
    Cronan v. State.
    
      (Knoxville.
    
    September Term, 1904.)
    1. BILL OF EXCEPTION'S. A nullity unless filed.
    It is a well-settled rule in this State that unless the record affirmatively shows that the hill of exceptions was filed in the court helow, it will he treated as a nullity and no error can he assigned thereon.
    Case cited and approved: Bundren v. State, 109 Tenn., 225.
    3. CRIMINAL LAW. Only one judgment can he pronounced under indictment, charging burglary with intent to steal and larceny.
    Where, under an indictment charging a burglarious breaking and entry into a eamphouse with intent to steal and petit larceny, the verdict is that defendant is guilty of both crimes, only one judgment can he entered because the larceny is to be considered as embraced in the burglary and one punishment is imposed on one combined offense.
    Cases cited: Pardue v. State; 4 Baxter, 10; Allen v. State, 1 Tenn. Cas., 4,73; Commonwealth v. Hope, 22 Pick. (Mass.), 1.
    3. CRIMINAL PRACTICE. Indictment charging burglary will sustain conviction for other cognate offenses.
    An indictment charging burglary in its technical sense will sustain a conviction for a felonious breaking and entry into any house of another, other than a mansion house.
    Code cited and construed: Sec. 6540 (S.); sec. 5440 (M. & V.); sec. 4675 (1858).
    
      4. SAME. Construction of term “burglary.”
    Under our statutes tbe word “burglary” is to be treated as a generic term, covering several cognate offenses, including a felonious breaking and entry charged in tbe first count of tbe indictment referred to in tbe second bead above, and there was no error in its use by tbe jury in framing their verdict.
    Code cited and construed: Secs. 6535-6538 (S.).
    5. SUPREME COURÍ. Will correct erroneous judgment.
    It is well settled that this court will correct an erroneous judgment, and will enter such judgment as should have been entered in tbe court below.
    Cases cited: Griffin v. State, 1 Cates, 17-35; Sword v. State, 5 Hum., 101.
    FROM POLK.
    Appeal in error from tbe Circuit Court of Polk County. — George L. Burke, Judge..
    John S. Shamblin and W. A. Guinn, for Cronan.
    Attorney-General Cates, for the State.
   Mr. Justice Neil

delivered the opinion of the Court.

The plaintiff in error was indicted in the circuit court of Polk county under an indictment containing two counts, charging as follows: .

“That Bud Cronan heretofore, to wit: on the 15th day of May, 1904, in the county aforesaid, did unlawfully, feloniously, forcibly and burglariously break and enter in the nighttime the camp house of John F. Clemmer, with the intention of committing a felony, to wit, a larceny.
“Second count: And the grand jurors aforesaid upon their oath aforesaid do further present and say that on the day and year aforesaid, and in the State and county aforesaid, the said Bud Cronan did unlawfully and fel-oniously take, steal and carry away, one sack of flour arid some cooking vessels of the value of one dollar, .the personal property of John L. Clemmer with the intention of converting the same to his own use and depriving the true owner thereof, against the peace and dignity of the State.”

The verdict of the jury was as follows: .

“They find the defendant guilty of burglary as-charged in the first count of the indictment and fix his punishment for said crime at three years in the penitentiary, and also find him guilty of larceny as charged in the second count of the indictment and fix his punishment on said second count for larceny at one day in the county jail of Polk county.”

Upon this verdict judgment was entered condemning the plaintiff in error to confinement in the penitentiary at hard labor for a period of three years, and also to confinement in the. county jail for a period of one day and a judgment of infpmy was pronounced. Prom the foregoing judgment he has appealed and assigned errors.

The errors assigned are based upon the facts, but we cannot look to these, inasmuch as the plaintiff in error was allowed thirty days to file a bill of exceptions, and it does not appear that such bill of exceptions was ever marked filed. Bundren v. State, 1 Cates, 225.

We are of opinion, however, that it was an error in the court below to render a judgment for both of the crimes charged. It is true that the defendant below might have been convicted under the indictment as framed there for feloniously breaking and entering the house referred to, or for larceny. Judgment, however, could not be entered against him for both. On a conviction under the first count, the crime ayerred in the second would be included. Pardue v. The State, 4 Bax., 10, 13, 14. On the latter page, the following is quoted, with approval, from Commonwealth v. Hope, 22 Pick. (Mass.), p. 1, viz.: “Upon a general conviction, the jury finding all the averments to be true, the charge of felony is considered as embraced in the charge of burglary, and one punishment is imposed as upon one combined offense.”

It is observed that the first count of the indictment charges the intent to commit the crime of larceny only in general terms. It has been held that under such an indictment evidence could be introduced showing the actual commission of the crime of larceny, and that this would satisfy the charge of intent under which the breaking was alleged to have occurred. Allen v. The State, 12 Lea, 424-432. See, also, Stevenson v. The State, 5 Bax., 681, and Williams v. The State, 1 Shan., 473.

It is also observed that tbe verdict finds tbe defendant below guilty of “burglary.” Technically, burglary is tbe breaking and entering into a mansion bouse by nigbt with intent to commit a felony. It does not appear from tbe indictment that tbe camp bouse was a mansion bouse, and so tbe defendant was not technically guilty of burglary in tbe ordinary sense, but. the description of tbe offense falls within tbe provisions of Shannon’s Code, 6537, which reads as follows: “Whoever shall break and enter into tbe business bouse, outhouse, or any other bouse of another, other than a mansion bouse, with intent to commit a felony, shall be imprisoned in tbe penitentiary not less than three nor more than fifteen years.”

It is also provided in section 6540 that a person indicted for burglary may be convicted under tbe section just quoted. In other words, under our statutes, tbe word “burglary” is treated as a generic term covering several offenses, falling under sections 6535-6538 of Shannon’s Code.

There was no real error, therefore, to be found in tbe use of tbe term burglary in tbe verdict of tbe jury.

It results that the judgment of tbe court below must be modified (Griffin v. State, 1 Cates, 17-35; Sword v. State, 5 Hum., 101) so as to release tbe defendant below of the judgment on tbe verdict as to petit larceny, but in other respects it will be affirmed.'  