People v. Barry

Garoutte, J. The appellant was convicted of the crime of burglary, and appeals to this court from the judgment and order denying his motion for a new trial.

The most important assignment of error relied upon to reverse the judgment may be reviewed by a consideration of a certain instruction which was requested to be given to the jury by appellant,, and which request was refused by the court. The proposed instruction was based upon the evidence, which disclosed that the offense of burglary was committed,, if committed at [482]all, by appellant entering a grocery store during business hours, and attempting to commit larceny therein. The instruction is as follows: “ The defendant cannot be convicted of the crime if he had a right to enter the store of Murry & Seegelkin at the time alleged in the information, even if you believe from the evidence that at the time he entered he intended to commit larceny.” Viewed in the light of section 459 of the Penal Code, which says: “ Every person who enters any house, room, store, .... with intent to commit grand or petit larceny, or any felony, is guilty of burglary,”—the ruling of the court is correct. This section of the code is clear and concise, and its meaning obvious. By its express terms, the offense is perfect and complete when the entry is made with the intent to commit grand or petit larceny, or any felony.

At common law, burglary was defined to be “ a breaking and entering of the mansion-house of another in the night, with the intent to commit some felony within the same, whether such felonious intent be executed or not.” (Russell on Crimes, 785.)

It will thus be seen that common-law burglary and the statutory burglary of this state have but few elements in common, and consequently English cases give us but little light upon the question under examination. Even under the present section of the Penal Code many acts constitute burglary which but a few years ago were a different offense, or no offense whatever. 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 that such entry must be accompanied with a certain intent; and it