State v. Beckworth , 68 Mo. 82 ( 1878 )

Napton, J.

— This was an indictment against Beck-worth for burglary and larceny. The indictment did not state the value of the goods alleged to have been stolen in the perpetration of the burglary. The jury found the defendant guilty of both burglary and larceuy, and assessed his punishment for the former at three years in the penitentiary, and for the latter two years. The court, however, only sentenced him to three years imprisonment.

When a larceny is committed in the perpetration of a burglary, as is alleged in this indictment, the amount of the property stolen is unimportant, and under our statute, (Wag. Stat., § 19, p. 455,) the punishment may be increased, if the jury convict of both. The jury may find the defendant guilty of burglary and not of larceny; but under such an indictment, could not find him guilty of larceny and not of burglary, for the plain reason that the larceny charged was in the commission of a burglary. That the defendant, under the present indictment, could not be found guilty of larceny and at the same time be acquitted of burglary, could not surely be a matter of complaint with him. In other words, we are unable to see why he should complain for not being indicted for an offense of which he was not guilty. Judgment affirmed.

The other judges concur.

Affirmed.