Berry

—This is an appeal from a judgment of conviction of burglary.

Appellant was originally charged with burglary with explosives (Pen. Code, § 464) but following the preliminary hearing the information was amended to charge him in a second count with burglary. The case was submitted on the transcript of the preliminary hearing augmented by further testimony by stipulation. The court found appellant guilty of burglary, dismissed the first count, denied probation, and sentenced appellant to state prison for the term prescribed by law.

There is no merit to appellant’s contentions that he was arrested without probable cause and interrogated in violation of his constitutional rights.

The record discloses that Samuel Kotnik at around 11 p.m. on the evening of April 27, 1965, reported to the sheriff’s office a suspicious incident which occurred in the vicinity of his restaurant. That evening Kotnik, who lived in Newhall near the restaurant which he owned and operated, was aroused by loud sounds outside his residence. When he went outside to investigate, his attention was attracted by a flash of fire in the phone booth located near his restaurant on San Fernando Road. The area was well…