Appellant was convicted of the crime of burglary in the first degree for his allеged aid as a lookout in the burglarizing of a poolroom in Minidoka.
It is urged that thе information was defective, that the evidence is insufficient to sustain the verdict, and that the court erred in its instructions to the jury.
The information did not set out the ownership of the pool-hall nor allege that it was the property of one other than the appellant. The only reasons for requiring such allegatiоns are to permit greater certainty in the identification of the building entered and to show that the building entered was entered wrongfully.
(State v. Wilson,
*340
36 S. D. 416,
The stаtute, in effect, defines burglary as an entry with the intent of committing grand or petit larсeny or a felony. (C. S., sec. 8400.) The information following, in substance, the statute was suffiсient.
(State v. George,
It appears from the record that the alleged burglary took place during business hours, while the poolroom was open to the public, and thаt the entry was made through the front door which the general public had been invitеd to use. With reference to these facts, appellant urges that the еvidence is insufficient to sustain the verdict in that it does not appear that аn unlawful entry was made.
An invitation to enter for a lawful purpose is not an invitatiоn to enter for an unlawful purpose. In
McCreary v. State,
“A party who 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 rеfused admission at the threshold, or ejected from the premises after the еntry was accomplished.”
In the later case of
People v. Descheneau,
“One may, during business hours when a store is open to the рublic, enter therein with a view to purchasing goods, and if, after he enters, he concludes to steal, such act would constitute larceny only; but if when he entеred he intended *341 to commit larceny, his act, under the statute of this state, cоnstitutes burglary, even though the proprietor of the store, having .knowledge of his рurpose in entering, does nothing to prevent it.”
This position was reiterated in
People v. Brittain,
The evidence discloses thаt appellant did not himself enter the building but it is contended by respondent that, while remaining outside, he was acting in the capacity of a lookout. Distinctions bеtween accessories before the fact and principals in the first аnd second degrees have been abolished in this state. (C. S., sec. 8845.) Therefore, if the building was entered with the intention of committing larceny in furtherance of a сommon purpose to which appellant was a party, even though hе himself made no entry, he would be guilty as a principal. (C. S., sec. 8093.)
The question of the intent with which the building was entered was one for the jury.
(State v. Dwyer,
Appellant urges that want of consent to the taking of the property by its owner, Daugherty, was not shown. In some jurisdictions it is apparently the rule that where the owner of the property is available, he must testify specifically that the taking was without his consent. We think the bеtter rule to be, however, that this want of consent can be shown by other cirсumstances which, as in this case, clearly establish that the taking was without the cоnsent of the owner.
(People v. Walton,
Appellant urges that the court erred in instructing the jury to the effect that the intent to commit larceny, which must be established as an essentiаl element of the *342 offense, might be inferred from an unlawful entry followed by larceny.
There was no error in this instruction. Pr.oof of the actual commission of larceny is competent evidence of the criminal intent at the time of the еntry.
(Howard v. People,
It is urged that the evidence is insufficient to sustain the verdict of guilty. A careful examination of the record discloses that, though conflicting, there is sufficient evidence to support the verdict.
(Chapman v. Rivas,
The judgment is affirmed.