It is contended that the direction of the Court to the jury was wrong, for several reasons. 1st. It is said that the jury may always find the attempt instead of the act. And this is true if the evidence justifies it. But the evidence here is that the crime of burglary, to-wit, breaking and entering with intent to steal, is complete. At any rate it is not required that one shall steal to make burglary. So that here was no attempt to commit burglary. 2d. It is said the jury might, under the indictment, have found a verdict of guilty of burglary in the day time. The mistake here is, that it is as-*215Burned that burglary in the day time is included in burglary in the night time. It is only where the lesser offense is included in the greater that a verdict can be for the lesser under an indictment for the greater; as assault and battery in murder; assault, in assault and battery, etc. Burglary in the night does not include burglary in the day time. One may be guilty of the latter and not of the former, and of the former and not of the latter.
It is said again that the jury might have found the defendant guilty of larceny from the house. This is very plausible. Larceny from the house may be, in this State, breaking a house with intent to steal, or entering a house with intent to steal, and it is very true that burglary, to-wit, breaking and entering with intent to steal, does, in the very npture of things, include breaking with intent to steal, or entering with intent to steal. But there is an ingredient in larceny from the house that does not exist in burglary. In burglary, if one break and enter with intent to steal, he is guilty of the offense. But he is not guilty of larceny from the house if, after breaking or entering with intent to steal, he, of his own motion, change that intent. To make out the crime of larceny from the house, when there is no theft or taking, there must be a breaking or entering with intent to steal, and the offender must be prevented by detection: Code, section 4347, construed with 4349 and 4350. The crime of actual “larceny from the house” is imputed, because it exists in intent, and only does not exist in fact because of its having been prevented by another. But burglary, to-wit, breaking and entering with intent to steal, is complete as soon as the breaking and entering is complete, with the intent to steal. No amount of after repentance will help it.
If the jury in this case were satisfied that the prisoner broke and entered with intent to steal, he was guilty; and if they thought he had only entered with intent to steal, he was not guilty. It is true, the proof shows that he was detected and prevented, and it may be that this made him, in fact, guilty of larceny from the house, if he did not break in. *216Still, under this indictment, the jury could not find him guilty of larceny from the house, because the indictment does not charge him to have been, detected and prevented. We see, therefore, no reason to find fault with the direction of the Court to the jury.
As to the verdict, there is plenty of evidence to sustain it. The window is proven pretty clearly to have been down. There is, at any rate, sufficient proof of it to save the verdict from being illegal, as contrary to the evidence, and we affirm the judgment. It may be added, also, that the prisoner, even on the hypothesis that if he was not guilty of burglary might have been found guilty of something else, got a better charge than he was entitled to and has no reason to complain, since the Judge told the jury that if he was not guilty of burglary he was to be found not guilty generally.
Judgment affirmed.