Tidmore

The defendant was charged with the crime of burglary. (Pen. Code, § 459.) It was alleged that he entered the residence of Mr. and Mrs. James Hughes with the intent to commit rape. The defendant waived his right to trial by jury. It was stipulated that the cause could be submitted on the transcript of the testimony taken at the preliminary examination, together with such further evidence as either party desired to offer. Further testimony was received. The defendant was found to be guilty of burglary of the first degree. His motion for a new trial was denied. The proceedings were suspended without the imposition of sentence and the defendant was placed on probation for a period of three years, a condition thereof being that he spend the first 90 days in the county jail. The public defender, who represented the defendant at the trial, has undertaken to represent him on this appeal. The appeal is from the judgment (order granting probation) ,

Since the defendant’s contention is that there was no substantial evidence that he entered the residence with the intent to commit rape, it is necessary to set forth a résumé of .the testimony. Mrs. Hughes testified that she knew the defendant.…