Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
May one who pleads guilty to accusations under two separate waivers of indictment, one charging breaking and entering a dwelling house by daytime with intent to steal (N.J.S. 2 A:94-1, formerly R.S. 2:115-2), and the other larceny of personal property from the owner thereof (N.J.S. 2 A:119-2, formerly R.S. 2:145-2), be sentenced to terms of imprisonment on both, to be served consecutively?
The defendant signed two waivers of indictment requesting trial by the court without a jury, wherein he was charged respectively with willfully and maliciously breaking and entering the dwelling house of one Abraham Frankel with intent feloniously to steal the goods and chattels of Frankel; and the larceny of one Longine watch, one bottle of rum and cash, having a total value of $355, the property of Frankel.
On August 12, 1948, when placed before the bar of the court to plead to the two charges, the defendant entered pleas of guilty to both. Subsequently, the court imposed a sentence of not less than five years nor more than seven years on each charge, to be served consecutively.
The defendant's application to the trial court for a correction of his sentences was, by letter opinion of the Monmouth County Court dated April 9, 1953, denied, from which denial defendant appeals.
The defendant contends that "The two charges were in fact one continuous criminal act, properly belonging as counts in a single indictment"; that the two charges "grow out of the same transaction, yet differ in degree" and, therefore, only one penalty could legally be imposed.
A rule contrary to the defendant's contentions has been firmly established in New Jersey. The identical question was discussed and decided in the case of State v. Byra , 128 N.J.L. 429 (Sup. Ct. 1942); affirmed by the Court of Errors and Appeals on the Supreme Court's opinion and reported in 129 N.J.L. 384 (1943). To indicate the controlling rule enunciated in the Byra case, we quote excerpts from the opinion of Mr. Justice Parker:
"* * * 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 a 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 * * *, [citing the case of Josslyn v. Commonwealth , 6 Metc., Mass. , 236 (1843)].
As noted in 9 C.J. 1058, there is a lack of uniformity in the several states on this point, but we are decidedly of the view that under a count for breaking and entering with intent, the proof of the crime is complete when those two elements are shown, irrespective of whether there was a carrying out of the intent, and sentence may be pronounced accordingly; and that the actual perpetration of the larceny or other crime is no part of the offence
of breaking and entering with intent but is a separate and distinct offence, at common law, and treated in a separate section of our Crimes Act. The former offence is denounced in R.S. 2:115-1, formerly section 131 of the Crimes Act, and the latter in 2:145-2 formerly section 158 of the same act, Comp. Stat. 1787, 1792. We consider the law in this state to be as stated in section 1062 of volume 1, Bishop's New Criminal Law , viz., 'a first count may set out the breaking and entering with intent to ...