The defendant was prosecuted by information in the Superior Court of Alameda County, and was found guilty of the crime of burglary in the second degree. Two points are made on this appeal, the first being that the evidence was not sufficient to justify the verdict of the jury, and the second, error of law in the charge of the Court.
Section 459 of the Penal Code defines generally the crime of burglary, and Section 460 of the same Code, declares that any burglary committed in the night-time is burglary of the first degree, and any burglary committed in the daytime, is burglary of the second degree.
It is claimed, on behalf of the defendant, that all of the evidence in the case shows that the stable from which the horses were stolen was entered in the night-time, and, therefore, the crime constituted burglary in the first degree. The information simply charges the commission of the crime of burglary, and does not state whether the act was committed in the night-time or the daytime. It therefore embraced both degrees of burglary, and under such an information, it was competent for the jury to find the defendant guilty of the crime in either degree. It. was so held by the Court in the case of the People v. Jefferson, 52 Cal. 452; and it is there stated that “ it was the purpose of the Legislature to authorize the jury or Court, to determine the degree, as the evidence might show that the entry was in the day or night*384time. Beading the sections of the statute together, it seems plain that it was the intention, to provide for a crime which is styled ‘burglary,’ and which consists of an entry with intent to commit a felony or petty larceny, either in the night or daytime. This crime is divided into two degrees—an entry with such intent in the night-time, and an entry with like intent in the daytime, while the duty of determining from the evidence whether the offense is burglary in the first or second degree, is imposed on the Court or jury, as the plea may be ‘guilty ’ or ‘not guilty.’ Inasmuch as the indictment to cover both degrees must not specify that the entry was either by day or night, it follows that the averment must be general, without such specification, and such averment must be construed as charging an entry both in the night and daytime. Thus construed, whether the Court or jury find the defendant guilty of burglary in the first or second degree, he will be found guilty of an offense charged in the indictment.”
By Section 1157 of the Penal Code it is provided that, “whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.” It was therefore the duty of the jury to determine the degree of defendant’s guilt, and it may be conceded that the evidence in the case would have justified a verdict of guilty of burglary in the first, instead of the second degree; but it does not follow therefrom that the verdict found was not supported by the evidence, or that the same should be set aside.
But it is a sufficient answer to the objection taken on behalf of the defendant, to say that he is not prejudiced by the error complained of. If the jury erred, the error was on the side of the defendant, and he can not be permitted to urge in this Court, as a reason for the reversal of the judgment in the Court below, that the determination there was more favorable to him than the evidence warranted. By Section 1404 of the Penal Code it is provided that no error or mistake in the proceeding renders it invalid, unless such error or mistake has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right. “ The substantial rights of the defendant must have been injuriously affected *385by the error complained of to warrant our interference.” (People v. Brotherton, 47 Cal. 404.)
The second point involved in this appeal relates to the charge of the Court to the jury. The Court below gave the law to the jury very clearly and correctly, and we find nothing in the charge that subjects it to legal criticism.
Judgment and order affirmed,
McKinstry and Boss, JJ., concurred.