People v. Bartley

[775]

TAGGART, J.

Information for burglary. Verdict of guilty and sentence of five years in the state prison. There is an appeal from the judgment and also from an order denying defendant’s petition for probation. The latter order rests entirely within the discretion of the trial court, and is not made appealable by the statute.

The information, after stating the name, place and date of the offense, charges that defendant did “willfully, unlawfully, feloniously and burglariously enter a building located at No. 15 East Haley street in the city of Santa Barbara, which said building then and there belonged to one Prank Loustalot, and was then and there used by the said Prank Loustalot as a saloon and barroom, with the intent then and there to commit the crime of larceny,” etc. In support of the demurrer to this information it is urged that it is insufficient, in that it nowhere alleges that the person charged was a competent person or one capable of committing a crime; and that the intent alleged by the information is the intent of the owner of the building and not the intent of the person charged with the offense. The first objection appears to be based upon the theory that the defendant having been characterized as “a boy” by some of the witnesses at the trial, the information should have contained some allegation negativing the inference that he lacked capacity to commit crime. Section 26 of the Penal Code says: “All persons are capable of committing crimes,

except”

certain enumerated classes, among which are: “1. Children under the age of fourteen,” etc. It is not necessary to negative this exception in the information any more than it is each of the other seven classes of persons mentioned, who, upon their want of capacity being shown, would be held not responsible for offenses committed by them. It is always presumed that a person intends the ordinary consequences of his voluntary act (Code Civ. Proc., sec. 1963), and upon the face of this information there is nothing to prevent the application of this presumption.

If the evidence could be considered in this connection, we would still be called upon to say that there is nothing in the record to show that the “boy” is a child under the age of fourteen years. His age does not appear, and while some witnesses speak of him as a boy, he is also mentioned as a