O'Keefe

Appeal from the judgment and from an order denying defendant’s motion for a new trial.

[1] The information is in two counts. The first count charges that on or about the twenty-third day of December, 1920, the defendant unlawfully, feloniously, and burglariously entered a certain dwelling-house in the city of Taft, with the intention then and there to commit the crime of larceny. The second count charges a similar entry of the same house on or about the first day of January, 1921. The verdict of the jury, without particular designation of either count, found the defendant guilty of burglary in the first degree. The judgment, after reciting that the defendant was duly convicted of “the crime of felony, to wit, burglary in two counts,” ordered that the defendant be punished by imprisonment in the state prison of the state of California “for an indeterminate period for the crime of burglary in the first degree.”

Appellant contends that the verdict is defective in this, that it cannot be ascertained therefrom upon which of the counts the jury rendered its verdict, and that this is prejudicial to him for the reason that the verdict cannot pos sibly be supported on the second count.…