I am unable to concur with a majority of my associates in respect to the point upon which the judgment is reversed.
The Court having charged the jury, they retired, in custody of an officer, to consider the case. After deliberating some three hours without being able to agree upon a verdict, the jury were called into Court by direction of the Judge, and a further charge given, as follows : “ The indictment in this case covers two offenses, burglary and grand larceny. Of the two offenses burglary is the highest, and includes the larceny. You may therefore in this case, if the evidence warrants you -in so doing, find the defendant guilty of burglary; or, if you do not find from the evidence that the defendant was guilty of the crime of burglary, but you do find from the evidence that he was guilty of the crime of grand larceny, you may so return your verdict accordingly.” The defendant objected and excepted: firstly, to the giving of any further charge after the jury had once retired; and secondly, to the charge as erroneous. As to the first objection, section four hundred eight of the Criminal Practice Act provides that, if after the jury have retired for deliberation, “ They desire to be informed on any point of law arising in the case, they must require the officer to conduct them into Court;” and it thereupon makes it the duty of the Court to give the information. Thus the Court is authorized and required, in certain contingencies, to give a further charge. In this case the Court gave further information upon a point of law, and we do not think the authority of the Court was in any respect transcended, even if there was no request on the part of the jury to receive further information.
At common law it was admissible for the Judge to give a further charge after the jury had retired, provided it was given in open Court, and it was often done privately by the Judge. But the latter practice has been very properly condemned. (2 Grah. N. Tri. 356, et seq.; Kirk v. State, 14 O. *630512.) There is nothing in our Criminal Practice Act, expressly or by implication, prohibiting the giving of a further charge in open Court after the cause has been once submitted to the jury. The Act simply gives the jury the right, when further information is desired, to “ require the officer to conduct them into Court ” for the purpose of asking the required information, without limiting the authority of the Judge to direct them to be brought in for the purpose of giving further information on his own motion.
But the Court said : “ The indictment in this case covers two offenses—burglary and grand larceny. Of the two offenses burglary is the highest, and includes the larceny.” And it is insisted that the expression “ burglary is the highest ” is erroneous, for the reason that the degree must be determined by the severity of the punishment, and the imprisonment for larceny may be for a longer period than for burglary. But, however this may be, the particular statement is wholly immaterial and could not have affected the verdict. The important question was whether the indictment in fact embraced the crime of grand larceny; and it is perfectly clear that it did. It charges that the said defendant “ forcibly, feloniously and burglariously did break and enter with intent the goods, chattels, etc., in said house, etc., feloniously, forcibly and burglariously to steal, take and carry away, etc., and then and there forcibly, feloniously and burglariously did steal, take and carry away,” etc. The whole charge included a burglary and larceny—a part, a larceny included within the whole. No question is made as to the propriety of including the two offenses in the same indictment.
As to the proposition that the case was tried upon the theory that the indictment charged a burglary only, I only deem it necessary to say, that the evidence, as well as the indictment, covers both offenses, and that we do not know that the case was tried upon such theory. An ox had been slaughtered in the evening and hung up in an outbuilding, the door of which was closed and locked, and the key deposited in a place accessible to any party knowing where it was. The *631parties who committed the larceny by some means effected an entrance into the building, as the beef could only have been taken out by means of such entrance. If a larceny was committed, there must necessarily have been a burglary also, within the statutory definition of that offense. In view of this state of facts the Court, in all probability, did not deem it necessary to refer to the charge of larceny in the first instructions given, for the reason that, upon the evidence, if the defendant was guilty of any offense at all, he must necessarily have been guilty of burglary, as well as larceny; and the Court regarded the burglary as the higher offense. If the evidence had been, or could in the nature of things have been different with respect to the two offenses charged, there might be some force in the suggestion, if true, that.the defendant was only tried for the burglary. But, in this instance, the evidence proving the burglary necessarily proved a larceny, and the evidence proving the larceny necessarily proved a burglary. The jury had no difficulty in convicting of the larceny, and it is difficult to account for their acquittal of the burglary upon any other theory than that they labored under some misapprehension as to what constitutes burglary. The evidence tended to show that one of the parties knew where the key to the outhouse was kept, and that the key was probably obtained, and after unlocking the door and taking the beef returned to its place. It may be that the jury supposed the entrance to have been made in this mode, and, under a misapprehension of the charge, that, as the entrance was effected without violence, it did not constitute a burglary. But it is useless to speculate upon the matter. The Court correctly stated that the indictment covered both a burglary and a larceny, and the evidence was as clearly applicable to a charge of larceny as burglary, and, I think, proved both offenses. Had the prisoner been tried for a larceny alone, the evidence must necessarily have been the same. The evidence being sufficient, the defendant was properly convicted of grand larceny under the indictment. (People v. Frank, 28 Cal. 507 ; 1 Bishop Crim. Law, Secs. 251, 539, 539 a, 540, 687, 688, and *632cases cited in Notes; 2 Ib. 96.) I think the judgment should be affirmed.