
    [No. 20430.
    In Bank.
    September 25, 1888.]
    THE PEOPLE, Respondent, v. CHARLES SWARBRICK, Appellant.
    Criminal Law—Burglary—Instruction. —An instruction characterizing the defense that 'a defendant accused of burglary was not one of the parties that entered the house, as a defense “attempted to be shown,” does not cast any slur or discredit on the defense, and is proper when the evidence is conflicting as to the matter of the defense.
    Appeal from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.
    The defendant was convicted of the crime of burglary, in entering a house with intent to commit larceny. There was a conflict in the evidence as to the identity of the defendant with one of the parties who entered the house. The further facts are stated in the opinion of the court.
    
      R. M. Fitzgerald, for Appellant.
    
      Attorney-General Johnson, for Respondent.
   Sharpstein, J.

The only question presented for our consideration by the record on this appeal is, whether the court erred in giving the following instruction to the jury:—

“The defense in this action is, as attempted to be showm by the defense, that the defendant was not one of the parties that entered the house, and that the complaining witness was mistaken as to the identity of the party whom she saw there. Now, that is a matter entirely with you. If the evidence does not satisfy you that he was in fact one of the parties that was in there, then of course you cannot find him guilty.”

Counsel for appellant insists that the court, by this instruction, “characterized the defendant’s defense as an attempted defense.” He did not characterize it as a futile defense, nor cast any slur or discredit upon it. He told the jury that the defense, as attempted to be shown, was, that the defendant was not one of the parties that entered the house. Whether that was shown, was for the jury to determine. In view of the conflicting evidence, it would have been error for the court to have instructed the jury that it had been shown that the defendant did not enter the house.

We discover no error in the record.

Judgment affirmed.

Searls, C. J., McFarland, J., Paterson, J., Thornton, J., and McKinstry, J., concurred.  