Osterhelt

Upon an information charging defendant with commission of the crime of burglary, the defendant was tried before a jury, which found him guilty of burglary in the second degree. Appellant made oral application for permission to file a written application for probation, which application was by the court denied, and defendant was sentenced to the state prison. He appeals from an order denying his motion for a new trial.

The defendant rests his appeal upon two alleged errors of the trial court. These are that the court committed prejudicial error in striking out the testimony of one John Bower, a character witness produced by appellant; and that the court abused its discretion and committed prejudicial error in refusing to appellant permission to file an application for probation. The testimony of the witness Bower, after he had duly qualified to answer on the subject, was that defendant’s reputation for honesty was good. Nevertheless, this testimony was stricken from the record for the reason that the witness on cross-examination admitted that he had never heard the defendant’s reputation discussed. It is conceded by respondent that the action of the court in granting the motion to…