Davis

—Defendant was charged with a violation of Penal Code, section 459 (burglary); a prior burglary conviction was alleged against defendant. A plea of “not guilty” was entered.

Defendant’s petition for writ of habeas corpus was denied. Jury trial was waived, and by stipulation of all counsel the case was submitted on the preliminary hearing, subject to an offer of additional evidence by either party. Defendant was found guilty of burglary in the second degree. A probation report was ordered. Defendant’s motion for a new trial was denied. The prior conviction was found true, probation was denied and defendant was sentenced to state prison.

This is an appeal from the judgment and the order denying the motion for new trial.

On January 7, 1966, at 12:30 a.m., Mrs. Dumas, an employee of the R & C Cafe, locked all the doors and windows of the cafe and gave no one permission to enter.

Numerous burglaries of juke boxes, shine stands and telephone booths had occurred in the area. At about 2:45 a.m., on January 7, 1966, Officers Waddy and McBride, who had been engaged in investigation of some such burglaries, observed defendant walking through the parking lot of a closed service station,…