questions in reference to such title.-People v. Scott, 32 Cal. 200.

13. Same Identification sufficient.-In prosecution for arson, it is not necessary for the prosecution to prove the ownership as alleged in the indictment, provided the house was otherwise described sufficiently for purposes of identification and otherwise identified by the evidence.-People v. Laverty, 9 Cal. App. 756, 759, 100 Pac. 899. 14. Same-Sufficiency of.-Evidence that defendant was tenant and paying rent for building to his landlord is sufficient proof of ownership.-People v. Simpson, 50 Cal. 304, 306; People v. Handley, 100 Cal. 370, 372, 34 Pac. 853.

15. Evidence that person had occupied house as place of residence for about two months prior to fire, and had slept in it night previous, though he did not own it, is sufficient to establish ownership, under indictment charging defendant with burning dwelling-house of one K., under statute providing that every house, etc., which shall have been usually occupied by persons lodging therein at night shall be deemed dwelling-house of any person so lodging therein.-People v. Wooley, 44 Cal. 494, 496.

16. Evidence that building burned was purchased by one member of partnership, and afterwards half-interest therein conveyed to his copartner, was sufficient to identify property destroyed with that laid in information, which alleged that property was owned by partnership, without proving whether such partners were cotenants or joint tenants.-People v. Greening, 102 Cal. 384, 386, 36 Pac. 665.

was

17. Evidence held sufficient to show that barn alleged to have been burned property of person who was alleged in information to own it, where defendant testified that he had sold such barn to third person and afterwards sold it to person described, giving him bill of sale therefor.-People v. Davis, 135 Cal. 162, 164, 67 Pac. 59.

18. Indictment-Must aver that building burned was property of another, or at least qualified property of another, rightfully in possession or occupancy of such other at time of offense.-People V. De Winton, 113 Cal. 403, 406, 54 Am. St. Rep. 357, 33 L. R. A. 374, 45 Pac. 708. See People v. Myers, 20 Cal. 76; People v. Fisher,

51 Cal. 319; People v. Russell, 81 Cal. 616, 617, 23 Pac. 418.

As to allegation of ownership in indictment, see notes, 81 Am. Dec. 71; 10 Am. Cr. Rep. 36.

19.

Sufficient, where it alleges property to have been in landlord, where arson was committed by tenant in possession of property.-People v. Simpson, 50 Cal. 304, 306; People v. Fisher, 51 Cal. 319, 320.

20. Occupancy by thirty-five lodgers— At the time of offense being shown, this meets the requirement of the above section. It is not necessary that any of these lodgers be the actual owner of the premises. It is sufficient that these lodgers were in the rightful possession and occupancy of a portion of the premises at the time of the alleged crime. The actual ownership of the building is expressly made immaterial by the provisions of above section and any statements respecting the same contained in the information may be treated as surplusage.-People v. Argrusa, Cal. App. —, 193 Pac. 819, distinguishing People v. Myers, 20 Cal. 76. 21. Proof-In prosecution for arson, in burning barn belonging to another, which was situated on land of railroad company, it was not encumbent on prosecution to establish that building was not a fixture to said land and did not belong to said railroad company, it being sufficient that at time of burning another person was rightfully in possession of or was actually occupying such building, or any part thereof.-People v. Davis, 135 Cal. 162, 166, 67 Pac. 59.

22. That the building burned is property of landlord is sufficient, though occupied by tenant, who burned it.-People v. Simpson, 50 Cal. 304, 306.

23. Same-Name of owner of building burned, although alleged in indictment, is immaterial, because it was not necessary part of description of crime charged, and therefore not necessary to be proved.— People v. Handley, 100 Cal. 370, 372, 34 Pac. 853.

As to proof of ownership, see note, 10 Am. Cr. Rep. 36.

24. Same-Question of title or right of possession relevant.-Quære, whether question of title and right of posession could be deemed of any force or relevancy in prosecution for arson.-See People v. Scott, 32 Cal. 200, 202.

6. Same-Gist of the crime.

7. Same-Value of thing taken immaterial.

8. Entry-As to with intent to commit felony.

9. Same-Entering store in night-time, but during business hours.

10. Same "House," in statute.

11. Same-Room in house.

12. Same Stairs and hallway.

13, 14. Intent in entering building-A necessary element.

15, 16. Same-Consummation immaterial. 17. Same-Entering at invitation of proprietor.

18-20. Same-Entry with intent to commit larceny.

21. Same-Entry with intent to commit
two felonies.

22. Same-Entry with intent to murder.
23. Same-Intoxication of accused.
24. Same-Question of intent one of

fact.

25, 26. Same-Sufficiency of evidence. 27-30. Larceny-Not included in burglary. II. INDICTMENT AND INFORMATION.

31, 32. As to charging the crime in the language of the statute.

33. Arson-Entry with intent to commit. 34, 35. Description of property-As to sufficiency of.

36, 37. Felony-Entry with intention to commit.

38. "Larcey"-Entry with intent to commit charged.

