I dissent from the conclusion and order that the judgment be reversed. The essentials of the burglary charged were that the defendant entered the house described with intent to commit larceny therein. To show an entry with such intent would make a complete case under the statute. The statute contains no words qualifying the character or nature of the entry, except that it must be made with a certain intent. No other question of the lawfulness of the entry is involved. It is held in California that it is immaterial that the act of entering is not of itself a trespass. People v. Brittain, 142 Cal. 8, 75 P. 314, 100 Am. St. Rep. 95.
But here the only claim made was that the entry was innocent, because the accused believed he had a right to take the whisky. The court by instruction No. 10 expressly directed the jury that, if such was the case, the accused was not guilty. The accused admitted entering the basement to *Page 398 get the whisky, and made no other claim to justify his entry. The only question, therefore, was whether he entered with intent to steal the whisky or to purchase it. The instructions given fully covered this subject, which was the only real question of fact in the case. Under the evidence the jury was bound to find that the entry was with felonious intent or not, according to what they concluded was the belief of the accused respecting his right to the whisky. Beyond this there was no question of the lawfulness of the entry. The instructions given very clearly submitted the case upon the theory of the accused, and the judgment should be affirmed.