Jefferson

The indictment charged the commission of burglary, in that defendants did willfully, unlawfully, feloniously, and burglariously break and enter a certain railroad car, with the intent then and there to commit larceny, etc. To this indictment the defendants pleaded guilty.

The County Court proceeded to pronounce judgment without previously determining the degree of the crime of burglary of which the defendants were guilty.

Sec. 1192 of the Penal Code provides: “ Upon a plea of guilty of a crime distinguished or divided into degrees, the Court must, before passing sentence, determine the degree.”

Prior to the amendments to the Penal Code, which took effect May 1st, 1876, the entering a house, etc., in the night-time, with felonious intent, or with intent to commit petty larceny, and an entry with like intent in the day-time, were separate and distinct offenses; and a defendant indicted for the one offense could not be convicted of the other. “ Housebreaking,” as the latter offense was then named, was not included in burglary.

A familiar illustration of the cases in which a conviction may be had of any of the offenses charged in an indictment is the case of indictment for murder.…