
    STATE, Respondent, v. LARSON, Appellant.
    (No. 5,825.)
    (Submitted January 11, 1926.
    Decided January 28, 1926.)
    [243 Pac. 566.]
    
      Criminal Law — Burglary — Evidence-— Sufficiency — Instructions — Inapplicability — Proper Refusal — Information — Presentment by Deputy County Attorney in Own Name not Prejudicial Error.
    
    Criminal Law — Deputy County Attorney may Present Information in Own Name.
    1. A deputy county attorney may present an information in his own name; henee the fact that an information was signed by him instead of by the county attorney did not render it invalid; at most his act, while perhaps improper from an ethical standpoint, was no more than an irregularity which could not aifeet appellant’s substantial rights and was therefore insufficient to warrant reversal of the judgment under section 11853, Revised Codes of 1921.
    Same — -Burglary—Evidence—Sufficiency.
    2. Evidence in a prosecution for burglary committed by entering a barn the opening into which was guarded by a canvas curtain instead of by a door, for the purpose of stealing parts of an automobile, examined and held sufficient to show an entry with intent to commit larceny.
    2. Breaking and entry as elements of burglary and evidence to support, see notes in 2 Am. St. Rep. 383; 139 Am. St. Rep. 1046.
    Opening screen door -or window as burglary, see note in 15 Ann. Cas. 932.
    Opening farther door or window partly open as burglary, see notes in 15 Ann. Cas. 929; Ann. Cas. 1916C, 320.
    
      Same — Instructions—When Refusal not Error.
    3. Refusal of an offered instruction covered by other paragraphs of the charge is not error.
    Same — Burglary—Felonious Entry — Refusal of Instruction as Inapplicable Held Proper.
    4. An instruction must be applicable to the case made by the evidence; therefore where defendant charged with burglary denied that he had entered the building in question at all, and the state’s ease tended to show a felonious entry, an instruction that if defendant’s intent at the time of entry was under the belief that he had a right to enter and obtain property therein to whieh he had a right, the verdict should be not guilty, was properly refused as not applicable.
    
       Indictments and Informations, 31 C. J., sec. 132, p. 625, n. 57; see. 160, p. 644, n. 18.
    
       Burglary, 9 C. J., see. 138, p. 1079, n. 53, 55; p. 1080, n. 581.
    
       Burglary, 9 C. J., sec. 151, p. 1088, n. 28. Criminal Law, 16 C. J., sec. 2506, p. 1063, n. 85.
    
       Burglary, 9 C. J., sec. 151, p. 1087, n. 26; p. 1088, n. 29. Criminal Law, 16 C. J., see. 2485, p. 1043, n. 35; p. 1045, n. 39.
    
      Appeal from District Court, Roosevelt County; 8. E. Paul, Judge.
    
    Mike Larson was convicted of burglary and appeals from the judgment and the order denying him a new trial.
    Affirmed.
    
      Mr. George E. Ericson, for Appellant, submitted a brief.
    
      Mr. D. A. Foot, Attorney General, Mr. A. H. Angstman, Assistant Attorney General, and Mr. Hugh N. Marrón, County Attorney of Roosevelt County, submitted a brief; Mr. Marrón argued the cause orally.
   MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The information herein recites that “Mike Larson is accused by the deputy county attorney of Roosevelt county, Montana, by this information of the crime of burglary,” etc., and it is signed, “Erick Mourn, Deputy County Attorney of Roosevelt County.” Defendant was convicted, and has appealed from the judgment and from an order denying him a new trial.

1. It is insisted that the deputy county attorney did not have authority to present an information in his own name, that he could act officially only in the name of his principal, and that the information in question is ineffectual for any purpose. The propriety of the deputy’s action might be subject to criticism from the standpoint of the ethics of his profession, but his authority so to act is hardly open to question from a legal standpoint.

Section 418, Revised Codes of 1921, provides: “Powers of Deputies. — In all cases not otherwise provided for, each deputy possesses the powers and may perform the duties attached by law to the office of his principal.”

