This is an appeal by the Territory from a ruling of the District Court in sustaining the plea of autrefois convict upon an indictment for burglary. From undisputed facts it appears that the accused burglarized a saloon in the city of Butte on the 2d of July last, and stole therefrom a lot of cigars and wines. Two indictments were found against them; one for larceny and the other for burglary. They were first tried and convicted of larceny, and upon being arraigned for trial on the burglary charge they pleaded the former conviction in bar. On the trial of the plea it was admitted by the prosecuting attorney that the defendants were the same; that the saloon from which the goods described in the larceny indictment were taken was the same set forth in the burglary indictment; and that the goods described in the larceny indictment were the identical goods which in the burglary indictment it was charged the defendants intended to steal.
Burglary is defined by the statute to be the entering of any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, steamboat, or rail car, with intent to commit grand or petit larceny, or any felony. The commission of the crime in the night-time constitutes burglary in the first degree; to perpetrate the offense in the day-time is burglary in the second degree. (See Crim. Laws Mont. div. 4, §§ 73, 74.) Larceny is the felonious taking of the goods or property of another with intent to deprive the owner thereof, and to convert the same to the taker’s use.
It is plain from the definitions that they are two distinct crimes; and the larceny is not necessarily included in the burglary. In order to sustain the indictment for burglary it would only be essential to prove the felonious entry with the intent, while to convict on the charge of larceny it becomes necessary to show the taking, for the entry may have been without any felonious intent. Burglary, on the other hand, may, as it frequently does, exist without actual theft; and larceny may be committed without burglary. Therefore, in making out the case of larceny the prosecution need not show any burglarious intent or entering — it is only necessary to prove the usual elements of theft; that is, the venue, the identity of the accused, the felonious taking, the intent to convert to the *332taker’s use the property stolen, its value, the ownership, and that the offense occurred within the time limited for such prosecutions. The burglary need not have been offered to make out the case of larceny, and if it was so offered, it was entirely unnecessary. Nor could the two offenses have been included in the same indictment without violating the statute (Grim. Laws Mont. div. 3, § 188), which declares in unmistakable language that an indictment shall charge but one offense. The case of the Territory v. Fox, 3 Mont. 440, affirms this view of the law, and virtually disposes of the case under consideration.
The defendants were never on trial for burglary, nor while being tried for larceny were they in any danger of conviction for the former crime. Wharton, in his work on American Criminal Law, volume 1 (6th ed.), section 563, states the rule to be, that “if, on a trial of the major offense, there can be a conviction of the minor, then a former conviction or acquittal of the minor will bar the major.” And again, in section 565, we find him announcing another rule by which the correctness of the plea can be tested. He says: “ Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, but not otherwise.”
In effect, these rules are the same as that provided in section 313 of the third division of the Criminal Practice Act, which declares that the defendant acquitted or convicted shall not again be tried for the offense charged in the former indictment, or for any lower degree of that offense, or for any offense necessarily included therein. The law carries with it the implied permission to prosecute for any offense not necessarily included in the former charge.
After a careful examination of the authorities relied on by the defense, we are constrained to hold that under the statutes of Montana the defendants have never been in jeopardy for the crime of burglary, and therefore the plea is not well taken.
The ruling of the trial court must be reversed; and it is so ordered.
Judgment reversed.
McConnell, C, J., and Bach, J., concur.