Defendant appeals from a judgment of conviction had upon an information wherein he was charged specifically with the commission of the crime of burglary in the first degree.
The subject of the theft was a quantity of liquor, consisting of wine and whisky contained in bottles and demijohns, taken from the wine cellar, the door of which was locked, which cellar was situated in the basement of a residence owned by Mr. Gould, entry to which was had by the breaking of a window and the lock on the door of the wine cellar.
[1] One of the essential elements of the crime charged is that it was committed in the night-time, which, in this case, was the time between the hour of sunset at 4:54 P. M. on December 2d, and the hour of sunrise at 6:46 A. M. on December 3d.
Evidence of statements made by the defendant wherein he admitted his participation in the crime, which, he stated, was committed between 10 and 11 o'clock P. M. on the night of December 2d, was received over defendant's objection, *Page 226 and this ruling is assigned as error. His contention is that the reception thereof was not preceded by proof of thecorpus delicti, namely, that the crime was committed in the night-time, and without which the evidence was not admissible. (People v. Vertrees, 169 Cal. 404, [146 P. 890]; People v.Tapia, 131 Cal. 651, [63 P. 1001]; Gray v.Commonwealth, 101 Pa. St. 380, [47 Am. Rep. 733].) Conceding that it devolved upon the People to show by independent evidence and beyond a reasonable doubt that the specific crime charged was committed (People v. Smith, 136 Cal. 207, [68 P. 702]), as a condition of admitting the confession in evidence, we think such fact was established. It was made to appear by testimony of the caretaker of the place, who lived in a house about one hundred yards from the Gould residence, that the crime was committed between the hours of 8 o'clock P. M., December 2d, and shortly before 8 o'clock A. M., December 3d, at which latter time he discovered the broken window to the basement, together with the fact of the theft, and following tracks leading from the window he found in a hedge of trees a number of bottles containing liquor, which bottles were similar to those contained in the cellar. On the night of December 3d the sheriff stationed himself near the cached liquor, and about 10:30 o'clock defendant appeared with a sack under his coat, when he was arrested. It also appeared from the testimony of another witness that between 10 and 11 o'clock on the night of December 2d the defendant, accompanied by another party, came to his house and left some demijohns of whisky, which demijohns were identified as being similar to those which the caretaker had assisted in taking to the basement of the residence; in addition to which the caretaker testified in direct terms that the entry was made and the goods taken between sunset and sunrise; and conceding that his evidence upon this point was shaken by his testimony on cross-examination to the effect that he was not out of his house, some hundred yards from the residence so entered, between the hours of 8 o'clock P. M. and 8 o'clock A. M. on said days, and there was an interval of an hour and a quarter of daylight, nevertheless, we think the evidence and the inferences fairly deducible therefrom were sufficient to establish beyond a reasonable doubt that the offense was committed as charged. (People v. Stevens, *Page 227 68 Cal. 113, [8 P. 712]; People v. Schafer, 161 Cal. 573, [119 P. 920].) This being true, it follows that the court did not err in admitting the evidence of defendant's confession, which, if true, shows conclusively that he was guilty of the commission of the crime.
[2] In defining burglary, the court, in its instruction, used the language of section 459 of the Penal Code, that "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine, or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. " Appellant argues that by this instruction notwithstanding the charge in the information was that of entering the house with the intent to commit larceny only, the jury was authorized to convict defendant if they found he had entered the house with the intent to commit any felony, and hence it was error. (People v. Mulkey, 65 Cal. 501, [4 P. 507]; People v. Young, 65 Cal. 225, [3 P. 813];Williams v. State, 53 Tex. Civ. App. 2, [108 S.W. 371].) Conceding this to be true, nevertheless, for the reason that no evidence other than that pertaining to the offense charged was offered, defendant could not have been prejudiced by reason of the error.
The court instructed the jury that "the information charges burglary in the first degree, and before you can convict the defendant you must be satisfied from the evidence to a moral certainty and beyond a reasonable doubt that he is guilty as charged in the information, to wit, of burglary in the first degree, committed at the place charged in the information and between sunset on December 2, 1919, and sunrise on December 3, 1919. You cannot in this case render a verdict of burglary in the second degree." It would be difficult to conceive of an instruction prepared with greater care, and having for its purpose the protection of defendant's rights, than the one quoted; and it is impossible to understand, even in the light of appellant's argument, any ground whatsoever for the attack thereon.
Other alleged errors predicated upon rulings of the court in permitting the district attorney, over defendant's objection, to ask leading questions of one witness, and its rulings in admitting hearsay testimony as to ownership of the house where the crime was committed, and also error predicated *Page 228 upon assignments of misconduct of the district attorney in his argument of the case to the jury, are not of sufficient merit to warrant consideration.
As a whole, the character of the evidence presented by the record is such that the jury could not properly have reached a verdict other than that rendered, and no errors are shown which could possibly have resulted in a miscarriage of justice. (Sec. 4 1/2, art. VI, Const.)
The judgment is affirmed.
Conrey, P. J., and James, J., concurred.