In section 570, Meehem’s Public Offices and Officers, it is said: “Where a public officer is authorized to appoint a deputy, the authority of that deputy, unless otherwise limited, is commensurate with that of the officer himself, and, in the absence of any showing to the contrary, it will be presumed. Such a deputy is himself a public officer, known and recognized as such by law. Any act, therefore, which the officer himself might do, his general deputy may do also.” (See, also, State v. Crouch, 70 Mont. 551, 227 Pac. 818; State v. Riddell, 33 Wash. 324, 74 Pac. 477; Canada V. Territory, 12 Okl. 409, 72 Pac. 375.)

At most, the act of the deputy was a mere irregularity (State v. Wilkins, 118 Kan. 160, 234 Pac. 45), which could not affect any substantial right of the defendant, and section 11853, Revised Codes, declares: “No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.”

2. It is insisted that the evidence does not sustain the ver diet, and it is true that there is not any direct evidence of defendant’s guilt; but the state’s case does disclose that between' December 2 and December 7, 1923, an automobile tire — rim, casing and inner tube — and three chains were stolen from a car belonging to the prosecuting witness. Thorvald Johnson; that at the time Johnson discovered that his property had been taken he also discovered on the ground near his ear a letter addressed to the defendant. He procured a search-warrant to be issued, and accompanied the deputy sheriff in searching the defendant’s premises, where the stolen property, except the rim, was found. Johnson identified positively the easing, inner tube and one chain, and advanced a plausible reason for his identification. At the time the articles were taken they were on Johnson’s automobile, and the tire, used as an extra, was fastened to the rear of the ear by a clamp, and the car was in a building, a portion of which was used as a garage. The opening into the building was without a door shutter, but in lieu thereof a canvas curtain was attached above the doorway and extended nearly to the ground, covering the opening to such extent that a person could not enter the building without raising the curtain or moving it to one side. The letter addressed to the defendant was found inside the building and immediately behind the car, and the clamp which held the tire had been twisted to one side.

Section 11346, Revised Codes, defines burglary as follows: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, railroad ear, with intent to commit grand or petit larceny or any felony, is guilty of burglary,” and section 11349 declares: “The word ‘enter,’ as used in this chapter, includes the entrance of the offender into such house, room, apartment, tenement, shop, warehouse, stable, outhouse, or other building, tent, vessel, or railroad car, or the insertion therein of any part of his body, or of any instrument or weapon held in Ms band, or used or intended to be used, to threaten or intimidate tbe inmates, or to detach or remove tbe property.”

It is idle to argue that tbe circumstances disclosed by tbe evidence do not warrant a finding that defendant entered tbe building with tbe intention to commit larceny.

3. Error is predicated upon tbe refusal of tbe trial court to give defendant’s offered instructions 3 and 4. As 4 includes everything in 3 as well as other matters, it alone will be copied. It follows: “I further charge you, gentlemen of tbe jury, that before you can find tbe defendant guilty tbe state must establish by competent evidence to your satisfaction, beyond a reasonable doubt, every essential element of tbe crime of burglary, as that crime is defined in these instructions. One of tbe essential elements of the crime of burglary as charged in tbe information is that tbe defendant not only entered tbe barn, but that bis entry, if any, was with intent to steal something. If, therefore, tbe defendant’s intent at tbe time of entering tbe barn, if be did enter, was not to steal, but under tbe belief that be bad a right to enter and obtain some property to which be bad a right, or if you have any reasonable doubt as to what bis intent was, then it is your duty to find tbe defendant not guilty.”

Tbe first portion of tMs instruction was covered fully by other instructions given by tbe court.

Tbe court also instructed tbe jury to acquit tbe defendant unless it appeared from tbe evidence beyond a reasonable doubt that (1) be entered tbe building (2) “with tbe particular intent at tbe time to commit tbe crime of larceny.”

Tbe tendered instruction assumes that tbe defendant may have entered tbe building, but without any criminal intent, It is elementary that tbe instructions must be applicable to tbe case made by tbe evidence (Territory v. Rowand, 8 Mont. 110, 19 Pac. 595; State v. Trosper, 41 Mont. 442, 109 Pac. 858; State v. Smith, 57 Mont. 563, 190 Pac. 107), and since tbe state’s evidence tended to prove an entry with a criminal intent, and since defendant denied that he entered the building at all, the latter portion of the proposed instruction was altogether inapplicable, and the instruction itself was refused properly.

No error appearing, the judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Callaway and Associate Justices Galen, Stark and Matthews concur.  