Westwood

-The district attorney filed an against the defendant charging him with the of the crime of burglary. The defendant pleaded not guilty and a trial was had before the trial court sitting with a jury. The jury returned a verdict of guilty. The defendant made a motion for a new trial, also a motion in arrest of judgment. The motions were denied and the has appealed from the judgment and from the order denying him a new trial.

The defendant presents the point that the absolutely failed in its endeavor to prove that the entered the premises with the intent to commit larceny. A consideration of the point involves at least the following facts:

The defendant contends that in the charge of burglary intent is a necessary element. Thereupon he argues that the record contains no evidence to the effect that the defendant entered the premises 401 Mission Street with intent to steal, but that the evidence is such that the intent to steal may have been formed after the entry and that the offense, if anything, was petit larceny and not burglary. The defendant cites State v. Carroll, 13 Mont. 246 [ 33 Pac. 688 ]; State v. Moore, 12 N. H. 42, 48, 49; People v. Barry, 94 Cal. 481, 484 [ 29 Pac.…