People v. Dwyer

THOMPSON, J.

The defendant has appealed from a judgment of conviction of two counts of an information charging him with separate burglaries. He was also charged with three prior convictions of felonies, to each of which he pleaded guilty. The jury found him guilty of burglary of the second degree under both counts of the information. Judgment of conviction was accordingly rendered. The defendant, through his counsel, gave notice of appeal in open court, but failed to file with the clerk his application for transcription of the testimony and proceedings of trial, designating the grounds of appeal and the points relied upon, as required by rule II, section 7, of the Rules for the Supreme Court and District Courts of Appeal.

In spite of the omission to conform to the requirements of rule II, section 7,

supra,

since the appellant appears without counsel, in proper person, we have examined the record on its merits.

The appellant contends that the information fails to state facts constituting the offenses of burglary because it is not alleged the defendant entered the buildings with the “felonious or burglarious” intent of committing a theft of property. It is also asserted the evidence fails to support the verdicts or judgment; that the court erred in receiving expert testimony regarding the footprints of the defendant in a deposit of slaked lime; that the court erred in restricting the testimony offered by the defendant, and that the court erred in failing to submit to the jury forms of verdicts based on the theory of burglary of the first degree since under section 1157 of the Penal Code the jury is required to fix the degree of the crime involved.

The separate counts of the information sufficiently charge the defendant in the language of section 459 of the Penal Code with the crime of burglary by alleging that at specific dates he entered the designated buildings “with the intent to commit theft therein”. It was not necessary to

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allege in the information that the defendant either “burglariously” or “feloniously” entered the building with the intent to commit larceny or theft.

(People