(dissenting):
There are two questions before us. The first is whether, in some cases, the D. C. housebreaking and robbery statutes prohibit cumulative punishment. The second is whether Irby’s is one of those cases.
The answer to the first question depends entirely upon statutory construction.1 The issue is whether Congress authorized cumulative punishment not whether the trial judge properly exercised judicial sentencing discretion. No doubt, the process of statutory construction, which entails examining the history of these common law crimes, the legislative history of the statutes, the words of each statute, and the relationship between them, is very difficult. But the process is not necessarily more difficult here than in many other contexts in which we must construe statutes. In any event, the difficulty of the process does not excuse us from our duty.
We depend upon statutory construction because the authority to punish resides in the legislature, not in the courts, and we cannot arrogate to ourselves authority which has not been granted. Neither can we assume that Congress wanted separate punishment simply because it created separate crimes. To do so would be to allow the prosecutor and the trial judge almost unfettered discretion to multiply punishment since often it takes nothing more than a fertile imagination to spin several crimes out of a single transaction.2 The cases are perfectly clear that the legality of cumulative punishment depends on more than a finding that separate crimes have been committed.3 Indeed, the Supreme Court has established a “rule of lenity” which requires courts to forego cumulative punishment when there is a doubt about what Congress intended.4
*440This rule of lenity may well be a constitutionally compelled canon of construction. It is persuasively argued that
Double jeopardy precludes a judge from convicting and punishing twice for the same offense. If a court creates multiple units of punishment ad hoc when, from all that appears in the statutes and their history, the legislature created only multiple units of prosecution, the court offends double jeopardy by punishing twice for a single legislative offense. Double jeopardy therefore requires that in determining the unit of punishment for related offenses, doubts should be resolved against punishing twice for what may be a single offense.5
The Government does not challenge the validity of the rule of lenity.6 Nonetheless, the Government argues that these two crimes should be punishable cumulatively simply because they are separate offenses — historically separate as well as codified in separate statutes.7 It may be that housebreaking and robbery were distinct offenses at common law. It should be noted, though, that both burglary (the common law predecessor to housebreaking) and robbery were thought to be aggravated forms of the same crime — larceny.8 Further, certain activity punishable at common law only as a larceny now violates both the housebreaking and robbery statutes.9 In any event, even if the housebreaking and robbery statutes had more distinct ancestors, that fact would not determine whether the two crimes could be punishable separately.10
On the issue of separate punishment, the common law and legislative history are even more ambiguous. Around the *441time of codification there was a lively debate about the legality of cumulative punishment for crimes similar to housebreaking and robbery.11 Congress does not seem to have taken any position when it codified the D.C. laws, for there is no provision in the original D.C.Code (or the present one) about cumulative punishment. And there is no mention of this problem in the Congressional reports and debates which preceded passage of the Code.
We must turn, then, to the statutes themselves. The housebreaking statute reads as follows: “Whosoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling * * * whether at the time occupied or not * * * with intent * * * to commit any criminal offense, shall be imprisoned for not more than fifteen years.” 22 D.C. Code § 1801 (1961). Housebreaking, by the terms of the statute, is committed in preparation for some other criminal offense which is intended at the time of entry. It seems most likely that Congress, instead of desiring to punish for both the preparation and the completion, created two separate crimes in order to punish those housebreakers who are thwarted and who do not complete the intended crime.
The Supreme Court faced a similar situation in Prince v. United States.12 There the defendant was convicted of robbing a federally insured bank and entering the bank with intent to commit a felony. The Supreme Court reasoned that:
It is a fair inference from the wording in the Act, uncontradicted by anything in the meager legislative history, that the unlawful entry provision was inserted to cover the situation where a person enters a bank for the purpose of committing a crime, but is frustrated for some reason before completing the crime. The gravamen of the offense is not in the act of entering, which satisfies the terms of the statute even if it is simply walking through an open, public door during normal business hours. Rather the heart of the crime is the intent to steal. This mental element merges into the completed crime if the robbery is consummated.13
Therefore, the Supreme Court held that Congress did not intend to punish cumulatively for the preparation and the completed crime.14
*442A similar inference is warranted here, since, as in Prince, our statute defines housebreaking as entry with intent to commit another crime. And, as in Prince, the gravamen of the offense is not simply the act of entering, which need not be forcible to satisfy the terms of the statute.15 Indeed, it is possible that a person may be guilty of housebreaking although he has not committed a criminal trespass as long as he enters the premises with the required criminal intent.
