| Cal. | Jul 1, 1868
In refusing to charge the jury that the prosecution must prove that the burglary was committed at the precise hour alleged in the indictment, the Court below did not err. The
It was usual at common law to allege that the burglary was committed in the night time, at or about a certain hour, but it was not necessary that the evidence should conform strictly to the latter allegation. (2 East’s Pleas of the Crown, 513.) While there are cases to the contrary, we consider that it was not, at the common law, necessary to allege the hour, although it was usual to state it. (Wharton’s A. C. L., Secs. 270,1,612.) The general rule was that time was immaterial, and need not be alleged, unless it was of the essence of the offense. To constitute the offense of burglary, it was necessary that it should be committed in the night time, and, therefore, it must be so alleged; but it was hot necessary that it should be committed at any particular hour of the night, and, therefore, a particular hour need not be alleged. The only reason ever given, so far as we are advised, why the hour should be stated, was given by Mr. Justice Could, in Waddington’s Case. He said, that as the rule now established was that a burglary could not be committed during the twilight, it was, therefore, necessary to specify the hour in order that the act might appear upon the face of the indictment to have been done between the twilight of the evening and that of the morning. (2 East’s P. C. supra.) This reasoning is inconclusive. If it is necessary to allege the hour to show that the act was not committed in the evening or morning twilight, it must, by parity of reason, be necessary to allege the hour for the purpose of showing that it was not committed in the daytime.
But, be the common law rule what it may, we hold, under the practice in this State, that the hour need not be alleged, and, if alleged, need not be proved as laid. So far as time is of the essence of the offense, it must be both alleged and proved, but no further. If, to constitute burglary under the statute under which this indictment was found, it was neces
The point to the effect that the indictment charges two offenses—burglary and larceny—is without any foundation. No larceny is charged, but merely the intent to commit a larceny of certain goods, which are described. The indictment in Garnett’s Case, (29 Cal. 622" court="Cal." date_filed="1866-07-01" href="https://app.midpage.ai/document/people-v-garnett-5436007?utm_source=webapp" opinion_id="5436007">29 Cal. 622,) to which counsel have referred, in terms, charged both a burglary and a larceny. But were it otherwise, and did the indictment charge two distinct offenses, all objection to it on that ground was waived by a failure to demur. (Shotwell’s Case, 27 Cal. 394" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/people-v-shotwell-5435713?utm_source=webapp" opinion_id="5435713">27 Cal. 394.)
The objections to the form of the judgment are equally untenable. (People v. Hughes, 29 Cal. 257" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/people-v-hughes-5435936?utm_source=webapp" opinion_id="5435936">29 Cal. 257; Ex parte Gibson, 31 Cal. 619" court="Cal." date_filed="1867-07-01" href="https://app.midpage.ai/document/ex-parte-gibson-5436261?utm_source=webapp" opinion_id="5436261">31 Cal. 619.)
Judgment and order affirmed.
Mr. Justice Rhodes expressed no opinion.