39, 40. Larceny-Entry with intent to commit.

41. Same-Same-Degree of larceny in

65. Same

Same Bag of burglar's tools-In apartment of woman with whom accused was living unlawfully.

66. Same Comparison between tracks
and shoes.

67. Same-Conduct of defendant.
68. Same-Confessions and statements
of defendant.

69. Same-Conversations of witness with
third person-In presence of de-
fendant admissible, when.

70. Same-Examination of witness as to defendant's character.

71. Same-Incriminating statements, admission of-Harmless error, when. 72. Same-Intent, proof of-Rebuttal evidence excluded, error.

73. Same-Memorandum-Witness may testify from, when.

74, 75. Same-Other offenses. 76-79. Same Stolen property in possession of accused.

war

91. Same-Entry with felonious intent. 92. Same-Mere possession of stolen property-Not sufficient to rant conviction of burglary. 93, 94. Same-Ownership of property. 95-103. Same-Recent unexplained possession of stolen property.

104. Same Situation of building-Sufficiency of proof of premises. 105-107. Same-Time-As to generally. 108. Same Same-Night-time-Proof of under definition of the code. 109. Same-Same-Same-Between "sunset and sunrise"-Sufficiency of evidence.

110. Same-Venue, proof of. 111-113. Variance-Description of building. 114. Same-Same-Basement or cellar. 115. Same-Grand "or" petty larceny. 116, 117. Same-Ownership of property. 118, 119. Same-Same-Partnership. 120, 121. Same-Specific allegation as to place and ownership.

IV. INSTRUCTIONS TO JURY.
122-124. As to attempt to steal while in
building.

125. As to burglary in first degree.
126. Same-Instruction is not prejudicial,
when.

127. As to burglary in second degree.
128. As to conspiracy-That there was no
evidence.

129-132. As to intent on entry.

133. Same-As to presumption of unlaw-
ful intent.

134. As to intoxication of defendant.
135. As to moral certainty requisite to
conviction.

136. As to night-time being the time be-
tween sunset and sunrise."'

66

1. Burglary a felony.-Every burglary, of whatever degree, is a felony, being punishable by imprisonment in state's prison.-People v. Smith, 143 Cal. 597, 599, 77 Pac. 449. See People v. Ferns, 27 Cal. App. 285, 149 Pac. 802.

2. Construction of section-As not making it an offense to enter building with intent to commit “larcey," there being no such offense known to law.-People v. St. Clair, 55 Cal. 524, 525; People v. St. Clair, 56 Cal. 406, 407.

3. Same-With section 460, post-Construed with section 460, post, it is evident that it was intention of legislature to provide for a crime which is styled burglary, and which consists of an entry with attempt to commit petty felony or burglary, either at night-time or in day-time. This crime is divided into two degrees; and entry with such intention in the nighttime and entry with like intent in the day

time. Duty of determining from evidence whether offense is burglary in first or second degree is imposed on court and jury. Inasmuch as indictment to cover both degrees need not specify that entry was either by day or night, it follows that averment must be general, without such specification, and such averment must be construed as charging an entry both in night-time and day-time; thus construed, whether defendant be found guilty of burglary in first or second degree, he will be found guilty of an offense charged in the indictment.-People v. Jefferson, 52 Cal. 452, quoted in People v. Barnhart, 59 Cal. 381, 383.

4. Definition of burglary, as given in common law and by code, differs only in that latter makes it burglary to enter house with intent to commit petty larceny as well as felony.-People v. Nelson, 58 Cal. 104, 106.

5. Elements of offense-A breaking is not an essential element of burglary; an entry of any character made for the purpose and with the intent to commit the crime of grand or petty larceny, is sufficient.-People v. Ferns, 27 Cal. App. 285. 149 Pac. 802.

As to the essential elements of the crime and what "breaking" will support an indictment for it, see note, 2 Am. St. Rep. 383.

6. Same-Gist of the crime of burglary is in the entry of a building with the intent to commit any of the crimes mentioned, and it is, therefore, immaterial in the proof of the consummation of the crime whether a larceny or other felony is shown to have been actually committed or not if the intent to do so is present, and proof that a larceny or felony had been committed in the building by the party making the entry would be properly entertained, not alone for the purpose of showing the intent, but also the fact of the entry.People v. Piner, 11 Cal. App. 542, 548, 105 Pac. 780.

7. Same-Value of thing taken immaterial. The failure to show in such a prosecution that the property taken was of sufficient value to make the taking thereof a felony is immaterial, for the reason that the statute defining the offense provides that every person who enters a room with intent to commit grand or petty larceny or any felony is guilty of burglary. People v. Ferns, 27 Cal. App. 285, 149 Pac. 802.

8. Entry-As to with intent to commit felony.--Construed to render entry of store with intent to commit felony without regard to character, kind, time, or manner of entry, save that such entry must be accompanied with certain intent and common-law element of use of force by breaking, in order to constitute burglary, has long since ceased to exist by express enactment, and fact that store is public

place, which public were invited to enter, will not affect offense, though it may render it more difficult to prove criminal intent where entry was made during business hours.-People v. Barry, 94 Cal. 481, 482, 29 Pac. 1026.

