In Re Howe

VAN DYKE, P. J.

Petitioner was informed against on a charge that he had been guilty of violating section 459 of the Penal Code, burglary, in that he had entered a house or dwelling with the intent therein to commit theft. He was tried before the court, a jury having been waived. After the evidence had been received the court took the matter under submission and filed in the cause a document entitled “Memorandum Decision.” Therein it was declared that the proof against the petitioner did not justify the court in holding that petitioner had entered the building wrongfully or with any intention to commit theft therein. No formal judgment was entered acquitting petitioner of the charge of burglary, but in view of what the trial court stated above and in view of the further action of the trial court, we think it clear that in legal effect petitioner was acquitted of the charge of burglary. In the filed memorandum of decision the trial court further declared:

“It appears, however, that the defendant did ‘go along’ with Hendrix [a co-defendant] after he learned that Hendrix had committed theft. The ‘theft’ committed was obviously petty theft. Defendant did not report the theft after he had learned of it; he did nothing to discourage the irresponsible minor from carrying out the theft. He must -be held to be guilty of the included offense of petty theft.”

It thus appears that, having been charged with the crime of burglary, having been tried upon that charge, and having been acquitted thereof, he was by the trial court adjudged guilty of petty theft. This charge had never been made against him; he had never been called upon to plead to it; and had not been tried upon it. It is apparent that the trial court purported to find petitioner guilty of petty theft in the belief that it was an included offense. Such, however, is not the law.

(People

v.

Garnett,

29 Cal. 622;

People

v.

Devlin,

143 Cal. 128 [76 P. 900];

People

v.

Curtis,

76 Cal. 57 [17 P. 941] ;

People