Bannister

Defendants were informed against and convicted of burglary. The crime consisted of entering a freight car of the Southern Pacific Company with intent to commit larceny. Defendant Bannister was sentenced to one year’s imprisonment in the state prison at San Quentin, and defendant Hawley to three years at the state reform school for juvenile offenders at Whittier. The appeal is from the judgment, and the cause comes up on the judgment-roll, there being no bill of exceptions. By their verdict the jury found the defendants “guilty as charged,” and recommended'them to the mercy of the court. The crime of burglary is by the Penal Code divided into two degrees. Burglary committed in the night-time is burglary of the first degree. Burglary committed in the daytime is burglary of the second degree. The judgments recite that the court, by its instructions before verdict, advised the jury that if they found the defendants guilty, they could not find them guilty of any higher offense than burglary in the second degree. The jury did not, however, by their verdict, specify the degree of burglary of which they found the defendants guilty. This was error. Section 1157 of the Penal Code provides…