As to intent, see pars. 13-26, this note.

As to breaking and entering, see note, 2 Am. St. Rep. 383; also brief in 46 L. R. A. 312.

9. Same-Entering store in night-time, but during business hours, while store was open to public, with intent to commit larceny, constitutes burglary.-People V. Brittain, 142 Cal. 8, 9, 100 Am. St. Rep. 95, 75 Pac. 314; following People v. Barry, 94 Cal. 481, 29 Pac. 1026. See State V. Carroll, 13 Mont. 246, 33 Pac. 688; State v. Green, 15 Mont. 424, 39 Pac. 322; State v. Watkins, 11 Nev. 30.

10. Same "House," in statute making it burglary to enter any house, apartment, or tenement, is any structure which has walls on all sides and is covered with roof, whether inhabited or not, so that entry in • chicken-house which is part of barn constitutes burglary.-People v. Stickman, 34 Cal. 242, 244.

As to what is a "house" within the meaning of the law of burglary, see note, 22 Am. Dec. 150.

As to what constitutes dwelling-house, see note, 2 Am. St. Rep. 388.

11. Same-Room in house.-To constitute room, partition between it and rest of house need not extend to ceiling or roof of house, and partition eight or nine feet high from floor would be sufficient partition. People v. Young, 65 Cal. 225, 226, 3 Pac. 813.

12. Same-Stairs and hallway. Where stairs and hallway of building were in occupancy of person named in information, and defendant entered in and upon such occupancy with intent to commit larceny in any part of building, he was guilty, though there was no internal communication between part of building entered and that in which it was alleged defendant intended to commit larceny.-People v. Hope, 62 Cal. 291, 298.

13. Intent in entering building—A necessary element to constitute burglary.People v. Phelan, 93 Cal. 111, 113, 28 Pac. 855.

As to intent to commit a felony, see par. 8, this note.

As to criminal intent in burglary, see note, 72 Am. St. Rep. 704.

As to necessity of intent, see note, 2 Am. St. Rep. 391.

14. Entry with intent to commit any of the crimes referred to in statute constitutes the offense.-People v. Hall, Cal. 595, 597, 30 Pac. 7; People v. Devlin, 143 Cal. 128, 129, 76 Pac. 900.

94

15. Same-Consummation immaterial.Offense is complete when entry is made, whether intent be afterwards consummated or not.-People v. Hall, 94 Cal. 595, 597, 30 Pac. 7. See People v. Garnett, 29 Cal. 622, 628; People v. Curtis, 76 Cal. 57, 58, 17 Pac. 941; People v. McFarlane, 138 Cal. 481, 484, 61 L. R. A. 245, 71 Pac. 568, 72 Pac. 48.

im

16. After one has entered building with intent to commit any other felony than grand or petty larceny, he has committed burglary, but he may then find it possible to commit the felony which it was his intention to commit when he entered, and conclude to commit larceny, by stealing some article of value in building, and hence may in rapid succession commit two crimes, so that conviction for larceny made after entering building will not constitute former jeopardy in prosecution for burglary. People v. Devlin, 143 Cal. 128, 129, 76 Pac. 900.

17. Same-Entering at invitation of proprietor, and during his absence stealing some jewelry, is not burglary, nor attempt to commit burglary.-People V. Lowen, 109 Cal. 381, 383, 42 Pac. 32.

as

As to entry with consent of owner burglary, see notes, 81 Am. Dec. 365; 91 Am. Dec. 482; 2 Am. St. Rep. 387.

As to instigation or consent to crime for purpose of detecting criminal, see note, 25 L. R. A. 341-347.

18. Same-Entry with intent to commit larceny, larceny being specific crime, is burglary.-People v. Smith, 86 Cal. 238, 240, 24 Pac. 988.

19. So, also, entry to commit petty larceny. People v. Barnhart, 59 Cal. 381, 385. See People v. Ferns, 27 Cal. App. 285, 149 Pac. 802.

20. Intent to deprive owner permanently of property taken is necessary on charge of entering with intent to commit larceny. -People v. Brown, 105 Cal. 66, 68, 38 Pac. 518.

21. Same-Entry with intent to commit two or more felonies would constitute only one burglary; if another crime were actually committed, then for that another and separate charge should be made.-People v. Hall, 94 Cal. 595, 597, 30 Pac. 7.

22. Same-Entry with intent to murder. -Entering house while in pursuit of person for purpose of killing her constitutes burglary.-People v. Miller, 121 Cal. 343, 347, 53 Pac. 816.

23. Same-Intoxication of accused may be considered in determining intent in entry.-People v. Phelan, 93 Cal. 111, 113, 28 Pac. 855.

As to proof of intoxication as affecting intent, see notes, 36 L. R. A. 465-484, particularly p. 474; L. R. A. 1918A, 1168.

24. Same-Question of intent one of fact. The question of intent one of fact