Higbee

Defendant was convicted of the crime of burglary in the second degree and sentenced to the state prison. He had previously been convicted under the same information of burglary in the first degree, but this judgment of conviction was reversed and a new trial ordered upon the ground that the evidence was insufficient to support the verdict of first degree burglary for the reason that there was none introduced at the trial tending to show that the.store entered was either an inhabited dwelling-house or an inhabited building, or that defendant was armed with a deadly weapon, or that any person was assaulted during the commission of the burglary. (People v. Higbee, 70 Cal. App. 788 [ 233 Pac. 79 ].) Several grounds are here urged

for a reversal of the present judgment, among which is a claim of the insufficiency of the evidence to warrant the conviction. There is evidence to show that one Forsythe, the prosecuting witness, owned a haberdasher’s store in the city of Burlingame, county of San Mateo. Forsythe had left his store on the evening of January 28, 1924, about 6:30 o’clock, and upon his arrival next morning he discovered that a rear door had been broken open and a lot of…