Majority
p. 501[No. 10,952. Department One. August 18, 1884.] THE PEOPLE, Respondent, v. FRANK MULKEY, Appellant.
Headnote
OuTunwAt. Law—Bübglaby—Larceny—Dístbvcitons.—Where a defendant is charged with the crime of feloniously entering a dwelling-house with intent to commit larceny, it is error for the court to instruct the jury that they should find him guilty if they believed from the evidence that defendant entered the house with intent to commit larceny or any felony. The crime must be proved as charged.Appeal from a' judgment of the Superior Court of Fresno County, and from an order refusing a new trial.
The facts appear in the opinion of the court.
M. V. Ashbrook, for Appellant.
Attorney-General Marshall, for Respondent.
The defendant was charged by information with the crime of feloniously entering a certain dwelling-house with intent to commit larceny. The court below instructed the jury that if they believed from the evidence that the defendant entered the house with the intent to commit grand or petit larceny or any felony, they should find him guilty.
This instruction Was clearly erroneous. There is nothing better settled than that the crime charged must be proved before a conviction can be had.
Judgment and order reversed and cause remanded for a new trial.
McKinstry, J., and McKee, J., concurred.