People v. Crowley

McFarland, J. The appellant was informed and convicted of the crime of an attempt to commit burglary, and he appeals from the judgment and from an order denying a new trial. There are only two points made by appellant which need special notice—. which points, by the way, are not discussed in the brief of respondent.

1. The charge is that appellant feloniously attempted to enter the house of one Patrick Kenny with intent to commit larceny, and it is contended that the court erroneously refused to give an instruction to the jury to the effect that if he attempted to enter the. house forcibly, with the intention “ of forcibly taking personal property from the immediate presence or possession of said Patrick Kenny, and against his will, and by means of force or fear,” then he could not be convicted of the crime charged in the information. We do not think that the court erred in this ruling. A charge that the attempted entry was with intent to commit a certain offense would not be sustained by proof of an intent to commit an entirely different sort of offense, as, for instance, the charge of intent to commit larceny would not be sustained by proof of an intent to commit rape. But larceny and robbery are generically the same—the one being merely an aggravated form of the other. Each is the felonious taking of the personal property of another, although in robbery the felonious taking is accomplished by force or threats. The text-books speak of robbery as “an aggravated species of larceny.” (2 Russell on [480]Crimes, 101.) In East’s Pleas of the Crown, the author, after speaking of certain larcenies from the person, says: “ The next species of aggravated larceny from the person is robbery”; and indeed the distinction between certain larcenies from the person and robbery is often hard to draw. It has been held here that robbery necessarily includes larceny, and that under an indictment for the former there may be a conviction of the latter. (People v. Jones, 53 Cal. 58; People v. Gilbert, 60 Cal. 111.) In People v. Jones, 53 Cal. 58, the court say that “an indictment for robbery must aver every fact necessary to constitute larceny and more.” This being so, if the appellant had the intent to commit robbery, that intent included all the elements of an attempt to commit larceny, The information in the case at bar therefore sufficiently complies with the reason of the rule that a defendant must be informed of the charge against him. We have been referred to no case to the contrary.

2. The information charges that appellant had been previously convicted of a felony, and by his plea appellant confessed the prior conviction. While on the stand as a witness for himself the appellant testified to some things which occurred on the night of the alleged burglary, and, on cross-examination, he was asked by counsel for the prosecution if he had not been previously convicted of a felony. Appellant objected to the question, and his objection was overruled, and he contends that this ruling was erroneous.