Wilson

Appellant was charged by information with two felonies, burglary and petty theft with a prior conviction for petty theft. (Pen. Code, § 666, subd. 3). Appellant admitted the prior conviction and entered a plea of not guilty to both charges. A jury trial resulted in a verdict of guilty as charged, on both counts. The trial court denied appellant’s motion for a new trial, dismissed the second count, denied probation, and sentenced the appellant to the state prison. This appeal is taken from the judgment of conviction and the order denying the motion for a new trial.

The following facts appear from the evidence: on April 20, 1957, a sales clerk at the J. J. Newbury Company store at 1921 Broadway, Oakland, saw the appellant slip two pairs of blue jeans into a box which he was carrying. He did not pay for them, but asked the sales clerk where he could buy a coping saw and walked toward the hardware counter. The sales clerk called a shoplifting code number. The store manager came and questioned the appellant in a back room. Appellant admitted taking the articles. Upon realizing that the manager was going to turn him in, he struck the manager with the coping saw and struggled until the…