Molarius

Defendant, Frank Martin Molarius, Jr., appeals from a judgment rendered on a jury verdict finding him guilty of burglary in the second degree (Pen. Code, § 459), and from the order denying his motion for a new trial. The contentions on appeal are that certain evidence used at the trial was obtained by an unlawful search and seizure, and that the identification evidence adduced at the trial does not sufficiently support the verdict.

We turn first to the appeal from the order denying the motion for a new trial. This appeal must be dismissed since it is an appeal from a nonappealable order under section 1237 of the Penal Code, as amended by Stats. 1961, chapter 850. (People v. Simons, 208 Cal.App.2d 83 [ 25 Cal.Rptr. 57 ].)

The record reveals the following facts: On December 19, 1961, the general store in Bradley, California, was burglarized. On that date, about 2 a.m., Mrs. Aliene Harrington, who lived next door to the store, was awakened by loud popping noises. She got up, went to the window, looked into the alleyway between her home and the store, and saw a man walk down the alley between her home and the store. She remained at the window for a few moments and observed a second…