Patterson

The defendant was found guilty of burglary in the first degree. Prom the judgment of conviction he has appealed and has brought up a copy of the ‘ record of the action” (Pen. Code, sec. 1207), and a certified copy of the reporter’s notes as transcribed.

The appellant presents two points. One that the evidence was insufficient to sustain a verdict of burglary in the first degree and the other point is that the trial court gave to the jury an erroneous instruction defining burglary in the first degree. The two objections may properly be considered together. [1] The undisputed evidence was to the effect that the defendant entered an uninhabited dwelling and stole therefrom the plumbing fixtures. There was no evidence to the effect that when he entered the building or at any other time he was armed with a deadly weapon or that during the commission of the offense that he assaulted any person. Our statute is as follows: “Burglary defined. 1. Every burglary of an inhabited dwelling-house or building committed in the night time, and every burglary, whether in the daytime or night time, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms…