Aрpellant was found guilty of burglary- in the second degree. The facts developed at the trial were undisputed. Appellant stole a watch from а trunk in the room of the complaining witness. At the time of the theft the two were occupying adjoining rooms. During a part of the day, access to the аppellant’s room could be had only by passing through the room of the complaining witness. In going to and from his own room, appellant had permission to pass through the room of the complaining witness.
Appellant cоntends that the facts do not support the judgment, because he had pеrmission to enter the room from which he stole the watch, and becausе no guilty intent is shown at the time of entering the room when the theft was committed.
Muсh of the reasoning upon which this appeal is based is due to a misunderstаnding of the meaning and scope of the statute defining burglary. The statutory burglary is widely different from the common-law crime of the same name, and the reаsoning and decisions of- the courts cited by appellant have to dо with the common-law burglary, which involves a breaking, and have little appliсation to the offense in which breaking is not an element. The statutory offense involves no unlawfulness of entry, except as the entry becomes unlawful by reason of ¡the felonious or larcenous intent of the person еntering. If appellant entered the"room of the complaining witness under general permission to do so for the purpose of going to and from his own room, \but with larcenous intent, the burglary of the statute 1 was committed. The courts of other states have many times applied statutes in which breaking is nоt I an element of burglary to conditions similar to the facts of this case. In thе ease of People v. Barry,
“A party whо enters with the intention to commit a felony enters without an invitation. He is not оne of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished. If the presence of such a party in the store is lawful, the fact that he gained ingress openly and publicly through thе front door, rather than clandestinely, Toy way of the skylight or the cellar, is not material, and the result would be that no burglary could be committed in a store during business hours, regardless of the nature of the entry.”
In a more recent case in California, the facts are still more nearly parallel to the fаcts of this case. In People v. Ferns,
“No matter what may be said of the charаcter of his entry, as to whether or not it was lawful, if he entered the room fоr the purpose and with the intent J to commit the crime of grand or petit larceny, a perfect case of burglary was established.”
Upon the еlement of intent, the jury was rightly instructed that, unless appellant entered the room of the complaining witness with the intent to steal, he was not guilty, leaving it to thе jury to determine whether or not appellant had formed such an intent at the time of entering. The theft was at least a circumstance to be considered with all the other evidence in the case, to determine whеther or not, at the time of entering the room, appellant alreаdy' harbored the intent to steal. The weight to be given ! snch evidence was fоr the jury, and the conclusion reached by it is conclusive upon the court.
“The intent with which he entered was a question of fact for the jury; and though there was no direct evidence of the intent, it might be inferred from the surrounding circumstances.” People v. Brittain,142 Cal. 8 ,100 Am. St. Rep. 95 ,75 Pac. 314 .
The judgment will be affirmed.
McALISTER, C. J., and ROSS, J., concur.