Clinton

Defendants were jointly informed against for the crime of burglary. They were jointly tried and convicted of burglary of the first degree. Appeal is taken from the judgment of conviction.

The information charged that the defendants “willfully and unlawfully did enter the store and room of Forsythe & Simpson in Burlingame, California, with the felonious intent then and there to commit the crime of larceny, all of which was then and there done by said defendants in the nighttime, contrary,” etc.

The main point of the defendants is that the judgment and verdict are void because defendants were charged with burglary of the second degree and were found guilty of •burglary of the first degree. We do not agree with this contention. Burglary is defined in sections 459 and 460 of the Penal Code. Section 459 provides that “Every person who enters any house, room, ... or other building, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” Section 460, as amended in 1923 (Stats. 1923, p. 747), provides that “1. Every burglary of an inhabited dwelling-house or building committed in the night-time, and every burglary, whether in the day-time or night-time,…