State v. Carroll

33 P. 688, 13 Mont. 246, 1893 Mont. LEXIS 27

• Court: Montana Supreme Court
• Decided: July 31, 1893
• Status: Published

Opinion

De Witt, J.

The counsel for the state filed an elaborate brief, supported by authorities, to the effect that in proving the burglary it is not necessary to prove the actual commission of the offense, such as larceny or robbery, etc., which the defendant intended to commit, when he made the entering or breaking of the building, but that it is only necessary to prove the defendant’s intent to commit one of the crimes named in the statute when he made the entry.

But that is not the point in this case. To constitute burglary there must be the entry with the intent to commit grand or petit larceny, or any felony. (Criminal Practice Act, § 73.) The entering, and such intent, are two elements going to constitute the offense of burglary. (Territory v. Duncan, 5 Mont. 478; Territory v. Willard, 8 Mont. 328.)

This case is determinable by observing what intent was ■charged in the information. It is found that the intent there charged was to commit the petit larceny of a certain overcoat. No other intent is charged. The information does not allege the intent to commit the larceny of any other goods whatever than this particular overcoat, nor does it clparge the intent to commit any felony. If the intent to steal the overcoat were absent, then no intent to commit grand or petit larceny, or any felony, is charged by the indictment./' The court was, therefore, wholly correct in charging tl , under this indictment, alleging, as it did, no intent whatever, except to commit the larceny of the overcoat, that such particular intent must be proved in order to convict the defendants. The judgment is therefore affirmed.

Affirmed

Pemberton, C. J., and Harwood, J., concur.