People v. Brittain
Before: Chipman
Synopsis
Criminal Law—Burglary—Entry in Store—Business Hours—Intent to Commit Larceny.—The entry in the crime of burglary need not of itself be a trespass; but the crime of burglary is made out where the evidence shows that the defendants entered a store in the night-time, during business hours, while it was open to the public, with the intent to commit larceny therein.
Id.—Cross-Examination of Defendant—Remark of District Attorney—Instruction of Court.—Where upon the cross-examination of one of the defendants an objection to a question by the district attorney was properly sustained as immaterial, a remark by the district attorney to the opposite counsel in an undertone, in the hearing of a juryman, “That’s getting on dangerous ground, isn’t it?” though uncalled for, was not prejudicial, where the court immediately told the jury to pay no attention to statements by the attorneys, and that the case was being tried only on the evidence.
Id.—Cross-Examination by Defendants—Harmless Ruling.—Conceding that an objection to a question by defendants’ counsel on cross-examination of the prosecuting witness should have been overruled, the defendants were not prejudiced, where the evidence showed that the particular fact testified to by the witness about which the question was asked was not within the knowledge of the witness, but was fully proved by other witnesses.
CHIPMAN, C.
Information charging defendants with the crime of burglary and a prior conviction of petit larceny. They were tried together, and found guilty. They appealed from the judgment of conviction and from the order denying their motion for a new trial.
The attorney-general makes the point that the appeal from the order cannot be considered, and that the only questions that can be reviewed arise on the appeal from the judgment as shown in the bill of, exceptions.
1. We are disposed to treat the motion for a new trial as properly before us, and so will determine the principal point raised by the appeal. The point is, that the evidence does not sustain the charge of burglary, and this rests upon a statement taken from the dissenting opinion in
People
v.
Barry,
94 Cal. 481,—namely, that “in order to constitute a burglarious entry, the act of entering must itself be a trespass-—an entry without the consent of the owner.” The evidence was sufficient to warrant the jury in finding that both defendants entered a certain store in Santa Bosa in the night-time with intent to commit larceny. The entry was, however, during business hours and while the store was open to the public. The precise question arose in
People
v.
Barry,
94 Cal. 481, and was fully discussed in the majority opinion. The statute reads: “Every person who
enters
any house, room, store, . . . with intent to commit grand or petit larceny, or any felony, is guilty of burglary.” Commenting upon this statute the court said: “As to the acts which shall constitute the crime of burglary, that is a matter left entirely to the policy of the legislature within its constitutional powers; and when that body has said that every person
who enters a store
with the
intent to
commit larceny is guilty of a burglary, the language is so plain and simple that rules of statutory construction are not required to be consulted; the meaning is patent upon the face of the statute. No words are found in the statute qualifying the character, kind, time, or manner of the entry, save
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