Summary
In People v. Mulkey, 65 Cal. 501 [4 P. 507], it is said: "The defendant was charged by information with the crime of feloniously entering a certain dwelling-house with intent to commit larceny.
Summary of this case from People v. ConnorsOpinion
APPEAL from a judgment of the Superior Court of Fresno County, and from an order refusing a new trial.
COUNSEL:
M. V. Ashbrook, for Appellant.
Attorney-General Marshall, for Respondent.
OPINION
ROSS, Judge
The facts appear in the opinion of the court.
The defendant was charged by information with the crime of feloniously entering a certain dwelling-house with intent to commit larceny. The court below instructed the jury that if they believed from the evidence that the defendant entered the house with the intent to commit grand or petit larceny or any felony, they should find him guilty.
This instruction was clearly erroneous. There is nothing better settled than that the crime charged must be proved before a conviction can be had.
Judgment and order reversed and cause remanded for a new trial.
McKINSTRY, J., and McKEE, J., concurred.