¶1I concur for reversal upon the ground that the indictment is demurrable because it states more than one crime. It does not appear that the property which the defendant is charged with stealing was contained in. the car which he is charged with breaking into. Neither does it appear that the articles which he is charged with having stolen are the same as those covered by the charge of criminally receiving stolen property. I do not see how it can be inferred that it was the same property simply because in both cases it was poultry, in the absence of any statement to that effect, in view of the statement in the indictment that the property so criminally received by the defendant was stolen by some person unknown to the grand jury.
¶2As to the other point, it is possible that the words “ third degree ” may be regarded as mere surplusage, but we need not determine that question.
¶3All concurred, except Foote and De Angelis, JJ., who voted for a new trial in an opinion by De Angelis, J.