People v. Tolli

CASHIN, J.

The defendant was charged by an information filed in the superior court of the city and county of San Francisco with the crime of burglary. On the trial he was convicted of burglary in the first degree, and from the judgment entered an appeal was taken to this court.

The evidence shows that the defendant was apprehended in a hardware store in San Francisco while attempting to open a safe with an electric drill. Another safe in the same premises had been previously opened with a drill, and a money box removed therefrom, which was placed near the rear entrance to the store. It was further shown that the defendant was armed with a loaded revolver and that the door of the storeroom had been forced, a padlock thereon broken and the door lifted from the rolls sufficiently to effect an entrance into the building.

It is claimed that the trial court erred in giving and in its refusal to give certain instructions to the jury and that the judgment for this reason should be reversed.

Appellant complains that the following instruction was refused: “You are instructed that no larceny can be committed unless there is an asportation, that is, a taking and carrying away of personal property not the property of the defendant, and that there must also exist an

animus furandi.”

The court, however, gave the following instruction, which in every particular material to the issues covered that offered by the defendant: “You cannot convict the defendant of burglary unless you believe to a moral certainty and beyond a reasonable doubt that the defendant when he entered the premises described in the information intended to commit larceny.”

The court was also asked to instruct that “If the defendant formed an intent to commit larceny after he entered the premises or the building he cannot be convicted of burglary or of an attempt to commit burglary.” This

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instruction was also refused, but it was likewise sufficiently covered by two instructions given by the court which were as follows: “If the defendant went into the building and store in question merely to investigate or look about and not with any intent to steal, then you cannot convict the defendant of the offense charged,” and “You cannot convict the defendant of burglary unless you believe to a moral certainty and beyond a reasonable doubt that the defendant when he entered the premises described in the information intended to commit larceny.”