Even if a criminal trespass is a necessary prerequisite to a finding of housebreaking, it is evident that the illegal act of entry is not the gravamen of housebreaking. If nothing more than entering without permission were involved, a penalty in the order of six months would probably be thought enough by Congress.16 However, Congress provided a much stiffer penalty for housebreaking. And the likely reason is that Congress believed that entry with an intent to commit another crime would often, in fact, lead to that other crime. As in Prince, the intent to commit another crime is at the heart of the offense. By deterring housebreaking Congress meant also to deter the intended crime which might follow. If so, then the housebreaking statutes punishes for the possibility or probability of the intended crime. We do not think Congress would have wanted to impose punishment of fifteen years for the probability of the intended crime and an additional fifteen years for the crime itself.17
Under this analysis, however, cumulative punishment is prohibited only if the crime defendant in fact committed was the same as the crime he intended to commit when he entered the dwelling. This seems to be the question which divides the court. The majority does not think “the indictment can be characterized as asserting that appellant’s course of conduct was motivated by a single criminal intent.” Judge Leven-thal thinks the record is unclear and would require more specific allegations of a single intent. We think the record is clear enough to show that Irby had *443only one criminal purpose when he committed the two crimes.
According to the indictment, Irby entered the complainant’s dwelling with an “intent to steal [his] property.” While in the ho,use, Irby carried out his intention and stole two rings worth $2,200.18
The fact that in order to steal he did things which made his crime robbery, as opposed, for example, to grand larceny or petit larceny, does not negate the fact that what he did within the house was motivated by the same criminal purpose (“to steal property of another”) as his illegal entry.19
Furthermore, it is significant that Irby was originally charged with carrying a dangerous weapon and assault with a dangerous weapon.20 If these charges are correct, they suggest that when Irby entered the dwelling he was already prepared to use “force and violence” (i. e., to commit robbery) if necessary.
A California state court was faced with a similar situation in Downs v. State.21 There two men broke into an office building and were engaged in looting the safe when the janitors entered the room. The two men then tied the janitors up at gunpoint. The state argued that consecutive sentences for burglary and robbery should be upheld since the trier of fact could have found that the intent to commit robbery originated only after the janitors arrived on the scene. The California court disagreed :
On or about February 24, 1958, * * * Roy J. Irby entered the dwelling of [complainants], with intent to steal property of another.
* * * # *
[Roy J. Irby there] * * * by force and violence and against resistance and by sudden and stealthy seizure and snatching and by putting in fear, stole and took from the person and from the immediate actual possession of [one of the complainants] * * * property * * * of the value of about $2,-200.00, consisting of [two] finger ring[s].
Regardless of the wording of the information, petitioner entered the telephone building with the single purpose to rifle its safe, hoping no doubt that this could be accomplished without interference, but prepared for that event by carrying a gun which he intended to and did threateningly use to consummate the crime. * * * The information, had it been worded with strict accuracy, would have accused petitioner of entering to commit either theft or robbery as might become necessary.22
Unless courts are willing to reason in this fashion, no limits can be placed on cumulative punishment in housebreaking cases. A defendant can rarely demonstrate what his mental state was when he entered the dwelling. His original intent must be inferred from his later conduct.23 If there are facts *444suggesting a departure from the original intent, the Government should have the burden of asserting them.24
We think the record sufficiently shows that defendant entered the dwelling with the objective of stealing property, by force if necessary, and that he carried out this objective. Since there is substantial doubt that Congress intended cumulative punishment in this situation, the rule of lenity must be applied. Irby should have been punished for either housebreaking or robbery but not both consecutively.
. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Davenport v. United States, 122 U.S.App.D.C. 344, 353 F.2d 882 (1965); Ingram v. United States, 122 U.S.App.D.C. 334, 353 F.2d 872 (1965). See generally, Comment, Twice in Jeopardy, 75 Yale L.J. 262, 299-23 (1965).
. See Munson v. McClaughry, 198 F. 72, 74 (CCA 8th 1912). Because the ability to spin out crimes is not based on any principles of penology, sentencing on the basis of how many crimes were spun out is an essentially arbitrary exercise. See Comment, supra, Note 1, at 304-308.
