Powell

Robert Daniel Powell was charged by information with three counts of burglary, it being alleged in each count that he did wilfully and unlawfully enter a certain building with intent to commit theft. Following a trial the jury returned a verdict of guilty on all three counts. Defendant moved to dismiss the second count and the motion was granted. Defendant’s application for probation was denied and judgment was pronounced on the first and third counts. Defendant has appealed from the judgment and as grounds for a reversal contends (1) that the evidence is insufficient to support the judgment; (2) that the instructions were prejudicial ; and (3) prejudicial error in the admission of evidence. Before discussing these contentions we shall summarize briefly the evidence as disclosed by the record.

On the afternoon of March 3, 1960, appellant drove a black 1949 Buick automobile into the service station operated by one Charles Smith. He was accompanied by another man. Appellant got out of the car, ordered a dollar’s worth of regular gas and then proceeded to the restroom. Smith finished servicing the car and was waiting for appellant when he came out. Appellant met him with a…