Odenwald

denying the petition for a hearing in this court after decision by the District Court of Appeal we do so with the realization that the judgment herein is contrary to and, in effect, overrules the case of People v. Spencer, 54 Cal. App. 54 [ 201 Pac. 130 ], We are satisfied with the reasoning and conclusions of the District Court of Appeal in the present ease and pronounce it a correct declaration of the law. We, therefore, deem it unnecessary to grant the petition herein merely for the purpose of enter *212 ing a like judgment in this court based on the same reasoning and conclusions.

The petition for a hearing is denied.

All the Justices concurred.

The appellants were convicted of the offense of burglary. They prosecute this appeal from the judgment. But two reasons are assigned for a reversal and they are: (1) That the proof shows ° that the property which the appellants intended to steal consisted of intoxicating liquors possessed contrary to the National Prohibition Act [27 U. S. C. A.] and Wright Act [Stats. 1921, p. 79] of this state, and therefore not the subject of larceny, and (2) that there is a fatal variance between the allegations of the information and the proof in this: That the information charged the appellants with entering the garage of one Jeanette Chaff en “with the intent then and there and therein to feloniously and unlawfully steal, take and carry away the goods and personal property of the said Jeanette Chaffen” whereas the proof failed to show that Jeanette Chaffen was the owner of the property intended to be appropriated.

To sustain their first contention counsel for appellants rely upon the authority of People v. Spencer, 54 Cal. App. 54 [ 201 Pac. 130 ], The testimony establishes that the *205 liquor was unlawfully possessed and therefore the instant cause is brought squarely within the doctrine…

The appellants were convicted of the offense of burglary. They prosecute this appeal from the judgment. But two reasons are assigned for a reversal and they are: (1) That the proof shows that the property which the appellants intended to steal consisted of intoxicating liquors possessed contrary to the National Prohibition Act [27 U.S.C.A.] and Wright Act [Stats. 1921, p. 79] of this state, and therefore not the subject of larceny, and (2) that there is a fatal variance between the allegations of the information and the proof in this: That the information charged the appellants with entering the garage of one Jeanette Chaffen "with the intent then and there and therein to feloniously and unlawfully steal, take and carry away the goods and personal property of the said Jeanette Chaffen" whereas the proof failed to show that Jeanette Chaffen was the owner of the property intended to be appropriated. [1] To sustain their first contention counsel for appellants rely upon the authority of People v. Spencer, 54 Cal.App. 54 [ 201 P. 130 ]. The testimony establishes that the *Page 205 liquor was unlawfully possessed and therefore the instant cause is brought squarely within the doctrine…