
    Commonwealth vs. James Lowery.
    Suffolk.
    April 3, 1889.
    April 6, 1889.
    Present: Morton, C. J., Field, Devens, W. Allen, & Knowlton, JJ.
    
      Indictment — Breaking and Entering — Larceny — Verdict.
    
    On an indictment charging in the same count a breaking and entering, and a larceny, the jury may return a general verdict, or a verdict of guilty of the larceny only.
    Indictment in two counts, charging in the first count a breaking and entering a building, and a larceny, and in the second count a receiving of stolen goods.
    In the Superior Court, before the jury was impanelled, the defendant filed a motion to quash the indictment for misjoinder of counts. Hammond, J., overruled the motion.
    At the trial, the defendant’s counsel asked the judge to rule that he could not be convicted on the indictment for larceny in a building. The judge refused so to rule, and the defendant excepted.
    The jury returned a verdict of guilty' against the defendant of larceny in a building on the first count, and of not guilty on the second count.
    
      P. J. Casey, for the defendant.
    
      A. J. Waterman, Attorney General, H. C. Bliss, First Assistant Attorney General, for the Commonwealth.
   By the Court.

It is well settled that, upon an indictment charging in the same count a breaking and entering, and a larceny, the jury may return a general verdict, or a verdict of guilty of the larceny only. Jennings v. Commonwealth, 105 Mass. 586. The defendant does not argue his motion to quash the indictment, and we have no doubt that the ruling of the Superior Court thereon was correct.

Exceptions overruled.  