People v. Mendoza

SHAW, J.

Defendant was prosecuted under an information charging him with the crime of burglary, and upon trial was found guilty in the first degree of the offense charged. As grounds for reversal of the judgment he presents three assignments of error.

The information charged defendant with entering a tool-house of the city of Los Angeles, situated at Lemoyne street and Marcom avenue in said city. At the request of defendant the court instructed the jury that in order to convict defendant it was incumbent upon the prosecution to prove, among other things, that the house alleged to have been feloniously entered was the property of the city of Los Angeles as alleged in the information. The ownership of the building was immaterial, except for the purpose of affording a means of its identification. This was done by alleging it to be a tool-house located at Lemoyne street and Marcom avenue in the city of Los Angeles. In the absence of proof that there was more than one such building so located, such description was sufficient, and fully apprised defendant of the house he was charged with feloniously entering; hence, the allegation of ownership was surplusage.

(People

v.

Price,

143 Cal. 352, [77 Pac. 73];

People

v.

Bitancourt,

74 Cal. 190, [15 Pac.

744]; People

v.

White,

116 Cal. 17, [47 Pac. 771].) Conceding, however, that by reason of the instruction given it was necessary to prove ownership in the city of Los Angeles, the uncontradicted testimony of witness Neisse was, we think, sufficient to establish such fact. His evidence was to the effect that he was foreman of the city waterworks and as such foreman was engaged with others working under him in constructing a water-tank; and while so engaged in

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