89 P. 61 | Mont. | 1907
delivered the opinion of the court.
The defendant, having been charged by information with the crime of burglary in the first degree—that is, in the nighttime— was found guilty of burglary in the second degree, or burglary in the daytime. The court pronounced judgment upon the verdict accordingly. From this judgment he has appealed, and insists that it cannot be sustained, for the reason that he has been convicted of an offense with which he is not charged.
The sections of the Penal Code defining burglary and providing its punishment are the following:
“Sec. 820. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car with intent to commit grand or petit larceny or any felony is guilty of burglary.
“Sec. 821. Every burglary committed in the nighttime is burglary in the first degree and every burglary in the daytime is burglary in the second degree.
“Sec. 822. Burglary in the first degree is punishable by imprisonment in the state prison for not less than one nor more than fifteen years. Burglary in the second degree is punishable by imprisonment in the state prison for not more than five years.”
Section 824 defines the phrase “nighttime” as meaning the period of time between sunset and sunrise. At the common law the essential elements of this crime were (1) a break
An information following the language of the statute was held good by this court in State v. Green, 15 Mont. 424, 39 Pac. 322. While this case is not directly in point, it is in principle sustained by the courts of other states having similar statutes, and the following eases are directly in point: Schwabacher v. People, 165 Ill. 618, 46 N. E. 809; Bruen v. People, 206 Ill. 417, 69 N. E. 24; People v. Jefferson, 52 Cal. 452; People v. Barnhart, 59 Cal. 381; People v. Smith, 136 Cal. 207, 68 Pac. 702. Manifestly the pleader is not required to allege more than is necessary to meet the requirements of the statute.
Sections 821 and 822 distinguish the crime into two degrees, and impose different punishments; but the degree of the offense is a matter of proof, and is for the jury to determine under-proper instructions, as is provided in section 2145 of the Penal Code. (See cases cited.) But when the pleader, as in this-case, makes the specific charge of a burglary in the nighttime, he unnecessarily narrows the scope of the inquiry, but he must be held to proof of the charge as made; for, though the crime is-distinguished into degrees, and the jury may convict the defendant of any offense necessarily included in that with which he is-charged (Pen. Code, sec. 2147), it is obvious that a charge of burglary committed in the nighttime does not include a charge
The case of State v. Jordan, 87 Iowa, 86, 54 N. W. 63, cited by the attorney general, is not in point. In that case the court under a similar statute sustained a conviction of burglary in the second degree, though the charge alleged burglary in the first degree. Upon examination of the reason given by the court, however, it appears that this was done under a section of the Code which declared that, “upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree' inferior thereto, or of an attempt to commit the offense, if punishable by indictment.” The corresponding section of our Code, supra, is different in substance, because it limits the conviction in such cases to such inferior crimes as are necessarily included in that with which the defendant is charged. One crime may be inferior to another, as are the degrees in burglary, while yet the higher degree does not include the inferior, as we have already pointed out. The following cases are instructive, and are all more or less' in point upon the question here in
In this case the defendant was charged with one crime and convicted of another. The judgment must therefore be reversed ; and it is accordingly so ordered.
Reversed.