Joy

The appellant was charged with burglary in having entered a freight-car of the Southern Pacific Company in San Francisco with intent to commit larceny therein. There was also a charge of a prior conviction of petit larceny against appellant. The prior conviction was confessed, and on a trial the defendant was convicted of burglary in the second degree, and sentenced to five years in the state prison.

1. The first contention for a reversal of the judgment is that there was no evidence against defendant except the finding of some malt stolen from the burglarized car, in his possession soon after it was stolen. The evidence touching the matter is as follows: The defendant is twenty-two years of age, and with three other boys he was found about two blocks from the said car at 8 o’clock in the evening, and less than an hour after the burglary was committed. Each of said boys had on his shoulder a sack of malt that had just *826 previously been stolen from said car. On being approached by a police officer, the boys, other than defendant, dropped the sacks of malt and ran away, but the police officer seized the defendant as he was in the act -of dropping the malt from his shoulder. The…