People v. Shaber

32 Cal. 36

Opinions

By the Court, Shafter, J.:

The appellant was indicted for feloniously and burglariously breaking and entering in the nighttime a certain house (describing it) “ with intent to commit larceny.” On conviction, the defendant moved in arrest of judgment on the ground that the indictment did not state whose property the defendant intended to steal, nor that he intended to feloniously steal, take and carry away any property then being in the house entered.

The indictment charges the offense in the very terms used in defining it in the fifty-eighth section of the Crimes Act, as amended in 1858, (Acts 1858, p. 206,) and with all the particularity required by the two hundred and thirty-fifth section of the Criminal Practice Act. The case cannot be distinguished from 6 Cal. 487; 7 Cal. 403; 10 Cal. 309; 14 Cal. 30; People v. Garcia, 25 Cal. 533; People v. King, 27 Cal. 510 ; Regina v. Lawes, 1 Car. and Kir. 62 ; Regina v. Clarke, 1 Car. and Kir. 422-3. As a larceny actually committed is not made an element in the offense, it cannot be needful to allege one, either generally or by an averment of the facts entering into and constituting its definition. And as a forcible entry, etc., with a larcenous intent is all that is made essential to the crime, we consider that a conviction would be due even though it should appear that there were no goods in the building at the time the entry was made. The forcible entry and the intent being found or given, the crime would be complete even though it should turn out that, contrary to the calculations of the burglar, the building was empty. The sting of the crime is, in short, the guilty purpose, without reference .to the possibility of accomplishing it, in any given instance.

The judgment is affirmed.