only one sentence for burglary followed by larceny
How later courts described this case
- only one sentence for burglary followed by larceny
Written by the judges who cited it.
The opinion
O’CONNELL, C. J.,
specially concurring.
I would expand upon the reasoning of the majority opinion to explain more fully the basis upon which a defendant may be convicted where he is *240 prosecuted both for burglary and the crime which was committed after the entry.
Where burglary is defined as a breaking and entering with the intent to commit a theft it seems apparent that the penalty for burglary is intended as an enhanced penalty for theft. If, then, the defendant is sentenced for the burglary, he should not be sentenced for the theft. It would also follow that if the defendant is convicted of the crime of burglary, he should not be convicted of the theft which followed it. Thus the case of Prince v. United States, 352 US 322 , 77 S Ct 403 , 1 L Ed2d 370 (1957), relied upon in the majority opinion, is in accord with this analysis.
Where, however, burglary is defined more broadly, as in Oregon, to include a breaking and entering with the intent to commit any crime, the problem becomes more difficult. If the defendant breaks and enters with the intent to commit murder and he carries out his purpose, it is possible to argue that the trial judge should have the power to enhance the penalty for murder because of the breaking and entering. ①
It appears to me, however, that the penalties provided for the more serious crimes are adequate to provide the basis for sentencing where the crime is aggravated by an unlawful intrusion. In the absence of some indication that the legislature had a contrary objective, I would so construe our statutes. I would hold, therefore, that where the defendant breaks and enters with the intent to commit a specific crime and commits it, the state may prosecute for the two crimes but that the defendant may lie convicted and punished for only one of them.
McAllister, J., joins in this opinion.
The Model Penal Code adopts this reasoning. See Model Penal Code § 221.1(3) (Proposed Official Draft May 4, 1962).