Warwick

Appellant was found guilty by a jury of burglary in the first degree and of having suffered a prior conviction of felony, for which he was sentenced to imprisonment in the state prison. This appeal was taken from the judgment of conviction and the order denying his motion for new trial. The single point urged is that the evidence is legally insufficient to sustain a verdict of first degree burglary.

Section 460 of the Penal Code provides in part that “Every burglary of an inhabited dwelling-house or building committed in the night-time ... ” is burglary of the first degree. The place burglarized in the present case was an automobile tire store conducted by John McKean at 616 Van Ness Avenue, San Francisco, and it is conceded that the place was entered at 8:30 o’clock in the evening. Appellant contends, however, that at the time the store was entered it was "not an “inhabited” building within the meaning of said code section, and that consequently the crime established was only burglary of the second degree. In this regard the evidence shows that the business hours of said store were from 8 in the morning to 6 at night; that after 6 at night there was no one in or around the…