Ross

Defendant was convicted of burglary in the first degree, and appealed from the judgment and from an order denying his motion for a new trial.

When the jewelry store of Albert Samuels & Company, at the corner of Fifth and Market Streets, San Francisco, was closed on the evening of January 19, 1922, there were eight strings of pearls, valued at several thousand dollars, left on display in the show-window. The clerk who closed the store returned the following morning at 8:30 o’clock, to find the glass window broken and the pearls missing. On the 7th of February, 19-22, the defendant was arrested and charged with the theft.

Defendant contends that the evidence is insufficient to sustain a verdict of guilty of burglary in the first degree, committed during the period “between sunset and sunrise.” (Pen. Code, secs. 460 and 463.) The evidence is undisputed that the burglary was committed between the hours of 6:15 o’clock (after sunset) January 19, 1922, and some time prior to 8:30 o’clock (one hour and seventeen minutes after sunrise) on the following morning. The store where the burglary was committed is located at a corner of two of San Francisco’s principal business streets. It was…