People v. Jefferson

By the Court: The indictment charged the commission of burglary, in that defendants did willfully, unlawfully, feloniously, and burglariously break and enter a certain railroad car, with the intent then and there to commit larceny, etc. To this indictment the defendants pleaded guilty.

The County Court proceeded to pronounce judgment without previously determining the degree of the crime of burglary of which the defendants were guilty.

Sec. 1192 of the Penal Code provides: “ Upon a plea of guilty of a crime distinguished or divided into degrees, the Court must, before passing sentence, determine the degree.”

Prior to the amendments to the Penal Code, which took effect May 1st, 1876, the entering a house, etc., in the night-time, with felonious intent, or with intent to commit petty larceny, and an entry with like intent in the day-time, were separate and distinct offenses; and a defendant indicted for the one offense could not be convicted of the other. “ Housebreaking,” as the latter offense was then named, was not included in burglary.

A familiar illustration of the cases in which a conviction may be had of any of the offenses charged in an indictment is the case of indictment for murder. There, omitting the averment of malice, an unlawful and felonious killing is charged, and the verdict may properly be guilty of manslaughter. And inasmuch as the averment of “ malice aforethought ” includes both express malice (or the intent to kill affirmatively proved) and implied malice—which may be presumed from the killing—the defendant may be found guilty of murder in the first or second degree.

As was said in People v. Hann, 44 Cal. 96, and reiterated in People v. Doyell, 48 Cal. 85, the term “ murder ” has but one meaning—the killing of a human being with malice aforethought, either express or implied. Where such killing with malice aforethought is alleged, there is an averment of all the facts which constitute each of the offenses, murder in the first degree, in the second degree, and manslaughter.

But while a defendant indicted for one crime may be con[454]victed of a less offense also charged in the indictment, lie cannot be convicted of an offense not charged in the indictment, (actually, or by construction created by the legislative will) and which consists of an additional element of circumstance not averred in the indictment. Prior to the amendments referred to, an indictment charging an entry in the night-time could not be construed as averring an entry in the day-time; and as there was no allegation of an entry in the day-time, a defendant accused of “ burglary ” could not be convicted of “ housebreaking.”