The first and second counts in the indictment contain every averment necessary to constitute a good and sufficient indictment for burglary under the statute.' — Code, 1876, § 4343. Nor is it any objection to these counts that they aver the consummation of the larceny in the building alleged to have been burglariously entered. — Snow v. The State, 54 Ala. 138; Wolf v. The State, 49 Ala. 359.
We need not decide in this case the question sought to be raised by the demurrer of the defendant — whether a count for burglary and one for petit larceny can be joined in the same indictment. We pass this inquiry merely with a citation of the authorities, leaving it open for future consideration. — Adams v. The State, 55 Ala. 143; 1 Bish. Cr. Proc. (3d Ed.), §§ 446, et seq.; Whart. Cr. Pl. & Prac. (8th Ed.), § 289; 1 Whart. Cr. L. (8th Ed.), § 819.
9It is an essential element in the crime of burglary, that the breaking and entering should be accompanied with an intent to steal, or to commit some felony ; and this intent must usually be both alleged and proved. The rule seems to be settled by the authorities, however, where there is an averment of a completed larceny, or some felony actually consummated, it is unnecessary to aver the intent to be felonious, the legal presumption being that it is so. The doing of the criminal act, under such circumstances, seems to be regarded as conclusive of the felonious intent. — 1 Whart. Cr. Law (8th Ed.), § 818 ; 2 Arch. Cr. PL, *329 ; Wolfs case, 49 Ala. 359.
.This rule of pleading is important in determining the character of the third count. For, if we regard the averment made in this count — that the defendant “ feloniously took away ” the described personal property — as a sufficient averment of an actual asportation, then the count charges a completed larceny, and the allegation of a felonious or larcenous intent was unnecessary, in order to constitute a good count for burglary. And if the asportation is insufficiently averred, the count is bad as failing to charge larceny, and also for burglary, because there js no averment of the requisite intent. In other words, this *22count would neither charge an actual stealing nor an intent to steal, which would entirely vitiate it.
If we regai-d our first supposition as the correct view, all three of the counts are good for burglary, and there can be no pretense of misjoinder or of duplicity. If the latter view be correct, we then have two counts good as charging burglary, and the other defective for both burglary and larceny, and the conviction would be referred entirely to the good counts. The well established rule is, that a general verdict of guilty, on an indictment containing several counts, will be referred to the counts which will sustain the conviction. And the fact that there is one bad count will not, in such a case, be ground for the arrest of judgment, the verdict being presumed to have been found on the good counts. — Chappell v. The State, 52 Ala. 359 ; Hudson v. The State, 34 Ala. 253; 1 Brick. Dig., p. 501, § 761; Clark’s Man. Cr. Law, § 2525; 1 Arch. Cr. Pr. &. Pl. (Pom. Ed.), 293 (*93), note 1.
The demurrer to the indictment, and the motion made in arrest of judgment, were properly overruled.
Judgment affirmed.