. Prince v. United States, supra, Note 1; Ingram v. United States, supra, Note 1, 353 F.2d at 873, 874-875; Davenport v. United States, supra, Note 1, 353 F.2d at 883.
. A very clear statement of the rule was made by Mr. Justice Frankfurter in Bell *440v. United States, supra, Note 1 at 349 U.S. 83-84, 75 S.Ct. 620. For other formulations see Prince v. United States, supra, Note 1 at 352 U.S. 328-329, 77 S.Ct. 403; Ladner v. United States, supra, Note 1 at 358 U.S. 178, 79 S.Ct. 209; United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 97 L.Ed. 260 (1952); Davenport v. United States, supra, Note 1 at 353 F.2d 883; Ingram v. United States, supra, Note 1 at 353 F.2d 875. And see Comment, supra, Note 1, at 308-317.
. Comment, supra, Note 1, at 317.
. Brief for Appellee at 4r-6.
. Brief for Appellee at 6; Appellee’s Petition for Rehearing at 8.
. For the relationship between robbery and larceny, see, e. g., Lamore v. United States, 78 U.S.App.D.C. 12, 136 F.2d 766 (1943); Turner v. United States, 57 App.D.C. 39, 16 F.2d 535 (1926); United States v. Sims, 27 Fed.Cas. p. 1080, No. 16,290 (C.C.D.C. 1835); 2 Bishop, Criminal Law, § 1156 (9th ed. 1923). The relationship between burglary and larceny is illustrated by the fact that they could be charged in one indictment although the usual rule was that separate offenses could not be joined. This exception was made because larceny was “included” in the offense of burglary. Wharton, Criminal Pleadings and Practice §§ 243-244, 465 (8th ed. 1880); 1 Wharton, Criminal Law, §§ 27, 818-19 (10th ed. 1896); United States v. Dixon, 25 Fed. Cas. p. 872, No. 14,968 (C.C.D.C. 1807).
. For example, at common law, a defendant who entered a bedroom non-forcibly, and then stole money from a dresser drawer while the victim was asleep, could be convicted of larceny only. There would have been no burglary since there was no breaking. See, e. g., United States v. Dixon, supra, Note 8; 2 Bishop op. cit., supra, Note 8, §§ 90, 91. There would have been no robbery since the victim was not put in fear and since the defendant did not use force. See, e. g., Turner v. United States, supra, Note 8; United States v. Sims, supra, Note 8; and 2 Bishop, op. cit., supra, Note 8, §§ 1156, 1167. Now the entry would be a housebreaking even though non-forcible. See, e. g., Henderson v. United States, 84 U.S.App.D.C. 295, 172 F.2d 289 (1949). Presumably, under our expansive reading of the robbery statute, stealing the money from the dresser would be a robbery. See, e. g., Spencer v. United States, 73 App.D.C. 98, 116 F.2d 801 (1940); Turner v. United States, supra, Note 8.
. The Government suggests two further arguments — first, that consecutive punishment has been prohibited only when the crimes arose out of the same act, and second, that Cross v. United States, 122 U.S.App.D.C. 380, 354 F.2d 512 (1965) should control. Prince v. United States, *441supra, Note 1, disposes of the first point. There the crimes were committed seria-tim, and nonetheless the Supreme Court prohibited cumulative punishment. In Cross all the parties assumed that the trial judge had authority to punish cumulatively for the two crimes. The appellant was complaining only about the fact that the trial judge provided cumulative sentences for him and concurrent sentences for two co-defendants. Appellant Cross’ Brief 42 — 44. Here the authority to set cumulative punishment is being attacked.
. See, e. g., Munson v. McClaughry, supra, Note 2; Halligan v. Wayne, 179 F. 112 (9th Cir. 1910); Anderson v. Moyer, 193 F. 499 (N.D.Ga.1912); Ex parte Peters, 12 F. 461 (C.C.W.D.Mo.1880); 1 Bishop, Criminal Law, §§ 1060, 1062 (9th ed. 1923), and cases cited therein. In 1915 the Supreme Court resolved this conflict, insofar as it related to the federal statute protecting the mail, in favor of cumulative punishment. Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153. The Morgan case is distinguishable from ours. See Note 16, infra.
