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
ON PETITION P©K REHEARING
*242 In Banc
Lee Johnson, Attorney General, and Jacob B. Tanzer, Solicitor General, Salem, for the petition.
No appearance contra.
DENECKE, J.
Plaintiff has filed a petition for rehearing.
Although we remain convinced that our decision was correct, we believe that the opinion needs clarification with respect to the choice open to the trial judge in convicting and sentencing a defendant found guilty of both burglary and larceny or some other crime intended at the time of breaking and entering.
2. The opinion could be interpreted as allowing the trial judge the option of sentencing the defendant either for the crime of burglary or the crime of larceny. We did not intend to so hold. The rationale of the principal opinion is that the breaking and entering essential to the crime of burglary is not to be viewed separate and apart from the ensuing criminal act which the defendant entered to commit. We did not feel that the legislature would have provided a 15-year penalty if burglary had been looked upon simply as a form of criminal trespass to property — and so we reasoned that the heavy penalty for the crime of *243 burglary was intended to embrace also tbe penalty for tbe larceny which might follow. Accepting this assumption of legislative purpose, we do not think that the legislature would have intended to repose in the trial judge the option to sentence for either crime in his uncontrolled discretion. It is more reasonable to assume that if the defendant was found guilty of the crime of burglary, the trial judge would be bound to sentence him for the more serious crime against society. We so interpret the statute.
3. On the other hand, if the defendant broke and entered with the intent to commit a crime carrying a greater maximum sentence than burglary and the defendant did commit such crime, the trial court would be bound to convict and sentence the defendant for the more serious crime.
Howell and Bryson, JJ., dissent for the reasons stated in their dissent in the original opinion.