#### State *v.*Ruben Cooper

(No. 7030)

Submittd October 27, 1931.

Decided November 3, 1931.

*256
      *Hager & Glenn,*lor plaintiff in error.

*Howard B. Lee,*Attorney General and *B. A. Blessmg,*Assistant Attorney General, for tbe State.

Woods, Judge:

Ruben Cooper complains of a judgment of tbe circuit court of Logan County sentencing him to confinement in tbe penitentiary for a term of five years.

Tbe indictment was in two counts. Tbe first charged felonious entering without breaking of a certain store building of Tri-State Refining Company, tbe same not adjoining to or occupied with a dwelling bouse there situate, with intent to commit larceny and tbe actual taking of merchandise of tbe value of $50.00; tbe second, tbe larceny of five “tires” of tbe aforesaid value. Tbe defendant interposed a general demurrer, which was overruled.

Tbe second count, as pointed out by tbe defendant, is defective in its description of tbe property alleged to have been stolen. Even though this is an age of automobiles, it cannot be taken for granted that “tires” refers to automobile tires alone. *Anable*v. *Com.,*24 Gratt. 563. Tbe first count sufficiently charged an offense under section 13, chapter 145, Code 1923. Tbe allegation therein of actual larceny not being necessary, but merely in aid of intent, need not be made with tbe game formality as a count for larceny itself. *State*v. *McClung,*35 W. Va. 280; *State*v. *Caddle,*35 W. Va. 73. There being one good count, the general demurrer was properly overruled. *State*v. *McClung, supra; State*v. *Cartright,*20 W. Va. 32. And tbe verdict being general, it is deemed a conviction of tbe offense of entering and not for larceny. *State*v. *McClung, supra; Speer’s Case,*17 Gratt. 570. Likewise, on a general demurrer, one good count is sufficient to support a verdict. Section 23, chapter 159, Code 1923.

Tbe second assignment of error is that tbe state has failed to prove an entering without breaking, as alleged in tbe indictment. Tbe evidence of tbe state is to tbe effect that there was a breaking and entering. Is this variance fatal? Breaking and entering, and entering without breaking, under tbe statute (secs. 12 and 13, chap. 145, Code 1923) are kin*257dred offenses. While it might be a little more difficult to show a breaking, we are of opinion that the defendant cannot complain of such evidence, since the fact that there was a breaking and entering is sufficient to show an entering, which, when shown to have been done with the intent to commit larceny, establishes a *prima facie*case of the offense charged.

The defendant and one Leland Jones, after being apprehended in Mingo County, were arrainged before a justice in Logan County. At the preliminary hearing the tires, which were likewise found in Mingo County, were identified by, and returned to, Porter Lynn, the manager of the Tri-State Refining Company’s service station. According to Lynn’s testimony, the defendant and Jones had been around the service station a number of times during the two weeks immediately jneceding the theft, and had bought oil and gas on various occasions. He also stated that both the defendant and Jones were in the tire room on the afternoon of June 29th or 30th, 1930, at which time they examined and priced the five Seiberling tires, each of which at that time had attached thereto a tag bearing a duplicate of its serial number; that the morning following the tires were gone; that the tags had been removed from the tires and left lying on the floor; that said tags were used in identifying the tires; that the building had been broken into. The special constable, who had been authorized to go to Williamson to get the defendant and Jones, found three of the tires at the city hall and two on an automobile. This witness stated that the defendant told him that the automobile belonged to him, and further, that he had bought the tires from a stranger. The evidence of the defense is in direct conflict with that offered on behalf of the state. Defendant denies telling the constable that he owned the car, and insists that it belonged to Jones. He states that he was not in the vicinity of the theft until the middle of July, at which time he, together with Mary Ely, rode to Williamson with_Jones in the latter’s car; that he was never in the Tri-State Refining Company’s station. Mary Ely was the only other witness called for the defense. According to the defendant, Jones, who was jointly indicted within him, *258is now in Virginia. The jury saw fit to believe the state’s witnesses in preference to the defendant and his witness. So far as the verdict is concerned, it must stand. *State*v. *Winans,*100 W. Va. 418.

The judgment must be affirmed.

*Judgment affirmed.*