Costa

Appellants were found guilty by a jury of an attempted burglary, and after motions for probation and new trial were heard and denied were sentenced to imprisonment in the state prison for the period prescribed by law. Thereupon they took this appeal from the judgment of conviction and the order denying their motions for new trial. In presenting their appeal they make no claim that they were tried unfairly or convicted unjustly, it being stated in their brief, in this regard, that they “do not seek a reversal of their conviction, nor at this time do they attack the order denying their motions for new trial”; but they 'contend that in determining their applications for probation the trial court erroneously took into consideration certain evidence relating to the possession of a revolver; and they ask, therefore, that the judgment of sentence be set aside and that the cause be remanded to the trial court for the purpose of having their applications for probation again considered and determined.

Section 460 of the Penal Code declares, in part, and the jury in the present case was instructed, that “every burglary of an inhabited dwelling house or building in the night time, and every…