Defendant appeals his conviction before a jury of attempted burglary, second degree.
Two questions are raised by this appeal: (1) Was the evidence sufficient tо establish the necessary element of intent, and (2) Were the instructions to the jury adequate to explain felonious behavior of defendant on the premises ?
The crime is alleged to have been committed on April 22, 1970. Complaining witness testified that a short time beforе that date, perhaps a week or so before, while working in her front yard she identified the defendant as driving by her house and staring at her intently. On April 20, two days before the attempted еntry, while working in the back yard she saw defendant lurking in the bushes bordering the yard of her home.
On April 22, 1970, at аbout 2:00 in the afternoon, the witness was taking a nap on the sofa in the family room. She was аwakened by the defendant attempting to open the sliding glass door to gain entry into the house. She ran to the bedroom and telephoned the sheriff and a neighbor. After telephoning, she saw the defendant standing in the desert about 500 yards from the house. The defendant told thе deputy that he was looking for ground squirrels. The defendant did not take the stand, but his wife testified that hе had gone out about 11:00 to look for ground squirrels.
A motion for a directed verdict on the grоunds of lack of proof of specific intent to commit burglary was made and denied.
Appellant-defendant relies heavily on the recent decision of this court in State v. Rood,
All of the surrounding facts in the case before us lead to the conclusion that the defendant must have intended to commit a felony if an entry had been accomplished. The driving by the house, the еntry into the yard on a prior date two days before the alleged crime, the attempt to force the lock on the sliding glass door, knife marks on the door, can only lead to one conclusion — attempted burglary by the accused. In Rood, the entry was not forced but through an open door. There
The thrust of appellant’s second question is that the trial court should have instructed the jury as to what constitutes a felony and a definition of the possible crimes that the defendant intended to commit if the entry had been successful. The trial court did instruct the jury as to the elements of burglary, defined burglary, and also told the jury:
“Unless sufficient intent to commit grand or petty theft or any felony so exists, that crime is not сommitted.”
In an attempted burglary case, where the entry is thwarted, it would be difficult or impossible, and. we think unnecessary, to define crimes which a defendant might have intended to commit if he had succeeded in making entry. Reliance is made upon the case of People v. Failla,
In the case before us, there being no entry but only an attempted entry, it would be impossible or highly impractical, for the trial judge to define crimes which a defendant may have intеnded to commit without any facts on which to predicate the definitions. If an entry had been made and certain acts had been committed, we think it proper under Failla for the court to define all acts if they amount to a misdemeanor, a theft, or a felony.
Furthermore, there is no request for the instruction, or objection to the court’s not giving, the instruction on what constitutes a felony and under the circumstances of the particular case bеfore us, we believe this constitutes a waiver of any claim and that there was no duty upon the court, sua sponte, to define felony under the circumstances of this case.
Judgment affirmed.