King

Appeal from the judgment and order denying defendant’s motion for a new trial.

Appellant was accused jointly with Thomas Baker and Harry Hamilton of burglary, committed on April 23, 1902, in the city and county of San Francisco. The information also alleged two prior convictions of burglary against both appellant and Hamilton, and one, prior conviction of robbery against Baker. Appellant admitted the prior convictions charged against him, and pleaded not guilty to the main charge. No evidence was offered on the part of appellant, and he was convicted of burglary in the first degree. He was sentenced to imprisonment in the penitentiary for twenty years, the sentence to run concurrently with another of ten years, the judgment imposing which has been affirmed by the district court of appeal of the third appellate district. {People v. King, 4 Cal. App. 213 , [ 87 Pac. 400 ].)

Appellant does not contend that the evidence was insufficient to warrant the verdict of the jury, but he complains of the refusal of the court to give certain instructions. The first of such instructions is that numbered 40, which reads r “If the evidence in this case proves no more than the fact that defendant…