¶1Indictment for larceny. Plea, former acquittal. Demurrer to the plea overruled. Judgment for the defendant.
¶2The plea set up that the defendant had been indicted for burglary with intent to commit a larceny; had been *573tried and acquitted; and that said indictment was upon the same identical transaction as the pending indictment.
¶3Upon an indictment for burglary with intent to commit a larceny, the defendant could not be convicted of the larceny, if it had been committed, though he were acquitted of the burglary.
¶4Such being the case, it would seem to follow that an acquittal upon an indictment for burglary with intent to commit a larceny, could not embrace an acquittal of the larceny
¶5The judgment is reversed with costs. Cause remanded, &c.
¶6 The true test, to determine whether the plea of autrefois acquit or autrefois convict, is a good bar, is, whether the crimes, as charged in the indictments, are so far distinct that evidence which would sustain the one, would not sustain the other. 1 Archb. Cr. Pr. and PI. 112, n. 2, 6th ed., passim.— 1 Bish. Cr. L., § 680 a.—1 Buss, on Crimes, pp. 829 to 832.