concurring in part and dissenting in part:
I concur in the determination by the majority that the defendant’s convictions' for burglary, larceny and conspiracy to commit each of these two separate and distinct crimes should be affirmed. I dissent from that portion of the majority opinion which orders the trial court to modify its sentence so that the sentence imposed on count 3 (grand larceny) shall run concurrently with the sentence imposed on count 1 (burglary). In my view we have no power or authority to direct such a modification.
The defendant was charged with having burglarized a building belonging to Barnard’s Incorporated on April 1, 1966. The burglary statute in effect as of that date was C.R.S. 1965 Perm. Supp., 40-3-5 and that statute defined the crime of burglary and then went on to declare that a person convicted of such crime shall he punished by confinement in the state penitentiary for a term of not less than one year nor more than ten years.
In a separate count defendant was also charged with having committed on or about April 1, 1966, the crime known as grand larceny, namely, the theft of some 127 sport jackets, 29 sweater shirts and 1 sport shirt, all of a total vaiue in excess of $50. The larceny statute in effect as of April 1, 1966 was C.R.S. 1963, 40-5-2, and that statute defined the crime of larceny and then provided that a person convicted of larceny where the article or articles stolen exceed the value of $50 shall he punished by- confinement in the' penitentiary for a term of "not less than one year nor more than ten years.
*194A jury convicted the defendant of both burglary and larceny and in connection with the larceny conviction the jury set the value of the stolen articles as “over and above $3,000.”
Based upon these two particular convictions the trial court sentenced the defendant to a term of from eight to ten years on the burglary charge and a similar term of from eight to ten years on the larceny charge, the two sentences to be served consecutively and not concurrently. I recognize that the defendant was also sentenced to a term of from two to five years in the state penitentiary on the crimes of conspiracy to commit burglary and conspiracy to commit larceny, but these sentences were to be served concurrently with the sentences meted out on the larceny and burglary counts. Hence, the sentences imposed on the conspiracy counts have no bearing on our present discussion.
I am uncertain as to whether the majority hold that the consecutive sentences imposed by the trial court on the burglary and larceny convictions were unlawful in the sense that the trial court did not have the power to so do, or that the consecutive sentences, though lawful, were simply “inherently wrong and basically unjust . . . .” In my view the majority opinion is unclear in this regard. But in any event, the authority cited by the majority in support of their order to the trial court to make these particular sentences run concurrently, rather than consecutively, is singularly unconvincing, at least to me. Let us now examine the authority relied upon by the majority to support what I believe to be a rather startling disposition of the present controversy.
State v. Satterlee, 58 Wash.2nd 92, 361 P. 2d 168 presents a lesser included offense situation and in connection therewith the Supreme Court of Washington declared that one who pleads guilty to an “included offense” (larceny) and is punished therefor cannot thereafter be prosecuted for the greater offense (robbery), the lesser offense in such case being of course an essential ingredi*195ent of the greater. The instant ease is clearly not a lesser included offense situation, as burglary is most certainly not a lesser included offense in a larceny charge, nor is larceny a lesser included offense in a burglary charge. Hence, I do not regard Satterlee to be any authority for the conclusion reached by the majority.
Nor in my view does State v. Teutsch, 80 S.D. 462, 126 N.W. 2d 112 furnish much, if any, support for the present remand to the trial court. There the defendant was convicted under two counts both of which related to a single offense, and it was held that though a sentence on each count did not constitute double jeopardy a so-called “general sentence” should have been imposed. The charge against the defendant in that case related to the failure to pay the state certain motor fuel taxes collected by the defendant. Hence, the factual situation in Teutsch is completely dissimilar to that of the instant one. Be all that as it may, in that case the Supreme Court of South Dakota actually recognized and approved the general rule on this subject, which is that “the same act or transaction may constitute two distinct offenses and justify conviction on both and separate sentences to run consecutively if each offense as defined by statute requires the proof of some fact or element not required to establish the other.” Certainly burglary requires the proof of some fact or element not required to establish larceny, namely a breaking and entering, be it with or without force, and conversely, larceny also requires proof of some fact or element not required to establish burglary, namely the felonious stealing, taking and carrying away of the personal goods or chattels of another. In my view the Teutsch case supports my position on this matter, and not the position taken by the majority.
