking and entering and in connection therewith, and upon a verdict of guilty on each count, the court could lawfully impose a separate sentence on each count, the two sentences to run consecutively.
The facts are few and not in dispute at this time. On the night of September 6th, 1940, the plaintiff in error, with two others, who were indicted jointly with him and pleaded guilty, broke into a warehouse vault and stole a quantity of metallic mercury valued at many thousand dollars. The plaintiff in
error pleaded not guilty, and, as has been said, was convicted on both counts. The sentence was imprisonment for six to seven years on the first count, and similarly on the second count, the "sentences to run consecutively."
The assignments of error and specifications of causes for reversal are identical. The first point made for reversal is based on Nos. 10, 11 and 12. No. 10 alleges error in instructing the jury that the indictment charged plaintiff in error and his two co-defendants with the commission of two separate distinct offenses as to each of which the jury were required to bring in a verdict. The eleventh alleges error in refusing to arrest judgment on the ground that "defendant had been improperly convicted of two crimes arising out of the same transaction." The twelfth alleges error in sentencing separately on each count, the sentences to run consecutively.
It must be conceded that the cases in the various jurisdictions are not in accord on this point: but we incline to think that the disagreement is due in large measure to the form of the older indictments for burglary. In 1 Hale P.C. 559 the allegation is that defendant broke and entered a mansion house and took and carried away certain goods. This, as the author says, "comprises two offenses, viz., burglary and felony" (larceny was a felony at common law, 4 Blk. 94, 229, et seq.; Gardner v. State, 55 N.J.L. 17). That form of indictment contained no direct allegation of intent to commit larceny, but the intent was inferable from the fact of larceny: and if under such an indictment the proof of stealing failed, there could not be a conviction of burglary. See Chit. Crim. Law 1114. But that rule seems to have been limited to a count for burglary alone, the allegation and proof of larceny being required to show intent to commit a felony, as an essential ingredient of the crime of burglary. But it is clear that burglary is proved on satisfactory evidence (1) of breaking and entering by night and (2) of the concomitant intent to commit felony, whether that intent be carried out or not. If the "felony" be in fact committed, it is a crime in itself, quite separate from the breaking and entering, and indictable as such. Hence the later practice of pleading
burglary in one count, charging only the intent in connection with the breaking and entering, and larceny or other common law felony in a separate count. In such case there may be a conviction on either count or on both, the crimes being legally separate. This distinction is well illustrated by the two Massachusetts cases of Commonwealth v. Hope, 22 Pick. 1, and Josslyn v. Commonwealth, 6 Metcalf 236, in each of which the opinion of the Supreme Court was delivered by Chief Justice Shaw. In the Hope case there were four counts, each a separate indictment based on a separate offense. Each count charged breaking and entering with intent to steal, and stealing certain described property. As the opinion says, page 2, "each therefore contains a substantive charge of housebreaking with a felonious intent, and of actual larceny in a dwelling house, either of which is a distinct offense by the statute." (Italics ours.) It was held that upon a general verdict of guilty, the defendant was to be sentenced as for housebreaking, and was not liable to a distinct sentence for larceny. But in the Josslyn case there were two counts; the first for breaking and entering with intent, and the second for larceny. The Hope case was cited for the plaintiff in error and is discussed in the opinion, which at page 240 reads as follows: "We think the distinction to be this: that where the breaking and entering, and actual stealing are charged in one count, there is but one offense ...