. Supra, Note 1. Decisions in this area of the law depend on the construction of particular statutes. Theréfore, other cases, dealing with different statutes, may not be very helpful. In Prince itself the Supreme Court said:
None of these [other cases] is particularly helpful to us because we are dealing with a unique statute of limited purpose and an inconclusive legislative history. It can and should be differentiated from similar problems in this general field raised under other statutes. The question of interpretation is a narrow one, and our decision should be correspondingly narrow. 352 U.S. at 325, 77 S.Ct. at 405.
The same may be said for any case in this area. However, when the logic of a Supreme Court case applies, we may use it as a guide for decision.
. 352 U.S. at 328, 77 S.Ct. at 406-407.
. The Supreme Court seemed to rely also on a statement made by the Attorney Gen*442eral explaining the purpose of the proposed amendments to the Bank Robbery Act. However, his statement did not relate to the part of the statute involved in Prince. It seems clear from the Supreme Court’s language, quoted above at Note 13, supra, that the Court relied primarily on the words of the Act coupled with the absence of legislative history to the contrary. We cannot assume that the Court relied on legislative history which it characterized as “inconclusive” (352 U.S. at 325, 77 S.Ct. 403) and “meager” (352 U.S. at 328, 77 S.Ct. 403). See H.R. Rep. No. 732, 75th Cong., 1st Sess.; S.Rep. No. 1259, 75th Cong., 1st Sess.; 81 Cong.Rec. 2731, 4656, 5376-5377, 9331.
. Compare Morgan v. Devine, supra, Note 11, with Prince v. United States, supra, Note 1 at 352 U.S. 328, n. 9, 77 S.Ct. 403.
. See 22 D.C.Code, § 3102 (1961).
. There does not appear to be substantial disagreement on the issue of statutory construction. Judge Ueventhal, in his concurring opinion, invokes a “generalized legislative intent” and concludes that a defendant “is not subject to consecutive punishment on the theory that there are consecutive crimes [when] it is the same intention — intention to commit the felony of robbery — which makes a fel-only of his preliminary housebreaking as well as of the robbery that completes the sequence of the criminal episode. * * * If the judge thinks there is a reasonable doubt whether there was more than one underlying criminal intent, then the case would seem to call for concurrent sentences.”
I agree with this conclusion but do not feel it is necessary to rely on a generalized legislative intent in this case, since the statutes themselves indicate what the legislative intent was. Also Judge Lev-enthal fails to explain why it is harder to ascertain legislative intent when Congress is acting as a “super-territorial legislature” than when it is exercising one of its delegated powers.
In the majority opinion, Judge McGowan states that the “Supreme Court has, of course, been alert to prohibit double punishment for the commission of a federally-created crime and the attempt to do so. See Prince v. United States * * As discussed below, our real ground of disagreement appears to be on the question of whether there was only a single criminal episode in this case.
. The indictment read:
. We think that it is unwise as well as impractical to require the defendant to show that what he did within the house was specifically intended when he entered the house. The Supreme Court has agreed, at least implicitly. According to the Court’s characterization, the defendant in Prince v. United States, supra, Note 1, was convicted of robbery and entering a bank with the intent to commit a felony (not a robbery). Id. at 352 U.S. 324, 77 S.Ct. 403. However, the Court assumed that, at least in a general way, the “mental element” which motived the illegal entry also motivated the robbery. Id. at 328, 77 S.Ct. 403.
. These counts were dismissed when Ir-by pled guilty to housebreaking and robbery. The Government attorney stated that “The other counts are counts which would be included in the others. I think this is adequate disposition and would so recommend.”
. 202 Cal.App.2d 609, 20 Cal.Rptr. 922 (1962).
. Id. at 614, 20 Cal.Rptr. at 925 (emphasis in original). See also People v. Helms, 242 Cal.App.2d 476, 51 Cal.Rptr. 484 (1966); In re Dowding, 188 Cal.App. 2d 418, 10 Cal.Rptr. 392 (1961).
. The Government itself often uses evidence of defendant’s later conduct to prove he entered with an intent to commit a *444crime. See Naples v. United States, 120 U.S.App.D.C. 123, 127, 344 F.2d 508, 514 (1964). See also Junios Bae Section, D.C. Bae Association, Ceiminal Juey Insteuctions eoe the Disteict of Columbia 55 (1966).
. If, for example, defendant entered a dwelling equipped with burglar’s tools, burlap bag, etc., but then raped an occupant, the Government could use the possession of the tools as evidence that his intended and actual crimes were different.