Borum v. The State

Borum v. The State. Indictment for Burglary and Larceny. 1. Conviction of less offense Hum charged. — Under an indictment which charges, in a single count, that the defendant, with the intent to steal, broke into and entered a.building in which seed-cotton was at the time kept for use, sale, or deposit, and stole therefrom sixty pounds of seed-cotton, of the value of three dollars, a conviction may be had for petit larceny- in stealing the cotton. Eeom the Circuit Court of- Macon. Tried before the Hon. James E. Cobb. The indictment in this case contained but a single count, which charged that the defendants, Horace Borum and Dave Borum, “with the intent to steal, broke into and entered a house of James Conway, the same being a building in which was kept at the time, for use, sale, or deposit, seed-cotton, the same being a thing of value, and stole therefrom sixty pounds of seed-eotfon, of the value of three dollars, the personal property of James Conway; against the peace,” &c. The defendants pleaded not guilty, and issue was joined on that plea. .“On the trial,” as the bill of exceptions states, “there was some evidence tending to show that the defendants broke and entered the house named in the indictment, and took therefrom sixty or seventy pounds of seed-cotton, worth about three dollars; and the said cotton was proved to be cotton which said James Conway, named in the indictment, produced under a contract with Dr. Wilcoxen; that each was to have one-half when divided, but that said cotton was in the-possession of said Conway at the time the offense was committed. The defendants introduced evidence tending to show that they did. not break and enter said house with intent to steal, as charged in the indictment. The evidence being closed, the'defendants asked the court, in-writing, to charge the jury as follows : ‘Under this indictment, the defendants can only be convicted of burglary, and can not be convicted of petit larceny.’ The court refused this charge, and the defendants each excepted.” The jury returned a verdict of guilty of petit larceny against Dave Borum, and imposed a fine of one cent on him; and he alone brings the case to this court. W. C. Brewer, for the appellant. H. C. Tompkins, Attorney-General, for the State. [MAJORITY — STONE, J.] STONE, J. An indictment charging defendant with burglariously breaking and entering a building in which cotton was kept at the time for use, sale, or deposit, with intent to steal, and with stealing therefrom sixty pounds of seed-cotton of the value of three dollars, will support a conviction for petit larceny in stealing the cotton. Such finding is an acquittal of the burglary, and is good for the minor offense embraced in the charge. — Clark’s Manual, §§ 878-9 ; 2 Bussell on Crimes, Sharswood’s ed., 64 et seq.; 2 Whar. Amer. Crim. Law, §§ 1615-6. The judgment is affirmed.