People v. Myers

PRESTON, J.—

Defendant appeals from a judgment of conviction of the crime of burglary based upon a verdict of guilty returned upon undisputed evidence that he did, on January 6, 1928, with burglarious intent, enter the store of one Wahlforth at 124 North Main Street, Los Angeles, with the intent to steal, and did take and steal cutlery and other articles therefrom of the value of about $125.

The appeal assails only the information. It is claimed that it does not state an offense. This claim seems entirely without merit.

The charging part of the information is as follows: The said Frank A. Myers “ ... did wilfully, unlawfully -and feloniously and burglariously enter the store, room and building of one August Wahlforth, located at number 124 North Main Street, in the city of Los Angeles, county and state aforesaid, with the intent then and there and therein theft to commit the crime of larceny.” (Changes indicate amendment ordered by court.)

As originally filed, the word “larceny” appeared where the word “theft” is now found. The court, at the conclusion of the evidence, ordered this amendment made. This he deemed expedient because of the provisions of section 490a of the Penal Code, enacted in 1927 as part of a comprehensive plan to simplify procedure in criminal cases, which section reads as follows: “Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as" if the word ‘theft’ were substituted therefor.” (Stats. 1927, p. 1047.) Appellant, by general demurrer both before and after this amendment, and by objections frequently made and by motion for an advisory verdict of

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acquittal, urged that the information did not before or after amendment state a public offense. No special demurrer, however, was interposed at any time.

Section 459 of the Penal Code reads: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine, or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. ” This information as originally drafted was undoubtedly sufficient. While it has always been necessary to specify the crime intended to be committed