Clinton

Defendants were charged with the crime of burglary. They were jointly tried and convicted of burglary in the second degree and sentenced to the state prison. All three of the defendants were formerly tried upon the same charge and were convicted of the crime of burglary in the first degree. They appealed to this court and the judgment was reversed upon the ground that there was not sufficient evidence to warranat a verdict of burglary in the first degree, and the judgment was accordingly reversed and the case remanded for retrial. (See People v. Clinton et al., 70 Cal. App. 262 [ 233 Pac. 78 ].) The facts briefly stated show that appellants, together with others, burglarized a haberdasher’s store at Burlingame and stole merchandise therefrom, which was subsequently recovered from them in San Francisco.

Several grounds are urged for a reversal of the instant judgment. It is first claimed that the jury should have found for appellants on their special pleas of once in jeopardy and formal acquittal; that the trial court erred in the admission of certain testimony and also in its instructions to the jury. Alleged misconduct of the district attorney is assigned as error and it is…