Crowley

The appellant was informed and convicted of the crime of an attempt to commit burglary, and he appeals from the judgment and from an order denying a new trial. There are only two points made by appellant which need special notice—. which points, by the way, are not discussed in the brief of respondent.

1. The charge is that appellant feloniously attempted to enter the house of one Patrick Kenny with intent to commit larceny, and it is contended that the court erroneously refused to give an instruction to the jury to the effect that if he attempted to enter the. house forcibly, with the intention “ of forcibly taking personal property from the immediate presence or possession of said Patrick Kenny, and against his will, and by means of force or fear,” then he could not be convicted of the crime charged in the information. We do not think that the court erred in this ruling. A charge that the attempted entry was with intent to commit a certain offense would not be sustained by proof of an intent to commit an entirely different sort of offense, as, for instance, the charge of intent to commit larceny would not be sustained by proof of an intent to commit rape. But larceny and…