Higgins

The defendant was convicted of the crime of burglary of the first degree, and prosecutes this appeal from the judgment and the order denying his motion for a new trial.

The claim for a reversal of the judgment is based, principally, upon alleged misconduct of the district attorney in his address to the jury. Objection is also urged against one of the instructions given by the court.

The evidence presented by the record is conclusive of the guilt of appellant. The place alleged and proven to have been burglariously entered by the accused was a saloon, located in a small town called Bloomfield, in Sonoma county. In addition to a number of strong circumstances pointing to the defendant’s guilt, two witnesses positively testified that they saw him in the saloon after the proprietor had closed the establishment for the night. The defendant did not take the witness-stand, nor did he offer any testimony contradictory to that introduced by the people.

During the course of his argument to the jury, the district attorney, among other things, said: “Then, in addition to that was the other bottle which he has not yet found, and two beer bottles which were found, which correspond with the…