¶1The opinion of the court was delivered by
¶2The defendant was charged in the court below with burglary and larceny. He was tried for both offenses, but was found guilty of larceny only. After *109conviction he moved the court to arrest the judgment for the following reasons: First, That the facts stated do not constitute a public offense; s'scoñd, that the verdict of the jury in the ease is an acquittal of the defendants; third, that the verdict does not convict him of any offense described in the information.” The court sustained the motion, discharged the defendant, and. rendered a judgment against the plaintiff for costs; to all of which the county attorney for the State excepted, and now appeals to this court.
¶3. The information consisted of one count only; and the defendant was charged with both offenses in this count. This was proper: (§ 72, Gen. Stat., 331.) The defendant was charged with breaking and entering a dwelling house in the day-time, with the intent to commit the larceny charged in the information, which is burglary in the third degree under the statute: .(§§69, 63, 61, Gen. Stat., pp. 331, 330, 329.) And the defendant was also charged with stealing certain goods of the value of fifty dollars from the said dwelling house, which is grand larceny: (§§ 78, 81, Gen. Stat., 332,333.) Theverdictof the jury wasasfollows: “We the jury sworn and empanneled in this action do upon “ our oaths fk " Charles I). Brandon guilty of grand larceny “ to the amount of fifty dollars.” We have no doubt but that a defendant, charged with both burglary and larceny, may be found guilty of the larceny only: (§ 122, Gen. Stat., 840; 2 Arch. Cr. Pr. & PL, 328, 341; 1 Russell on Cr., 839, 840, 841; 1 Wharton Am. Cr. L. §560, et seq; id., § 617; 2 id., §§ 1615,1616; 3 Chitty Cr. L., 1114,1115; Roscoe Cr. Ev., 367, 368.) And the verdict in this case is undoubtedly sufficient as a verdict for grand larceny. The judgment and order of the court below are reversed? and the cause remanded for further proceedings in accordance with this opinion.