Finally, I suggest that Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L.Ed. 2d 370 be confined to the facts of that particular case. And this is not just my idea, as indeed the United States Supreme Court has itself clearly indicated that Prince should be narrowly applied. In that *196case the United States Supreme Court was faced with consecutive sentences imposed for the crimes of bank robbery and entering a bank with the intent to commit a felony. In connection therewith, that Court clearly recognized that it was dealing with a special type statute, namely the Federal Bank Robbery Act, and observed as follows: “. . . . we are dealing with an 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.” I agree that the rule announced in Prince “can and should be differentiated from similar problems in this general field raised under other statutes.” And this is the sum total of the authority relied upon by the majority to depart from what has been accepted practice and procedure in this state for some ninety-three years.
Briefly stated, my views on the particular subject at hand are as follows: (1) burglary and larceny are separate and distinct crimes based on separate and distinct acts, even though the acts may, as they do here, arise out of the same general transaction, which transaction, though perhaps single and continuing in nature, is still very much divisible; (2) neither burglary nor larceny is a lesser included crime of the other and neither in some mystical way ever merges with the other; and (3) where a defendant in a given case is convicted of both burglary and larceny the trial court should impose a separate sentence for each and whether such sentences are to be concurrent or consecutive is a matter which lies exclusively within the province of the trial court and is not subject to review by us. I recognize that a trial court often, perhaps generally, imposes separate sentences for burglary and larceny but then declares that they shall be served concurrently. However, I still maintain that a trial court has the power to impose consecutive sentences for burglary and larceny, if it feels that the *197justice of the case at hand demands it. The foregoing, I believe, is in conformity with the general rule on this particular subject and is in conformity with the longstanding practice in this state. In support of my position, see: 21 Am. Jur. 2d Criminal Law § 546, et seq.; 24 B C.J.S. Criminal Law § 1990, et seq.; United States ex rel Bryant v. Fay, 211 F. Supp. 812; Chrysler v. Zerbst, 81 F. 2d 975; People ex rel Cannata v. Jackson, 6 App. Div. 2nd 919, 175 NYS 2d 945; and State v. Teutsch, supra.
It is interesting to note that even counsel for the defendant, both in his written brief and upon oral argument, clearly concedes that the action of the trial court in imposing consecutive sentences on burglary and larceny was lawful, and only claims that under the circumstances of this particular case such was harsh and unfair. In this regard in his brief defendant states as follows: “There is no question that a court may impose consecutive sentences on a defendant convicted of more than one count of an information, but it is submitted that this should be done only in rare cases in which there are aggravating circumstances.”
Whether the several sentences fit the several crimes committed by the defendant is a bit hard to tell from the record before us. We, of course, do not have the benefit of knowing what the presentence report of the defendant disclosed. Be that as it may, the question of sentence was peculiarly within the province of the trial court, and I know of no instance where this court has ever upset sentence which was lawful, on the ground that the sentence though lawful was too harsh.
Finally, I recognize that some states have dealt with the problem by special legislation which would conceivably preclude consecutive sentences of the type here imposed. However, in my view, at least, our General Assembly has not thus legislated. Hence, I disagree with the statement in the majority opinion that the sentencing imposed in the instant case somehow “evades the legislative, intent.” What legislative intent in which- statute *198does the majority refer to? This to me is most unclear. As concerns the matter of legislative intent, it seems-to me that the General Assembly in the statutes mentioned at the outset of this dissent has recognized that burglary and larceny are separate crimes carrying separate penalties. I for one feel we should not now change the law and the longstanding practice by judicial legislation of a most obvious type. Whether consecutive sentences for burglary and larceny, even when arising out of the same transaction, are inherently unjust or on the contrary are fitting and proper in the sense that if a person commits two separate crimes he may well expect two sentences, cumulatively imposed, is a policy matter which should be resolved by the legislature and not the judiciary.'- ■
I would therefore affirm the judgment and sentence of the trial court in its entirety.