People v. Nelson

Sharpstein, J.: The appellant was tried, convicted, and sentenced upon an information of which the following is a copy:

“ T. J. Hart, District-Attorney for said County of Colusa, State of California, here in open Court, by this information filed this 13th day of September, 1880, informs this Honorable Superior Court, that the crime of burglary was committed by Samuel Nelson, Charles Vickers, and James Herbert, as follows: The said Samuel Nelson, Charles Vickers, and James Herbert are hereby accused by the said District-Attorney of Colusa County of the crime of burglary, committed on the 25th day of August, 1880, at and in said County of Colusa, and State of California, unlawfully, feloniously, and burglariously, did forcibly enter the tent, room, and apartment of one G. W. Miller, with the intent, then and there to commit the crime of felony, contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the People of the State of California.”

This appeal is from the judgment and the order denying defendant’s motion for a new trial.

It is claimed on behalf of the appellant that the facts stated in the information do not constitute a public offense. If they do not, the judgment must be reversed.

The only question which arises upon this point is whether the information charges the defendant with the commission .of the crime of burglary. The Penal Code declares that [106]" every person who, in the nighttime, forcibly breaks and enters, or without force, enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is • guilty of burglary.” (Penal Code, 459.)

Is the charge in the information that the accused "unlawfully, feloniously, and burglariously did forcibly enter” the tent of the person named, “ with the intent then and there to commit the crime of felony’’ sufficient ? In other words, does it charge the commission of the crime burglary ?

There is no such distinctive crime as felony. There are several crimes, any one of which is a felony. These are all defined in the Penal Code. When it is said that a person has committed a felony, it is equivalent to saying that he has committed some one of several crimes. A charge that a person entered a house with the intent to commit a felony, would be supported by proof that he entered it with the intent to commit a burglary, because a burglary is a felony. But it probably never occurred to any one that a charge that a person had entered a house with the intent to commit the crime of burglary, would be sufficient, or that a conviction upon such a charge could be sustained.